The Mental Health Act 2025

On 18 February 2026, the Mental Health Act 2025, which will overhaul the Mental Health Act 1983 (“the act”) and provide a revised legal framework to detain and treat people who are at risk of harm to themselves and others, came into force (in very small part) having received Royal Assent on December 18 2025.  This follows years of campaigning, consultations and review. The final report of the Independent Review of the Mental Health Act, chaired by Professor Simon Wessely, was published in December 2018. 

The changes which came into force in February 2026 are the first step in what will be a very gradual implementation, which is expected to take place over an eight to 10 year period.  The decade-long phasing in will enable services to prepare and adapt to the new legislative framework and whilst this incremental approach no doubt increases the chance of successful implementation, it is of course necessary for this to be matched with sufficient resources in the guise of workforce, revenue and capital.   

The intention of the legislation, as set out in the King’s speech briefing note, is to:

• revise the detention criteria to ensure people can only be detained under the act if they pose a risk of serious harm to themselves or others and where there is a reasonable prospect that the treatment would have therapeutic benefit
• review and shorten the amount of time a patient can be kept in detention for treatment and increase the frequency of reviews and appeals of detentions and treatment
• further limit the extent to which people with a learning disability and/or autistic people can be detained and treated under the act
• introduce duties on commissioners to improve understanding of the risk of crisis among people with a learning disability and/or autistic people in their local areas and ensure an adequate supply of community services to prevent inappropriate detentions
• add statutory weight to patient’s rights to be involved in planning their care and to choose and refuse treatment
• replace the nearest relative with the nominated person role, chosen by the patient
• extend access to Independent Mental Health Advocates (IMHAs) to informal patients and bring in an opt-out system for detained patients
• remove police stations and prisons as places of safety under the act.
• support offenders with severe mental health problems to access timely care as early as possible and improve the management of patients subject to restrictions

The reasons behind the need for change are comprehensively and succinctly set out in the House of Commons research briefing published in May 2025 and may be familiar to many already, but in summary, Professor Wessely’s Review set out to understand:

• the rising rates of detention under the act
• the disproportionate numbers of Black people and people from minority ethnic backgrounds in the detained population

• concerns that some processes in the act are out of step with a modern mental health system, including:

   

  • the safeguards available to patients, such as tribunals
  • the ability of patients to determine which family or carers receive information and are involved in their care
  • concerns that detention may be used to detain rather than treat
  • the effectiveness of community treatment orders (CTOs)
  • timely support for patients subject to criminal proceedings 

The Review concluded that there is a clear case for changing the act: rates of detention were rising and CTOs were being used more widely than government had anticipated when introduced in 2007; there was unacceptable overrepresentation of Black people in the detained population; poor experiences of detention under the act and treatment in hospitals were identified, especially amongst Black African and Black Caribbean men; and there were concerns about how the act works for people with a learning disability and those with autism, with the act occasionally being used inappropriately to deal with crises that have occurred due to a lack of good community care.  Those with autism and learning disabilities also often had poor experiences of detention and faced disproportionate use of restrain and medication. 

From the 150 recommendations the review team came up with, those highlighted in the research briefing were:

• strengthening the focus on human rights and including principles on the face of the act which focus on patient choices and autonomy
• introducing advance choice documents to enable people to set out their wishes about care and treatment
• providing skilled advocates for all mental health inpatients
• enabling patients to choose a family member or friend as a nominated person with a role in decisions about the use of compulsory powers
• increasing the scope for tribunals to review detention and people’s concerns about their care
• including a statutory right to a care and treatment plan 

One of the major aims of the new act has been to remove learning disabilities or autism as the sole reason for people to be detained under section 3 of the act, people must now also have a co-occurring mental disorder.  The National Autistic Society refers to the passage of the Mental Health Bill as, “a huge step in securing autistic people’s rights to better care and respect for their liberty,” but somewhat presciently, the former Assistant Director of Policy, Research and Strategy at the National Autistic Society, Tim Nicholls, states, “But, for me, the key to the reforms’ success will be the new duty to provide sufficient support to meet autistic people’s needs in the community to prevent admissions in the first place.”  The gradual and careful implementation of the new act will not be rewarded by success if the resources are an afterthought.

