Changes from the Mental Health Act 2025 coming in February 2026
The Mental Health Act 2025 received Royal Assent on 18 December 2025, amending the 1983 Act. A few administrative provisions are already in force and the first substantive changes will come in on 18 February 2026. This article will focus on those imminent changes.
- Conditional Discharge for restricted patients
Under the new provisions, it will be possible to impose conditions amounting to a deprivation of liberty (DoL) when discharging restricted patients.
Do note that these changes only cover restricted patients and conditional discharge by the Secretary of State or the tribunal. Community Treatment Orders and Guardianship remain unaffected in terms of DoL in the community.
The Secretary of State will be able to effect a conditional discharge amounting to a DoL for a restricted patient if they are satisfied that those conditions are necessary for the protection of the public from serious harm.
For the Tribunal to effect such a discharge it must be satisfied that (1) conditions amounting to a DoL would be necessary for the protection of another person from serious harm while discharged and (2) that for the patient to be discharged subject to those conditions it would be no less beneficial for their mental health than for them to be recalled to hospital.
Application and references to the Tribunal will be updated accordingly and as follows:
| Circumstances | New time period to access tribunal as of 18 February 2026 |
| A restricted patient who has been conditionally discharged and is not subject to any conditions which amount to a DoL and has not been recalled to hospital | Between 12 months and 2 years, beginning when previous conditions which amounted to a DOL ceased or when the patient was conditionally discharged.
|
| A restricted patient who has been conditionally discharged, is subject to conditions amounting to a DoL and has been recalled to hospital
|
Between 6 months and 2 years, beginning on the date the patient most recently became subject to conditions amounting to a DoL (whether or not that was when they were conditionally discharged) and any subsequent period of 2 years |
| A restricted patient who has been conditionally discharged, is subject to conditions amounting to a DOL and has not been recalled to hospital
|
The Secretary of State must refer to the tribunal after 12 months from the date when the patient most recently became subject to conditions amounting to a DoL and each subsequent period of two years. |
| A restricted patient who has been conditionally discharged and has not been recalled to hospital whose case has not been considered by the appropriate tribunal in 4 years and there is no pending application/reference | The Secretary of State must refer to the appropriate tribunal |
- Extending the remit of s48 in relation to the removal to hospital of other patients
The power of the Secretary of State to remove unsentenced prisoners to hospital for medical treatment will be extended to include:
- Persons detained under-
(i) the Immigration Act 1971,
(ii) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State),
(iii) section 36 of the UK Borders Act 2007 (detention of offenders for deportation), or
(iv) 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)).
To read about the Mental Health Act 2025 at a glance, see our article (kept up to date as changes happen) here.
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Our experienced team advise and act for a range of health, social care and charitable organisations on mental health law. Do contact us if you have any queries arising out of this update, or on mental health law more generally.