Conditional discharge conundrum

The Mental Health Act 2025 is bringing about a plethora of changes to the law as we have known it for 40 years. Many of the changes aren't due to come into force for some time. However, changes to the current law in respect of conditional discharge for forensic patients came into force on 18 February 2026.

Supreme Court in 2018

In the case of SSJ v MM, the court found that it was unlawful for conditions to be imposed by either the Secretary of State or the Mental Health Tribunal (MHT) on a restricted patient subject to a conditional discharge, which would amount to a deprivation of liberty (DoL). 

Readers will know that Cheshire West established that a DoL occurs where the individual is under continuous supervision and control and isn't free to leave. 

This judgment resulted in patients who would otherwise be eligible for a conditional discharge being stuck in hospital.

For those patients that lacked capacity, a conditional discharge without conditions could still be granted by the MHT, with the DoL on discharge being authorised via Court of Protection proceedings. However, this was a lengthy and protracted process.

For those patients that would ordinarily have been eligible for a conditional discharge and had capacity, this judgment meant that, even where they were considered ready for discharge but their risks were such that they required a level of supervision upon discharge that amounted to a DoL, they would remain in hospital, as there was no other avenue to pursue in securing a discharge.

Changes to the law

The Mental Health Act 2025 has enacted a much-needed change. Conditions amounting to a DoL can now be imposed upon a patient, effectively reversing the established law.

Section 73(2)(c) of the Mental Health Act 1983 has been amended to allow a conditional discharge where:

“(c) the tribunal

(ii) is satisfied that conditions amounting to a deprivation of the patient’s liberty would be necessary for the protection of another person from serious harm if the patient were discharged from hospital, and is also satisfied that for the patient to be discharged subject to those conditions would be no less beneficial to their mental health than for them to remain in hospital”

In addition, section 42 Mental Health Act 1983 has been amended:

(2A) “Conditions amounting to a deprivation of a patient’s liberty may be imposed if the Secretary of State is satisfied that those conditions are necessary for the protection of the public from serious harm.”

Where it's considered that a restricted patient no longer requires treatment in a hospital setting, and any related risks can be safely managed in the community with conditions being imposed that deprive them of their liberty, the MHT and Secretary of State will be able to conditionally discharge the patient.

Tribunal eligibility

The change to the current law also allows patients to have decisions on conditional discharge reviewed more regularly by MHTs. They'll be entitled to an MHT in the second six months of their discharge (as before) and thereafter every two years. Where a patient doesn't apply for an MHT, their case will be referred after a year and thereafter every two years.

Guidance

HM Prison and Probation Service issued guidance and 23 accompanying FAQs on 18 February to accompany the change in law. It relates to applications to the Secretary of State for Justice.

For some reason it refers to “supervised discharge” which is incorrect.  That aside, here are some key points within the guidance:

• The power to deprive someone of their liberty should only be used where it's necessary for the protection of another person from serious harm and the patient is no longer benefitting therapeutically from being in hospital
• The powers aren't intended to be used for the vast majority of patients
• It isn't a faster route to a conditional discharge with no deprivation of liberty
• It isn't expected to be part of the discharge pathway for the majority in the way that use of section 17 leave is integral to most patient’s pathways
• Deciding will very much depend on risk factors posed to others and the ability of relational security available in the community to mitigate those risks
• It won't be right for most restricted patients
• Paragraph 2.2 lists the patients unlikely to be suitable
• Section 3 covers in a lot of detail the preparation required – a long process over many months
• At section 5 it notes the tribunal’s new powers too

The First Tier Tribunal also issued guidance earlier this month. This is a much shorter read!  

It includes the questions:

• Is the patient’s capacity to make decisions about their accommodation, care and treatment relevant?
• Does a patient have to consent to being subject to conditions which deprive them of their liberty?

However, concern has been expressed that a bit of a conundrum has been created, and such a case may be before the courts soon…

Watch this space!

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