The Mental Health Act 2025: Provisions coming into force in February 2026

The Mental Health Act (MHA) 2025 received Royal Assent on 18 December 2025. On that date, selected provisions came into force, including the commencement clause and the authority for the Secretary of State and Welsh Ministers to enact consequential regulations. 

Most of the 2025 Act will come into force on later dates, which will be set out in the forthcoming regulations. However, there are a few sections that will commence on 18 February 2026 in both England and Wales. These are as follows:

• Sections 30(2)
• Section 32
• Section 35
• Section 36(1) and (3)(b)
• Section 38
• Section 39 

As we previously explained, the 2025 Act is not replacing the MHA 1983 – rather, it is making amendments to the existing Act. The above sections will implement changes to sections 42, 48, 71, 73, and 75 of the MHA 1983.

We have set out below a summary of the sections coming into force on 18 February, and what effect they will have on the 1983 Act. 

Section 35 MHA 2025: Changes to conditional discharge permitting a deprivation of liberty 

Section 35 of the MHA 2025 makes changes to both section 42 (powers of the Secretary of State in respect of patients subject to restriction orders) and section 73 (power of the Tribunal to discharge restricted patients) of the MHA 1983. 

The effect of section 35 MHA 2025 is to create a power that allows the Tribunal or the Secretary of State for Justice to impose conditions that amount to a deprivation of liberty (DOL) on a patient as part of a conditional discharge, provided those conditions are necessary to protect the public from serious harm.

The Tribunal can make such an order 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
• 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.

The reason for this change is that, at present, restricted patients with capacity cannot be discharged with conditions that amount to a DOL under the existing provisions of the 1983 Act – see the case of Secretary of State for Justice v MM  [2018] UKSC 60. Such patients are currently being managed using the technical recall and long-term escorted section 17 leave process set out in the Mental Health Casework Section guidance entitled ‘Discharge conditions that amount to a deprivation of liberty’. 

Section 35 MHA 2025 therefore allows for the lawful imposition of conditions on discharge, which amount to a DOL, in the small number of high-risk cases where the patient’s mental disorder persists but they are no longer benefitting from hospital detention, and the Tribunal or Secretary of State for Justice is satisfied the conditions are necessary for the protection of others.

In addition, the Tribunal will be able to vary conditions to put in place new conditions that amount to a deprivation of liberty on the same basis (s.71(4A) and (4B)) (see below).

Section 30(2) MHA 2025: Applications and references to the Tribunal for conditionally discharged patients

Section 30(2) of the MHA 2025 implements changes to section 75 of the MHA 1983. Section 75 relates to applications and references to a Tribunal for conditionally discharged restricted patients.

Section 30(2)(b) amends section 75 of the 1983 Act to clarify that conditionally discharged patients who are not subject to conditions amounting to a DOL and who have not been recalled to hospital have the right to make an application to the Tribunal for a 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 DOL conditions, and thereafter every two years.

Section 30(2)(c) introduces a new subsection (2A), to provide restricted patients who are conditionally discharged and subject to DOL conditions 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 DOL conditions and thereafter every two years.

Section 32 MHA 2025: References relating to restricted patients subject to DOL conditions

Section 32 of the MHA 2025 concerns references relating to restricted patients subject to deprivation of liberty conditions. It makes changes to section 71 and section 75 of the MHA 1983.

Section 32 is long and complex, and so we have not delved into the full detail here. However, key changes introduced by the section include:

• New sections 71(4A) and (4B), which extend the Tribunal powers when reviewing the detention of a conditionally discharged patient following a discretionary referral under section 71(1), to allow the tribunal the power to vary or impose any conditions to which the patient is subject, including imposing DOL conditions where the relevant threshold is met under subsections (4B)(a) and (b). 
• A new section 75(2C), extending the automatic referrals by the Secretary of State to conditionally discharged patients subject to conditions amounting to a DOL (“supervised discharged patients”). The effect is to require the Secretary of State to refer supervised discharged patients 12 months from the date that they became subject to DOL conditions and thereafter each subsequent period of two years, where the Tribunal has not considered their case.
• A new section 75(2E), providing that the Secretary of State must refer to the Tribunal any restricted patient who has been conditionally discharged, is subject to conditions amounting to a DOL and 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 no Tribunal application or reference pending.

Section 36(1) and (3)(b): Transfers of immigration detainees

Sections 36(1) and (3)(b) of the MHA 2025 make minor changes to section 48 of the MHA 1983, which relates to prisoners and other detainees who become acutely mentally unwell in prison or another place of detention and who are transferred to hospital for treatment.

Section 48(2) of the 1983 Act will be amended to include an updated list of immigration legislation by which an individual may be detained, ensuring these detainees can also be made subject to a section 48 transfer where they become acutely unwell.

Section 38: Transfer of prisoners to include transfer from youth detention accommodation

Section 38 of the MHA 2025 makes further amendments to section 48 of the MHA 1983. Under section 48, 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 magistrates’ court, and civil and immigration detainees, to be transferred to hospital if they are suffering from a mental disorder requiring inpatient care. Where the Crown Court remands children to youth detention accommodation, there is currently no provision for the Secretary of State to make a transfer direction in respect of them under section 48. 

Since 2012, remand centres have not been utilised in the criminal justice system and children arrested for or formally charged with a crime have instead been remanded to youth detention accommodation. Section 38 removes the defunct references and ensures all those remanded to youth detention accommodation, including by the Crown Court, can be transferred under section 48 if the criteria is met.

Summary

The provisions of the MHA 2025 coming into force on 18 February 2026 primarily focus on enhancing safeguards for conditionally discharged restricted patients, particularly those subject to/requiring conditions amounting to a DOL. These changes are welcome as they create a lawful framework for imposing DOL conditions where necessary for public protection and of greater benefit to the patient than remaining in hospital. 

Further provisions of the 2025 Act will be brought into force on dates to be specified in forthcoming regulations, and we will keep you updated.

If you have any questions about the 2025 Act or require guidance or training on any of its provisions, please do get in touch.