What should we look out for with the new Mental Health Act 2025?
In my work supporting families and individuals dealing with care and capacity-related issues, I’ve seen how mental health and capacity law overlap and affect people’s lives.
Changes to mental health legislation have been awaited by practitioners in the area, in hope it will lead to better care for people with mental health conditions.
Those working in this area will be keeping a close eye on how these changes play out in practice.
In the meantime, here are some important changes and what they mean.
How has the act changed?
The new Mental Health Act 2025 (“MHA 2025”) received Royal Assent on 18 December, 2025, and updates the Mental Health Act 1983.
A number of sections of the MHA 2025 concerning a conditional discharge with deprivation of liberty (DoL) conditions and related provisions recently came into force on 18 February, 2026.
How will this affect patients with autism?
The MHA 2025 creates a distinction between the diagnosis of autism, a learning disability and other psychiatric disorders.
Previously, a person could be admitted to hospital for treatment under section 3(2)(a) of the Mental Health Act 1983, if they were suffering from a ‘mental disorder’ of a nature or degree which made hospital treatment appropriate.
The MHA 2025 amends the wording ‘mental disorder’ to ‘psychiatric disorder’ and clarifies: “…psychiatric disorder” means mental disorder other than autism or learning disability”. This still must be of a nature or degree that makes hospital treatment appropriate. In practice, this change in wording means that a person may not be detained for ongoing treatment under section 3 solely on the basis of a diagnosis of autism or a learning disability.
This change in wording doesn't preclude a person with a diagnosis of autism or a learning disability from being admitted to hospital under section 2 of the Mental Health Act 1983 for a period of assessment or receiving hospital treatment under section 3 where they have concurrent mental health conditions. This provides clear direction for patients to only be deprived of their liberty using the MHA 2025 where they have a psychiatric disorder requiring inpatient treatment rather than as a result of a diagnosis of autism or a learning disability.
What are the changes for private providers?
The MHA 2025 extends the legal duties of the Human Rights Act 1998 to include private care providers where their services have been paid for by public authorities, including in relation to aftercare entitlement pursuant to section 117 of the Mental Health Act 1983.
Section 51 of the MHA 2025 inserts: “(1) A registered care provider is to be regarded for the purposes of section 6(3)(b) of the Human Rights Act 1998 as exercising a function of a public nature in providing any of the services mentioned in subsection (2)...”
The implications are that:
- Patients receiving mental health care in private hospitals (paid for by the NHS) have the same human rights protections as they would in an NHS hospital.
- Private hospitals providing NHS-funded metal health services can now be challenged via a public law challenge (i.e. judicial review). This means that someone can legally challenge a hospital if it makes an unlawful decision whilst carrying out a public function.
This wouldn't apply to patients who are paying privately for their mental health care in a private hospital.
What are the changes to ‘places of safety’ for vulnerable adults?
The MHA 2025 amends the definition of ‘place of safety’ within the Mental Health Act 1983.
Historically, in emergency situations, under the Mental Health Act 1983 patients could be taken to a place of safety until they could receive an assessment for hospital treatment. This previously could be hospital settings, but it also included prison cells and police stations if required.
However, section 48 of the MHA 2025 amends section 55 of the Mental Health Act 1983 to remove police stations and prisons as places of safety.
This amendment could reduce some of the strain placed on police services in meeting the immediate needs of mental health patients, which would enable these resources to be re-directed to policing functions rather than healthcare functions.
However, patients are often at a significant risk to themselves during the time that they're waiting for a mental health assessment. Consequently, public authorities should consider that if new NHS facilities aren't created alongside this change, highly vulnerable adults and children may face delays or situations where no place of safety is available.
Introduction of the ‘nominated person’ role
Section 3 of Schedule A1 of the MHA 2025 outlines the replacement of the Nearest Relative role under the Mental Health Act 1983 with a new ‘nominated person’ role.
Under the MHA 2025, a person is eligible to act in this role if they meet the age requirement and are not disqualified by court order. Unlike the previous provision under section 26 of the Mental Health Act 1983, the MHA 2025 doesn't prescribe a list of individuals who are eligible to act in this role.
Where a patient is 16 years of age or over, the nominated person must also be 16 years of age or over. Where a patient is under 16 years of age, the nominated person must be at least 18.
This therefore broadens the pool of individuals who may be appointed to act in this role for patients detained in hospital, giving patients greater autonomy in choosing who will act in this role, thereby supporting their Article 8 right to respect for private and family life.
Introduction of ‘Advance Choice’ documents
Section 44 (1) of the MHA 2025 amends the Mental Health Act 1983 to create a legal duty for NHS England and Integrated Care Boards (“ICB”) to help patients as it considers appropriate to make ‘Advance Choice’ documents.
These are defined as: “a written statement made by a qualifying person specifying their decisions, wishes or feelings about any relevant matter that may arise….” They allow people to record their preferences about future mental health treatment or hospital admission, for use if they later become unwell and lack capacity to express those wishes.
NHS England or an ICB must have regard to the benefits to a person of making an advance choice document within 12 months of their discharge from a hospital or a registered establishment where they were receiving medical treatment for, or assessment in relation to, mental disorder (section 44(3)).
This is a proactive step towards strengthening patient autonomy and ensuring that patients wishes and feelings are ascertained should they require future medical treatment under the MHA 2025.
What changes affect patients being discharged from hospital?
The new amendments under section 34 (2A) of the MHA 2025 provide that that before making an order for discharge where someone is detained in hospital, the responsible clinician must consult a person:
“(a) who has been professionally concerned with the patient’s medical treatment, and
(b) who belongs to a profession other than that to which the responsible clinician belongs.”
This ensures that discharge decisions cannot be made in isolation. For example, where someone is subject to a guardianship, before an order for discharge can be made, multi-agency steps must be considered, including liaison between the treating clinical team, social services and the patient’s nominated person.
Further, in the case of community mental health patients, prior to the person’s discharge from hospital, the responsible clinician must, if they are not the community clinician, consult the community clinician.
These changes should provide much needed improvements to cohesion between the hospital and community care mental health services. By requiring professionals from different disciplines to contribute to discharge decisions, this strengthens oversight from clinicians involved in a patient’s care.
What are the recent changes made to conditional discharges?
More recent changes to the MHA 2025 came into effect on 18 February 2026 and include amendments to provisions related to ‘conditional discharge’, which is where a patient’s discharge from hospital is subject to certain conditions to remain in the community. The amendments now permit conditions that may authorise a deprivation of a patient’s liberty.
Prior to this, it was established in case law that the Mental Health Act 1983 didn't allow for capacitious patients to be discharged under conditions amounting to a deprivation of their liberty.
For example, section 35 of the MHA 2025 amends section 42 of the Mental Health Act 1983 to insert: “(2A) Conditions amounting to a deprivation of a patient’s liberty may be imposed under subsection (2) if the Secretary of State is satisfied that those conditions are necessary for the protection of the public from serious harm.”
Section 35 also amends section 73 of the Mental Health Act 1983 to allow mental health tribunals to impose conditions amounting to a deprivation of a patient’s liberty. This has a significant impact on the human rights of patients, and its use should be kept under careful review.
The further amendments are lengthy, but more detailed guidance on the power to conditionally discharge patients and deprive them of their liberty has been published by the government.
What happens next?
The draft Code of Practice for the new act will provide much needed guidance on how these provisions should be implemented in practice. This should be released over the coming months, and further guidance can be provided then.
In the meantime, families or individuals with care or capacity-related issues can find out more information at our dedicated mental capacity section.
