The New Mental Health Act 2025 – Conditional discharge of restricted patients with conditions that deprive patients of their liberty

The new Mental Health Act amends the existing Mental Health Act, rather than being a complete revision of the existing legislation. The introduction of conditional discharge of restricted patients with condition(s) that amount to a deprivation of the patient’s liberty is a significant change to the existing legislation and may give rise to some practical complexities given the high risk nature of many of the patients involved. The amendment will take effect on 18 February 2026.

Section 35 of the new Act makes amendments to section 42 of the MHA, permitting discharge subject to conditions amounting to a deprivation of liberty in respect of patients subject to a restriction order. This amendment has been considered necessary since the Supreme Court held in Secretary of State for Justice v MM [2018] UKSC 60 that it was unlawful for the Secretary of State or the First Tier Tribunal to impose conditions on a patient, who was capable of consenting and did consent to those conditions, that amounted to a deprivation of liberty under Article 5 of the European Convention on Human Rights. 

Where restricted patients lacked capacity, it has been possible for a Tribunal to grant a conditional discharge without conditions which would deprive the patient of their liberty as the deprivation can be authorised by the Court of Protection or DOLS authorisation.

Conditions amounting to a Deprivation of Liberty

In the case of MM, in which the Supreme Court made the judgment referred to above, the restricted patient was considered by those responsible for his care to be suitable for management in the community with a level of restriction, supervision and monitoring, including the use of an escort whenever he went out. This would have amounted to a deprivation of the patient’s liberty in accordance with the legal definition, as previously decided by the Supreme Court, namely the patient would have been subject to “continuous control and supervision and was not free to leave his accommodation” (P v Cheshire West & Chester Council [2014] UKSC 19).

The new legislative provisions on Conditional Discharge

The new changes enable the Secretary of State to discharge a restricted patient with conditions amounting to a deprivation of liberty where the Secretary of State is satisfied that “such conditions are necessary for the protection of the public from serious harm” (S.42(2)(A) Mental Health Act). The Secretary of State will also be able to amend any existing conditions on that basis (S.73(4) and (5) ibid).

The Tribunal can make an order for conditional discharge where it is satisfied that:

• the conditions amounting to a deprivation of liberty would be necessary for the protection of another person from serious harm if the patient were discharged from hospital; and
• 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.

These provisions do not distinguish between patients who have capacity to consent to the conditions and those who lack such capacity (see comments below). They will be retrospective, applying to those who have already been detained or conditionally discharged when the provisions come into force.

Guidance published by the Mental Health Review Tribunal

The Tribunal has recently published guidance regarding the new conditional discharge provisions (The Mental Health Act 2025 – An introduction to the new conditional discharge provisions, 10 February 2026). This states that the Tribunal will refer to the new type of conditional discharge as “conditional discharge with a deprivation of liberty,” abbreviated to “CD(Dep).”

The guidance notes that the nature of most deprivations of liberty will be a condition that the patient must not leave his accommodation unaccompanied at any time (or will at least not be free to decide when to leave), but there will be no power to restrain a patient from leaving his accommodation. Any relaxation of the condition(s) must be made by the Tribunal or Secretary of State, not by the clinical team.

The guidance does, however, state that “some patients will be allowed brief periods in the community on their own, these periods will have to be carefully planned and managed and the patient will not be free to decide when they can leave the accommodation.” Should the conditions allow for a patient subject to a CD(Dep) to have any time in the community on their own, it will be essential for the provider of the accommodation and others involved in the patient’s care to ensure that detailed risk assessments have been undertaken and recorded before the patient leaves the accommodation.

The conditions to which such a patient will be required to comply will need to be incorporated into the conditions of the patient’s s117 after-care arrangements.

The implications of the CD(Dep) not providing any power to restrain a patient who chooses to leave his accommodation unaccompanied could result in some serious practical problems that may need legal input. Questions are likely to arise as to liability for any harm caused by the patient after the patient has left the accommodation in contravention of the conditions of discharge.

Whilst the new provisions apply to both patients who have capacity and lack capacity, the guidance states that it is good practice only to impose conditions if the patient agrees to them as this should result in a greater chance of compliance. However, it is difficult to understand how it will be possible to obtain a meaningful agreement from a patient whose mental state makes them incapable of understanding the conditions and/or why they are being imposed. The use of MCA Advocates will be important where there is doubt about the capacity of a patient to understand this information, with consideration given to the way the relevant details are communicated to the patient. Section 1(3) of the Mental Capacity Act 2005 (MCA) provides that a person is not to be treated as unable to make a decision unless all practical steps have been taken without success. Section 3 MCA requires consideration of communication in a way that is appropriate to the person’s circumstances, such as using simple language and communication aids.

The guidance contemplates that “most [patients subject to a CD(Dep)] will have LD or some other lifelong neurodevelopmental condition;” presumably the Tribunal is referring to the current position. Under the new definition of “mental disorder,” within provisions in the new Act that have yet to come into force, patients with a diagnosis of LD and/or autism alone will not qualify for statutory detention.

The guidance indicates that in very many cases, testing escorted leave will be required to demonstrate likely compliance with the conditions. Clinicians will need to consider when a patient who it is proposed be made subject to a CD(Dep) should start a gradual move to escorted leave if that is not yet in place in the hospital.

Application by the patient to the Tribunal

Given the nature of the CD(Dep), patients who are subject to such a discharge will be entitled to exercise their rights to access the Tribunal on a more regular basis, including by way of reference, so that the Tribunal can review the conditions amounting to a deprivation of their liberty.

Where a patient has been conditionally discharged with a condition which deprives them of their liberty and has not been recalled they may apply to the Tribunal in the period between the expiration of 6 months and the expiration of 12 months beginning with the date on which they most recently became subject to such conditions (whether or not that was the date on which the patient was conditionally discharged) and in any subsequent 2 year period. This is likely to result in an increase in patients applying to the Tribunal.