The Mental Health Act 2025 has now passed into law and its reforms will alter many of the ways in which the law deals with the assessment, treatment and the rights of people experiencing mental illness in England and Wales.
The changes are scheduled to come into force gradually over the coming decade, starting with changes to the rules affecting mentally disordered offenders, or ‘restricted patients’, who pose a risk of serious harm to the public. These were introduced on 18 February 2026.
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New powers concerning restricted patients
New powers will enable the Secretary of State for Health and Social Care to impose conditions amounting to a deprivation of liberty when discharging restricted patients if it is believed to be necessary to protect the public from harm.
The change was introduced in response to a decision by the Supreme Court in MM v Secretary of State for Justice [2018] UKSC 60, which established that, under the 1983 Act, a patient with capacity could not legally be discharged under a deprivation of liberty order.
To account for this change, there have also been amendments made to the timetables related to applications to the Tribunal. For example, where a ‘conditionally discharged’ restricted patient is recalled to hospital, a one-month time limit has been imposed on the Secretary of State to refer them to the Tribunal.
Applying for an absolute discharge
Patients on a conditional discharge have always been able to apply for an absolute discharge before a Mental Health Tribunal once they have been on conditional discharge for a year. They also have the right to do so once every year thereafter.
However, under the updated Act patients can now be deprived of their liberty in the community, which was not the case before. Those patients can apply for a Mental Health Tribunal after the first six months and then once a year thereafter.
The power of the Secretary of State to place unsentenced detainees in hospital for medical treatment will also be extended to include those detained under the Immigration Act 1971, section 62 of the Nationality, Immigration and Asylum Act 2002, section 32 of the UK Borders Act 2007, and regulation 32 of the Immigration (European Economic Area) Regulations 2016.
Strengthening of ADRTs
Other reforms are unlikely to be introduced much before 2028, but they include an array of changes to how patient preferences are dealt with and to key definitions within the Act.
The rules around an Advance Decision to Refuse Treatment (ADRT), which enables individuals to legally refuse treatment under the Act when they may lack capacity will change. At present, ADRTs can be overruled if a responsible clinician believes that the treatment being refused is clinically necessary.
Under the new Act there is less scope for healthcare providers to override the wishes of a patient in these documents. In fact, they will be given the same weight and be as enforceable as they are elsewhere in the healthcare system.
Statutory duties
NHS England and Integrated Care Boards (ICB) will be under a statutory duty to provide information and support that enables people to create advance choice documents. Clinicians will have to take those documents into account when making treatment decisions and to provide a reason for acting outside of those preferences.
Where a person is detained under most sections a ‘nearest relative’ is appointed. Who this should be is determined by referring to a list in section 26 of the Act. However, this approach has long been criticised for restricting patients’ autonomy by not allowing them to select who the nearest relative is. As such, the updated Act calls for the appointment of a ‘nominated person’ instead, giving the patient agency in that decision and allowing them to decide who will represent their best interests when they lack capacity.
Individuals with learning difficulties
The Mental Health Act 2025 includes several changes related to individuals with learning difficulties, including autism. First, the Act includes updated definitions for ‘autism’, ‘learning disability’, and ‘psychiatric disorder’, as well as ‘appropriate medical treatment’.
Second, the ICBs and local authorities will have to increase the community provision for people with autism and learning difficulties. This is in a bid to meet their needs without having to detain them. There is already a requirement for ICBs to maintain a dynamic risk register for this group but under the new Act it will be a statutory duty.
Further, it will only be possible to detain people with autism or a learning difficulty in hospital if they have been charged with or convicted of a criminal offence, or if they have a dual diagnosis that is co-occurring with their mental illness. Moreover, the updated Mental Health Act removes entirely the use of police stations and prisons as places of safety. This cements the explicit expectation that anywhere deemed to be place of safety should be a healthcare setting.
Human Rights Act
Finally, the Mental Health Act 2025 includes an amendment extending the legal duties of the Human Rights Act to private care providers. This means they must respect, protect and fulfil the fundamental rights of service users when they are providing services that have been arranged or paid for by public authorities. The amendment includes delivering aftercare under the MHA, community care, or inpatient care, if it is being paid for by a public body.
According to section 6 of the Human Rights Act, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. This principle is only bypassed if, as with the result of primary legislation, the authority could not have acted differently or if the authority was acting to enforce those provisions.
Be prepared with Bond Solon
All changes to the Mental Health Act will have an impact on the way that health and social care professionals provide services going forward.
Providers of care will need to consider ongoing policies and procedures, staff training, monitoring and review of processes, complaints procedures and audits in the context of the gradual introduction of the changes. Providers have also been warned to prepare for claims under the Human Rights Act because of some of the changes being introduced.
Bond Solon is premier provider of specialist training of health and social care professionals. We have a range of Mental Health Act courses from our MCA and MHA Interface course to our Record Keeping for Mental Health Tribunals course. Please view our website for our full training offering.