The Mental Health Act 2025 (the Act) changes to conditional discharge will be implemented on 18 February 2026 and service providers will need to be ready for implementation.
We outline the key changes, and our thoughts on their potential impact, in more detail below.
Summary of key changes
The Act amends relevant provisions of the current MHA 1983 so that either the Secretary of State (SoS) or the Tribunal can effect a conditional discharge with conditions that amount to a deprivation of liberty. As above, these changes will take effect from 18 February 2026.
From that date, the SoS will be able to conditionally discharge a patient with conditions amounting to a deprivation of liberty, where the SoS is satisfied that 'such conditions are necessary for the protection of the public from serious harm' (s.42(2)(A)). The SoS will also be able to amend existing conditions on that basis (s.73 (4)(b),(5) & (5)B).
The Tribunal can make such an order where the Tribunal 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 Tribunal will also have the power to vary conditions and impose conditions that amount to a deprivation of liberty on the same basis (s.71(4A) & (4B)).
In any event, the patient will be entitled to Tribunal applications and referrals (s.75).
The provisions will also be retrospective, applying to those who have already been detained/conditionally discharged when the provisions come into force.
Our thoughts
Amending the MHA to provide a clear legal framework to enable conditional discharge with conditions that create a deprivation has to be the appropriate solution, rather than relying on s.17 leave or the MCA.
Since the amendments apply regardless of capacity it will be interesting to see to what degree relevant conditions are applied to those who lack capacity and how the 'interface' develops.
Of course conditions on the conditional discharge are not enforceable, however, in practice, where the patient is in breach of the conditions they may well be recalled.
What next?
Organisations will need to be ready for these changes and whilst the application will only be relevant for those providing relevant forensic and community services, it will be important that organisations are clear as to the scope and impact of these changes as practical action will be needed quite quickly.
We will continue to keep you updated on developments and timescales for implementation of the Act, and in the meantime can assist by advising on drafting and implementing policies and processes that are compliant with legislative change and will withstand regulatory scrutiny. We can also provide training on all aspects of the Mental Health Act and the impact of the proposed changes to ensure that staff understand the scale and implications of what is being proposed.
