Mental Health Act 2025 new provisions come into effect: Legal comment

The first set of Mental Health Act 2025 (MHA 2025) provisions come into effect from Wednesday, 18 February 2026. 

These introduce changes to the Mental Health Act 1983 (MHA1983), primarily in relation to conditionally discharged restricted patients.

The provisions amend sections 42, 48, 71, 73 and 75 of the MHA 1983.

Rebecca Fitzpatrick, Partner and Head of Browne Jacobson’s Advisory and Inquest team, said: “The provisions of the Mental Health Act 2025 coming into force on 18 February 2026 enhance safeguards for patients and the public in relation to conditionally discharged restricted patients who have come into the mental health system via the criminal courts. 

“One key change is the creation of a lawful framework that allows the First Tier Tribunal (Mental Health), the Mental Health Review Tribunal for Wales or the Secretary of State for Justice to impose conditions on a conditionally discharged restricted patient that amounts to a deprivation of their liberty, subject to specific legal criteria being met.

“The conditions amounting to a deprivation of the patient’s liberty in the community must be necessary to protect the public from serious harm and be no less beneficial to the patient’s mental health than for them to remain in hospital. This provision is welcome as it addresses the gap in the law identified in the case of Secretary of State for Justice v MM [2018] UKSC 60. The new provisions should reduce the need for the use of long-term leave under s.17(3) MHA 1983 and in some cases applications to the Court of Protection that are presently required to ‘plug the gap’ in the current legal framework.

“The new provisions also strengthen patients' rights through mandatory tribunal references for conditionally discharged patients, subject to deprivation of liberty conditions and new tribunal eligibility periods for conditionally discharged patients. 

“These changes will have a substantial impact on forensic mental health and community services, particularly Mental Health Act administration teams and mental health professionals preparing tribunal reports. Administration teams will need to be aware of the new procedural timescales to ensure patients are properly informed of their rights, to check automatic referrals have been made within statutory deadlines and to request tribunal reports within the relevant timescales. 

“Mental health professionals preparing tribunal reports will need to address the new threshold test if they consider it is necessary for the tribunal to impose conditions that amount to a deprivation of liberty on the conditional discharge of a patient. 

“This means considering whether the conditions are necessary to protect the public from serious harm (or whether alternatively the patient’s risks could be managed with lesser restrictions) and whether discharge with deprivation of liberty conditions would be no less beneficial to the patient's mental health than remaining in hospital.”