One of the other recommendations set out in Professor Wessely’s review, was that the legislative changes should address the conundrum resulting from Secretary of State for Justice v MM [2018] UKSC 60, per p.202 of the Review:

Given the Supreme Court judgment, we suggest that the Government should legislate to give the Tribunal the power to discharge patients with conditions that restrict their freedom in the community, potentially with a new set of safeguards. If a solution is not found, the numbers of offenders held in hospital will continue to rise because they are unlikely to get out again. Not only is this clearly wrong for the individuals concerned, it also means they are taking up valuable bed space, and obstructing efforts to transfer people in from prison.

In MM the Supreme Court clarified that neither the Secretary of State nor the Mental Health Tribunal could lawfully impose conditions on a restricted patient subject to a conditional discharge which would amount to a deprivation of liberty, and this power could not be inferred.  Where patients lacked capacity to make decisions about their accommodation, care and treatment, a deprivation of liberty following discharge could be imposed by the Court of Protection or by way of a Standard Authorisation. Patients who retain capacity in respect of their accommodation, care and treatment cannot, of course, be deprived of their liberty under any form of Mental Capacity Act 2005 authorisation. 

As a result of the judgment in MM, therefore, it was not possible to grant patients with capacity a conditional discharge because there was no means by which they could be lawfully deprived of their liberty.  This resulted in many patients remaining in hospital as there was no other avenue available, even where inpatient treatment was no longer required. Prior to the new act coming into force, the Secretary of State, in suitable cases, granted patients with the requisite mental capacity extended leave under s.17(3) under the act so they can both reside in the community and be lawfully deprived of their liberty. 

So for now, what does this all mean?  The few sections of the 2025 act that have come into force are: ss. 30(2), 32, 35, 36(1), 36(3)(b), 38 and 39.   These new sections implement changes to ss. 42, 48, 71, 73 and 75 of the act.  Section 35 of the 2025 act, which amendments s.42 and s.73 of the act, is probably the most pertinent of the amendments as it has brought in changes to conditional discharge in that the act now provides for restricted patients to be conditionally discharged with deprivation of liberty conditions, thus ostensibly addressing the MM lacuna.   This change has created a power that enables the Secretary of State for Justice to discharge a patient with conditions amounting to a deprivation of liberty, provided that such conditions are necessary for the protection of the public from serious harm.  The Tribunal can make such an order where it is satisfied that both it is necessary for the protection of another person from serious harm if the patient were discharged from hospital and that for the patient to be discharged subject to those conditions would be no less beneficial for their mental health than for them to remain in hospital.  

Section 35 also amends s.145(1) (interpretation) to include that “deprivation of liberty” and related expressions are to be construed in accordance with section 64(5) and (6) of the Mental Capacity Act 2005 (which in turn refers to Article 5 ECHR). 

To assist in the implementation and understanding of the changes, guidance has been produced by HM Prison and Probation Service and the First Tier Tribunal.

The guidance from the Tribunal notes that there are still only two discharge options available: discharge absolutely and discharge conditionally.  Where the Tribunal now conditionally discharges patients, these conditions either do or do not deprive the patient of their liberty. The new provisions do not make reference to patient eligibility and do not make reference to particular mental disorder or diagnoses.  Notably, the new provisions also do not make any reference to and do not distinguish between patients who have capacity to make decisions about their accommodation, care and treatment and those who do not have such capacity.  Interestingly the guidance from the First Tier Tribunal does note that whilst there is no reference to particular mental disorders or diagnoses, the majority of patients which will be subject to conditions which create a deprivation of liberty are likely to have “learning difficulties or some other lifelong neurodevelopment condition.”  This could be seen potentially at odds with s.3 of the 2025 Act – Application of the Mental Health Act 1983: autism and learning disability. Under this section, the act will be amended to prevent people from being detained under section 3 of the act (admission for treatment) on the basis of autism or learning disability – having a learning disability or autism will no longer be a reason for people to be detained under section 3 of the Act, unless they have a co-occurring mental disorder. This s.3 amendment is not part of the current tranche of changes, but it seems anachronistic in the context of the new legislation for the guidance to refer to learning difficulties and neurodevelopment conditions in this way.  Hopefully, how this new power will be used in practice will not undermine the progress intended to be brought about for those with learning difficulties and autism. 

