The year ahead in health and care: Legal trends shaping 2026

The Mental Health Act 2025

Passed just before Christmas, it will bring wholesale changes to the legal framework for detention and treatment of mental disorders. The amendments made to the original 1983 legislation are more fundamental and far reaching than the last set of amendments in 2007. 

The changes are intended to address concerns about poor patient experience, racial disparities in detention and in use of Community Treatment Orders in particular, and the inappropriate detention of autistic people and people with a learning disability. 

The key changes include: 

• introduction of guiding principles that will be front and centre in the updated Code of Practice (though many wanted them to be included in the legislation itself, as with the principles of the Mental Capacity Act): 
• choice and autonomy 
  • least restriction - therapeutic benefit; and 
  • the person as an individual 
• exclusion of diagnosis of autism or learning disability from the criteria for detention under MHA s3 unless there is another mental disorder or illness and adding a focus on avoiding “serious harm” to the criteria for detention under s2 and s3.  
• shortening the initial detention period under MHA s3 to a period of 3 months, renewable for 3 months, rather than the existing initial 6 months.  Alongside other amendments, this significantly increases the access to the Tribunal to challenge detention (which can be done in each period of detention), and is likely to mean many more Tribunal cases, even if the overall intention of the reforms is to reduce the number of people detained.  
• changes which reflect greater patient choice / consultation
  • the existing Nearest Relative role, currently identified by a statutory checklist, will be replaced by a Nominated Person, who can be chosen by the patient, failing which by the AMHP.  
  • care and treatment plans to have a statutory basis, and to require consultation with the patient and Nominated Person.  
  • further duties to consult others before the decisions about transfer or discharge, including use of a CTO.
  • Advance Choice Documents to empower patients to set out their wishes. 

supervised discharge to allow for conditional discharge for patients with conditions that amount to a deprivation of their liberty, breaking a logjam and barrier to progressing discharge caused by a Supreme Court judgment that had held that to be unlawful under the current system.

Read more: Mental Health Act 2025.

Deprivation of Liberty (DoL)

This will also be a focus for reform in 2026. We expect a judgment from the Supreme Court, which heard a case in October 2025 that might rewrite the definition of a DoL. The argument moves the focus from the objective restrictions that are in place and onto the subjective element – is there “valid consent”, which would mean that there is not a DoL. 

The Attorney General of Northern Ireland (AGNI) has asked the Court to confirm that she might lawfully say that someone with restrictions that are put in place for their care, in their best interests, that amount to continuous supervision and control and are not free to leave, is nonetheless not deprived of their liberty if they have a positive attitude to those restrictions even though they lack capacity to make their own decisions about care and residence. 

The Department of Health and Social Care supports the AGNI’s argument but also took the opportunity to say that the Supreme Court should revisit and tighten up the definition of the objective element of a DoL, arguing that the landmark decision in Cheshire West in 2014 went too far in widening this. 

We expect the Supreme Court decision to be handed down sometime in 2026, and it is likely to have huge implications for the way this issue is dealt with across health and social care.

Read more: Deprivation of Liberty – a new legal framework?

Liberty Protection Safeguards (LPS)

At the same time as the Supreme Court hearing, the government announced that there will be (another) consultation on the implementation of the Liberty Protection Safeguards, legislation passed in 2019 but not yet brought into effect. LPS would replace the current DoLS system, intended to streamline this, and to avoid the applications that must be made to court at the moment for situations where DoLS does not apply (e.g. beyond care homes and hospitals or for people under 18). 

Since the consultation can only sensibly be done after the AGNI Supreme Court judgment is handed down and digested, we suspect that any consultation on LPS is more likely to be in early 2027. From there, the realistic timescale through to implementation seems likely to take until around 2029 at best, raising the possibility of the next general election interfering with this, so there will remain uncertainty and the priority is to use the existing legal frameworks (the Mental Capacity Act, DoLS and court applications) properly now, reviewing training and policies accordingly. 

Read more: Announcement of Consultation on Liberty Protection Safeguards

Assisted dying

Another potential reform planned to come into effect in around 2029 is Assisted Dying and we will know in the next few months if this legislation will make it through the Lords before the end of this Parliament, likely to be in May 2026. If it has not passed by then, the legislation will fall, and would have to start afresh, with the controversy that a number of Lords are seen to be holding this up with record breaking numbers of amendments proposed, against the will of the Commons.

Subject to amendments in the Lords, the Bill will allow an adult (over the age of 18), who is in the last 6 months of a terminal illness and has mental capacity to make the decision, to be given medication by a doctor that would allow them to end their own life, subject to stringent safeguards.

Implementation, supported by a Code of Practice, would be likely to take until 2029, so it might depend on the outcome of a further general election (due by 15 August 2029). 

Read more below:

• Assisted dying: what next, who pays, and what cost? 
• Terminally Ill Adults (End of Life) Bill

Hillsborough Law

Though it is currently on hold to thrash out the implications for the security services, the Hillsborough Law reforms are likely to be coming into force sooner than that, having been a key plank of the Labour government policy. The legislation is wide ranging, including new legal duties of candour and offences of misconduct in public office. The key issue for health and care though is likely to be the proposals for “parity of arms” for public funding for families at inquest. If a public body (including any NHS organisation, or a private provider of NHS commissioned care) is an Interested Person at an inquest, then the family will automatically get non-means tested legal aid to secure their own representation at the inquest. 

The impact assessment anticipates that this will cost around £183million, (based on around 11,400 cases pa, and around £16,000 of funding per family per inquest). Despite other provisions pushing public bodies away from being “lawyered up” at inquests unless this is “necessary and proportionate”, it seems inevitable that health and care providers will be more likely to want legal representation – their own “parity of arms” – where the family is represented in this way. 

With inquests often the largest legal spend (both for external advice and demands on internal resource), this could have big cost implications for health and care, especially in the current climate of costs pressures. 

Read more below:

• “Hillsborough Law” – what NHS bodies need to know
• Inquests: What’s on the horizon for 2026?

Other things to look out for in 2026

On that – we anticipate that the changes in commissioning landscape in 2026 will need care to make sure they are compliant with public law, and support to avoid judicial review. 

We also know that there will be legislation coming to effect the abolition of NHS England, unpicking the Health and Social Care Act 2012, which established it, as well as dealing with some wider changes to the NHS landscape.

Mergers, clusters, or other shared governance arrangements will remain a focus as a way, it is thought, of sharing running costs of organisations, especially where huge changes in the workforce don’t seem to be matched, in the end, by real changes in the scope of their roles or responsibilities.

Employment law

Alongside this, employment law issues…. 

In the immediate/ short terms most organisations will be concentrating on ploughing through (or finishing off) the latest round of VR/ organisational change in order to reconfigure services, save costs and/or or meet their CR targets.

However, there are also huge changes coming now that the Employment Rights Act has royal assent. These include ‘Day 1’ paternity leave and revised unpaid parental leave rights and making raising concerns about sexual harassment a protected disclosure – from 6 April 2026. From October 2026, trade unions will have strengthened rights of access to workplaces – and the rules around harassment will be bolstered by the reintroduction of liability for harassment by third parties and tightening up of the ‘reasonable steps’ defence. Finally, and biggest of all, is to come from January 2027 with the reduction in qualifying service to claim unfair dismissal from 2 years to six months and the removal of the cap on the compensatory award in all unfair dismissal claims. This is a seismic change and once the zero hours contracts rules come in later in 2027 (date TBC) the whole landscape around temporary staffing in the NHS may have shifted irreversibly. 

Time to start planning for those changes now, before it’s too late.

Read more here: Redundancy collective consultation