It is a new year and with it comes the beginnings of a new, reformed Mental Health Act.
Following an independent review of the Mental Health Act in 2018, Sir Simon Wesley identified that the current Mental Health Act was not in keeping with modern mental health services and needed significant reform.
The Mental Health Act 2025 received Royal Ascent on 18 December 2025. On February 18th, 2026, the first changes to the Mental Health Act will come into effect impacting forensic patients subject to hospital order with restrictions. The powers of tribunals in relation to conditional discharge conditions will alter, and they will now have the ability to discharge with conditions that amount to a deprivation of liberty for those that pose serious harm to others in the community which addresses the Supreme Court decision in Secretary of State for Justice v MM [2018] UKSC 60.
Other changes to the act coming into effect on 18th February include a change to the eligibility periods for applications and referrals to the tribunal for those restricted patients subject to a deprivation of liberty, the power of the secretary of state to remove a wider range of unsentenced prisoners to hospital for treatment including asylum seekers, and a 28 day time limit on to transfer prisoners in need of treatment to hospital.
The remainder of the proposed changes will be implemented over the next decade and are designed to bring the Mental Health Act up to date and to reform this in a number of areas to empower patients, increase access to advocacy, focus on patients dignity and respect, ensure detention has a therapeutic benefit and end inhumane practices.
The next raft of changes includes a change to the detention criteria which will include a test for serious harm, raising the bar for detention in hospital. Autism and learning disability alone will not be grounds for detention under section 3 alone without a co-occurring mental health condition. With these changes, whilst welcome, it will be interesting to see whether funding and commissioning of community mental health support and services are improved to counter act these changes to support those with mental health conditions, autism and learning difficulties better with changes to admission criteria.
The nearest relative will change to a ‘nominated person’ chosen by the patient as long as they have capacity to do so, which consider a patient’s wishes and feelings more and provides them with a larger sense of autonomy. The role of nominated person will largely be the same as was with nearest relative but will be extended in some areas to including the right to object to a community treatment order, consultation for renewal of section 3 and will be consulted about care and treatment and can request a review of this.
Place of safety will also be changed and will not include prisons or police stations.
Consultation on a new code of practice will hopefully begin in early 2026, which will shape the way the changes should be implemented, but the changes do seem to bring patient autonomy and choice into the spotlight, which is something to be welcomed. It remains to be seen how the changes will be shaped and guided by case law moving forward, but it is certainly an interesting time for mental health law and the changes it brings to those suffering with mental health conditions and hospitalisations. We can only hope that community services will be improved in line with these changes to support those who need them.