The guidance from HM Prison and Probation service refers to “supervised discharge” as being a “subset of conditional discharge where a condition of that discharge amounts to the deprivation of a restricted patient’s liberty in the community.”  As noted in the guidance provided by the Tribunal, the 2025 act does not use the term “supervised discharge” and this is not a new legal concept or a new form of discharge.  The Tribunal refer to this “subset” of conditional discharge as CD (Dep) (i.e. conditional discharge with a deprivation of liberty).  It is worth bearing these seemingly differing uses of terminology in mind to avoid confusion.  

The HM Prison and Probation guidance details which patients “supervised discharge” (or CD(Dep) in the Tribunal’s terminology) is most suited to, and it is worth setting this out because it provides a helpful insight into the way in which it is anticipated the new power to discharge with a deprivation of liberty condition will be used:

2.1 Supervised discharge [CD (Dep)] will not be right for most restricted patients who are on a pathway towards discharge. It is not a stepping stone to a conditional discharge with no deprivation of liberty and should be the last option rather than the first. It is better suited to patients whose diagnosis is of a static, lifelong condition rather than a relapsing and remitting mental disorder though there is no definition or diagnosis embedded in the legislation. 

2.2 It is not suited to patients whose risks to the public would be very difficult to manage in the community, recognising that the conditions of a conditional discharge are not enforceable and there is a requirement for the patient to accept supervision. Relational security will be of significance in these cases. Patients pushing boundaries and non-compliance with conditions would likely lead to swift recall as such behaviour would heighten their risk of harm to others. For example, patients who are unlikely to be suitable include (but is not limited to) those: 

• who have used drugs while on overnight leave
• who may not take psychotropic medication if in the community
• who would seek to undermine supervision subtly or otherwise
• who would not comply with supervision by staff
• where risk to the public is unmanageable despite supervision
• whose oppositional behaviours and emotional dysregulation requires more robust measures than the relational security available in the community

2.3 Supervised discharge [CD (Dep)] is not appropriate for any patient who is able to use regular unescorted community leave, even if that leave has been rescinded for reasons such as absconding, using drugs, bringing in contraband or has displayed other inappropriate behaviours on leave. 

2.4 Supervised discharge [CD (Dep)] will not be possible for transferred prisoners who come before the Tribunal for a review of their detention as the more usual route through end of sentence or via the Parole Board will remain appropriate in eligible cases. Supervised discharge [CD (Dep)] is not a control mechanism, but rather an option for the small number of patients who need intensive support and supervision, tailored to their individual requirements, to be able to live and remain in the community without causing harm to others.

For those used to dealing with deprivation of liberty under the Mental Capacity Act 2005 and having established that the new provisions of the 2025 act do not make any reference to and do not distinguish between patients who have capacity (accommodation, care and treatment) and those who do not, you may at this point already have asked yourself how capacity and consent will come into all of this.  Well, helpfully this has been addressed in the Tribunal’s guidance which directly answers this question:

Does a patient have to consent to being subject to conditions which deprive them of their liberty? 

“A patient may or may not have the capacity to consent, but the legislation does not refer to capacity in this regard. The relevant question to ask in each case is whether the patient either agrees with (or at least does not object to) the condition which deprives them of their liberty. If they do object to it, then it is unlikely they will comply with it and so it should not be imposed. It is essential to remember that the new legislation cannot force a deprivation of liberty condition onto an unwilling patient and the Tribunal making a CD (Dep) does not give any power to the placement to restrain a patient who, in breach of a condition, chooses to leave their accommodation unaccompanied.”

