Key takeaways
Major reform to Mental Health Act
Biggest changes since 2008 now in effect.
New tribunal rights for patients
Clearer timelines for applications and reviews.
Expanded powers for secretary of state
Includes authority to impose liberty restrictions.
The Mental Health Bill has now received Royal Assent bringing the biggest reform of the Mental Health Act 1983 (‘MHA’) since the last substantive changes were made in 2008.
Sections 30(2), 32, 35, 36(1) and (3)(b), 38 and 39 of the Mental Health Act 2025 come into force at the end of the period of two months beginning with the day on which the Act was passed. This means the following changes to the Mental Health Act 1983 will come into force on 18 February 2026:
Changes to Section 75
Where a restricted patient has been conditionally discharged and is not subject to conditions which amount to a deprivation of liberty and not recalled to hospital, then the patient may apply to the Tribunal as follows:
After a period of 12 months from the point of the conditional discharge being made, but no later than 2 years, where the original conditions did not amount to a deprivation of liberty
After a period of 12 months from the point that any conditions amounting to a deprivation of liberty ceased to be in place, but no later than 2 years
Any subsequent period of 2 years
Where a restricted patient has been conditionally discharged subject to conditions which amount to a deprivation of liberty, but not recalled to hospital, then the patient may apply to the Tribunal as follows:
After a period of 6 months but no later than 12 months from the date on which they became subject to conditions amounting to a deprivation of liberty (whether or not that was the date on which the patient was conditionally discharged), and
Any subsequent period of two years.
Where a restricted patient has been conditionally discharged subject to conditions which amount to a deprivation of liberty, but not recalled to hospital, then the Secretary of State must refer the patient’s case to the Tribunal as follows:
After 12 months beginning on the date that the patient became subject to conditions amounting to a deprivation of liberty (whether or not that was the date on which the patient was conditionally discharged), and
Each subsequent period of two years.
(This will not apply if the case has already been considered by the Tribunal during each period in question).
Where the patient’s case has not been considered by the Tribunal for the past 4 years and there is no pending application or reference to the appropriate tribunal in relation to the patient’s case.
There will be provision for the Secretary of State to have the power by Order to amend the timeframes identified.
Conditions amounting a deprivation of liberty may only be imposed if the Tribunal is satisfied that:
Conditions amounting to a deprivation of the patient’s liberty are necessary for the protection of another person from serious harm while the patient remains discharged from hospital, and
For the patient to remain discharged subject to those conditions would be no less beneficial to their mental health than for them to be recalled to hospital.
Changes to Section 71 - References by Secretary of State concerning restricted patients.
The Secretary of State continues to have the power to refer the case of a restricted patient to the Tribunal at any time but the Secretary of State will have the power by Order to amend the provisions in this section.
Where a reference to the Tribunal is made in respect of a patient who has been conditionally discharged and not recalled to hospital the tribunal may -
vary any condition to which the patient is subject in connection with the patient’s discharge or impose any condition which might have been imposed in connection with their discharge, or
direct that the restriction order, limitation direction or restriction direction to which the patient is subject ceases to have effect, and if the tribunal gives a such a direction, the patient ceases to be liable to be detained by virtue of the relevant hospital order, hospital direction or transfer direction.
Only impose conditions amounting to a deprivation of liberty if satisfied that
conditions amounting to a deprivation of the patient’s liberty are necessary for the protection of another person from serious harm while the patient remains discharged from hospital, and
for the patient to remain discharged subject to those conditions would be no less beneficial to their mental health than for them to be recalled to hospital.
Changes to Section 42 – Powers of Secretary of State in respect of patients subject to restriction orders.
This allows for the Secretary of State to impose conditions amounting to a deprivation of a patient’s liberty within a restriction order, if the Secretary of State is satisfied that those conditions are necessary for the protection of the public from serious harm.
Changes to Section 73 - Power to discharge restricted patients.
Where an application to the appropriate tribunal is made by a restricted patient who is subject to a restriction order, when considering whether to conditionally discharge the patient, the Tribunal must now also consider whether in addition to the power of recall, there are grounds to impose conditions amounting to a deprivation of liberty.
When considering an application made by a restricted patient the Tribunal may impose conditions amounting to a deprivation of liberty where it is satisfied that:
conditions amounting to a deprivation of the patient’s liberty would be necessary for the protection of another person from serious harm if the patient were discharged from hospital, and
for the patient to be discharged subject to those conditions would be no less beneficial to their mental health than for them to remain in hospital
The Secretary of State may at any time impose conditions amounting to a deprivation of liberty if satisfied that those conditions are necessary for the protection of the public from serious harm.
Changes to Section 48 - Removal to hospital of other prisoners.
The scope of section 48, which allows transfer from prison to hospital for mentally disordered patients, is extended to include persons:
remanded to youth detention accommodation under section 91 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012
detained under the Immigration Act 1971
detained under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State),
detained under section 36 of the UK Borders Act 2007 (detention of offenders for deportation), or
detained under regulation 32 of the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052) (which are saved by the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 (S.I. 2020/1210)).
The remainder of the changes will come into force in accordance with regulations identifying relevant dates made by the Secretary of State.
If you or your organisation needs advice, training or support in relation to the forthcoming changes to the MHA 1983, please do not hesitate to contact: Louise Wilson, Rachael Watkinson, Paul Allerston
