18/02/2026
On 18 February 2026, two months after the Mental Health Act 2025 received Royal Assent, the first changes will take effect. Whilst these won’t have wide application, they will have relevance to those who specialise in forensic and similar specialist services.
Remember, the Mental Health Act 1983 remains in force, so these are changes to the existing primary legislation.
The first changes include:
Transfer of mentally unwell people from immigration centres and youth detention accommodation: More people in immigration and detention centres will be allowed to transfer to hospital when acutely mentally unwell by reference to an updated list of types of centre in which people are held in section 48 MHA 1983. The same section is amended to also allow people in youth detention accommodation to be transferred to hospital for mental health treatment when needed.
Depriving the liberty of conditionally discharged patients: High-risk conditionally discharged patients, including those who retain mental capacity can now be sent to community placements where their liberty will be deprived. This reverses the previous position following SSJ v MM [2018] UKSC 60 where the Supreme Court ruled that neither the Secretary of State nor a Tribunal could impose conditions amounting to deprivation of liberty by way of a condition of a conditional discharge.
From 18 February 2026, such conditions can be imposed by the Secretary of State if "necessary for the protection of the public from serious harm".
The Mental Health Tribunal can impose them if it believes:
· they are necessary for the protection of another person from serious harm, and
· that such discharge "would be no less beneficial” to the patient's mental health than for them to remain in hospital.
The changes affect sections 42 (powers of Secretary of State) and 73 (Powers of the Tribunal) of the 1983 Act. They mean it is not necessary to seek work-arounds under section 17(3) to control the movement of forensic patients who have capacity and are therefore not amenable to DoLS under the Mental Capacity Act 2005.
Conditionally discharged patients shall have automatic referrals to have their deprivation of liberty considered by the Mental Health Tribunal.
As of the 18th February 2026, the Government has updated its Supervised Discharge Guidance to reflect these new powers.
Why these changes now?
The Government has recognised the need to ensure that there are effective procedures and legal frameworks to treat patients in these specific situations whilst affording equivalent safeguards to others who are liable to be detained.
What next?
The vast majority of the remaining changes will be subject to ongoing impact assessments and, crucially, consultation on a draft Code of Practice which will give provide statutory guidance on how they should be applied by professionals and services. The draft Code is expected in the coming weeks or months and is likely to take over a year to be finalised.
How can we help?
To speak to one of our experts, or to learn more about the upcoming changes outlined in the Mental Health Act 2025, click here.