Quite how this will work alongside the relevant interpretation of Article 5 ECHR that a deprivation of liberty is confinement to a restricted place for a not negligible period, to which the person either cannot or does not consent and which is imputable to the state is not entirely clear.  The interplay between the newly implemented legislation and Deprivation of Liberty Safeguards and the Court of Protection will no doubt need case law to iron out this juxtaposition; a deprivation of liberty by definition has long been understood in the Court of Protection to necessitate confinement without consent, but the Mental Health Act amendments relating to discharge with a deprivation of liberty condition do not appear to be working to the same definition as it sees such consent as integral to the use of a deprivation of liberty. 

The Tribunal guidance poses the question “What about conditionally discharged patients who are currently subject to Deprivation of Liberty Safeguards/Court of Protection orders?” 

As the new provisions do not distinguish between patients who have or who lack capacity to make decisions about their accommodation, care and treatment, there is no reason why patients currently subject to DoLS or CoP orders cannot be subject to a CD(Dep). Indeed, there are likely to be a number of advantages to this approach including the avoidance of both delay whilst waiting for the DoLs or CoP order and the difficulties which can arise if the authorisation of the deprivation of liberty is not renewed in a timely manner.”

Until the “consent” issue is clarified by the courts, it is difficult to say how supervised discharges / CD (Dep) can be used as envisaged in place of DoLs or CoP orders as the latter require the absence of (capacitous) consent and the former, as stated in the guidance, is unlikely to be imposed unless the patient gives their consent. 

The other changes that have been implemented as of February 2026 do not bring about such a potential seismic shift to the deprivation of liberty landscape but are important nonetheless and for completeness are set out below:

s.30(2) – period for tribunal application.  This section amends s75 of the act such that conditionally discharged patients who are not subject to conditions amount to a deprivation of liberty and who have not been recalled to hospital have the right to make an application to the Tribunal for review of their detention between 12 months and two years from the date on which the patient was conditionally discharged or ceased to be subject to deprivation of liberty conditions, and every two years thereafter.  Restricted patients who are conditionally discharged with conditions amounting to a deprivation of liberty have the right to make an application to the Tribunal between six months and 12 months from the date on which the patient became subject to the deprivation of liberty conditions and every two years thereafter. 

s.32 – references: restricted patients subject to deprivation of liberty conditions.  This section amends ss.71 and 75 of the act.  Under these amendments, the Tribunal’s powers are extended when reviewing the detention of a conditionally discharged patient following discretionary referral to give the Tribunal the power to vary or impose conditions to which the patient is subject, including imposing deprivation of liberty conditions where the relevant threshold is met.  Automatic referrals by the Secretary of State are extended to conditionally discharged patients subject to conditions amounting to a deprivation of liberty, the effect of this being that where the Tribunal has not considered the patient’s case, the Secretary of State is required to refer such “CD (Dep)” patients 12 months from the date they become subject to deprivation of liberty conditions and each two year period thereafter. This amendment also provides that the Secretary of State must refer to the Tribunal any “CD (Dep)” patient who has not been recalled to hospital if the patient’s case has not been considered by the Tribunal within the last four years, and there is not already any Tribunal application or reference pending. 

ss.36(1) and (3)(b) – transfer of prisoners and others to hospital: conditions.  This section makes minor amendments to ss.47 and 48 of the act, which relate to prisoners and other detainees who become acutely mentally unwell in prison or in another place of detention who are transferred to hospital for treatment 

s.38 – transfer directions for persons detained in youth detention accommodation.  This amends s.48 of the act, under which the Secretary of State has the power to make a transfer direction allowing for individuals on remand in a prison or remand centre or remanded in custody by a magistrate’s court, and civil immigration detainees, to be transferred to hospital if they are suffering from a mental disorder requiring inpatient care.  If children are remanded to youth detention accommodation by the Crown Court, there is currently no provision for the Secretary of State to make a transfer direction under s.48.  Remand centres have not been utilised in the criminal justice system for over a decade, with children arrested for or formally charged with a crime being now being remanded to youth detention accommodation.  This amendment updates the defunct references and includes youth detention accommodation under the s.48 provisions.