The long-awaited new Mental Health Act received Royal Assent on 18 December 2025.
This Act amends the MHA 1983, and as such is incomprehensible on its own, so below is a breakdown of what has come into effect so far.
On 18 December 2025 we learnt what the Mental Health Bill was to be called: the Mental Health Act 2025 (MHA 2025), and that it would cover England and Wales. The Secretary of State was also given the power to make regulations to smooth its implementation.
On 18 February 2026 several the clauses of the MHA 2025 came into effect thus amending some sections of the MHA 1983. In this article I will examine the changes made to the following sections: S. 42; S. 48; S. 71; S. 73; S. 75; and S. 145.
The changes to SS. 71, 73, and 145 plugs the gap regarding capacitous patients on a Conditional Discharge (CD) created by the decision in Secretary of State for Justice v MM [2018] UKSC 60, which held that a First-tier Tribunal Mental Health (Tribunal) did not have the power to put conditions on a CD that amounted to a deprivation of liberty. Further caselaw led to the anomalous situation where an incapacitous patient could be on a Deprivation of Liberty Safeguard and a CD, and therefore out of hospital, while a capacitous patient, who also requires restrictions in the community that amount to a deprivation of liberty, could not be placed on a DOLS due to their capacity and therefore could not be discharged. Thankfully, the Mental Health Unit (MHU) at the Ministry of Justice stepped in in January 2019 and issued guidance entitled, ‘Discharge conditions that amount to deprivation of liberty’, which guaranteed that the MHU would agree to such patients with capacity being in the community on extended S. 17(3) MHA leave.
The good news is that as of February 2026 the capacity of a patient detained under SS. 37/41 MHA is no longer an issue, as the Tribunal and MHU can now specify conditions that amount to a deprivation of liberty as part of a Conditional Discharge, regardless of when the CD came into force (S. 75(5) MHA).
Legal Tests
Just to make sure that we are all on our toes, there are two different legal tests, depending on which body imposes the deprivation of liberty conditions:
The MHU can impose such conditions if they are ‘necessary for the protection of the public from serious harm’ (S. 42(2A) and S. 73(5B) MHA 1983).
The Tribunal can impose such conditions if they are necessary,
‘for the protection of another person from serious harm if the patient were discharged from hospital, and is also satisfied that 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’ (S. 73(2)(c)(ii), see also S. 71(4B) MHA 1983).
The power to impose deprivation of liberty conditions applies to both application and referral hearings of the Tribunal (S. 75(3) MHA).
Serious harm
Given that there is no case law containing a definition of what constitutes ‘serious harm’, the nearest being MM v ABM University Health Board [2018] UKUT 120 (ACC), concerning the disclosure of information to a patients during Tribunal proceedings, one should rely on the general accepted understanding of the phrase.
Equal Benefits
As stated above, a deprivation of liberty condition can be applied, if doing so places the patient in a position ‘no less beneficial to their mental health than for them to remain in hospital’.
In other words, the patient’s mental health would not deteriorate by residing in the community under conditions that amount to a deprivation of liberty but the patient would remain as well as they are in hospital.
Deprivation of Liberty
S.154 MHA 1983 was also amended, such that is now includes:
‘Deprivation of liberty’ and related expressions are to be construed in accordance with section 64(5) and (6) of the Mental Capacity Act 2005.
The relevant sections in S. 64 MCA state:
(5) In this Act, references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention.
(6) For the purposes of such references, it does not matter whether a person is deprived of his liberty by a public authority or not.
Thus, we return again to Art. 5 ECHR:
Right to liberty and security
1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(e) the lawful detention … of persons of unsound mind.
Next Steps
According to the MHU, it will be concentrating on the following groups to bring those patients’ detention in line with the new law:
- Those on extended S. 17(3) MHA leave, i.e. those patients who would be on a DOLS but have capacity;
- Patients who are in the community on a CD and DOLS;
- Patients who have been in hospital for over 10 years due to the need for restrictions to manage risk
Application Periods
Changes have also been made to the application and reference periods for those patients on a CD (Dep) so that patients detained on a CD (Dep) can now apply for a Tribunal once within the second 6 months of their detention, then once in every two-year period (S. 75(2A) MHA).
Eligibility periods for patients not detained on a CD (Dep) remain as they were. However, the application period for these patients will run either from the date that the conditions of the CD (Dep) that amounts to a deprivation of liberty is removed, or when they leave hospital on a CD (S. 75(2) MHA).
Reference Periods
For patients on a CD (Dep) references to the Tribunal will be after 12 months, thereafter two-yearly (S. 75(2C) MHA). As before, there are no such referrals for patients on a CD without a deprivation of liberty condition.
For patients that switch between detention on a CD and CD (Dep) the Secretary of State will refer for a Tribunal or every 4 years if no other reference has been made (S. 75(2E) MHA).
All of these periods can now be varied by the Secretary of State (S. 75(2F) MHA), which will allow the needs of specific patients to be taken into account (S. 75(2G) MHA).
- 48 MHA
- 48 MHA, which authorises transfers to psychiatric hospital for certain classes of individuals, now includes people detained under:
- 91 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, i.e. children on remand; Immigration Act 1971;
- 62 of the Nationality, Immigration and Asylum Act 2002, i.e. those detained by the Secretary of State for the purpose of deciding whether to remove from the UK;
- 36 of the UK Borders Act 2007, i.e. offenders detained for deportation;
- Reg 32 of the Immigration (European Economic Area) Regulations 2016, i.e. those held by the Secretary of State for removal from the UK.