The Mental Health Act 2025 Conditional discharge + deprivation of liberty
- Feb 17
- 2 min read
Updated: Feb 18
On 18th February a new power comes into effect. It is contained in the Mental Health Act 2025 which amends parts of the Mental Health Act 1983. The new power applies to a specific group of patients who are detained in hospital under section 37/41 ( a court order with restrictions to protect the public from serious harm).
The normal route of discharge from hospital for such patients is called a Conditional Discharge. The person is then subject to conditions in the community. They can be recalled back to hospital where necessary to protect the public from the risk posed by the persons mental disorder.
Until now, those conditions could not amount to a deprivation of the patient’s liberty. Therefore, if the person lacked mental capacity a separate power had to be applied such as DoLS (care home) or a Court of Protection Community DoL. People with mental capacity were also affected and s17(3) long leave of absence could be applied.
The new power starting on 18th February means that the Mental Health Tribunal (or Secretary of State) can provide legal authorisation for conditions amounting to a deprivation of liberty to protect others from serious harm*. It applies whether or not the person has mental capacity. However, if the conditions that deprive the patient of their liberty are for their own health or safety and they lack capacity, a DoLS or Court of Protection Community DoL may still be applicable.
* There are further criteria for the Tribunal and Secretary of State
Further information: https://www.legislation.gov.uk/ukpga/2025/33/enacted
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