A Deep Dive into the Mental Health Bill 2024 – Changes to the Mental Health Tribunal and after-care

On 7 July 2025, Doughty Street Chambers hosted the fourth event in a series of webinars about the Mental Health Bill (‘the Bill’). The webinar concerned changes that the Bill proposes making to the powers of the Mental Health Tribunal (‘MHT’) and to the provision of after-care pursuant to s.117 of the Mental Health Act 1983 (‘MHA 1983’).

The webinar was chaired by Aswini Weereratne KC, head of Doughty Street Chambers. The speakers were Sophy Miles and Elizabeth Cleaver, who are also barristers at Doughty Street Chambers, and Zoe Mears who has 30 years of experience in mental health social work and currently is Head of Social Work at a large NHS Trust.

Aswini Weereratne KC: Summary of changes

The webinar began with an outline of the five key changes proposed by the Bill which touch upon MHTs. 

1. Clause 7: Aligns the criteria which the MHT apply when considering whether to discharge a patient with the application criteria, which are themselves amended by Clause 7 of the Bill.
2. Clause 30: Amends the periods in which patients may apply to the MHT to, in essence, permit sooner MHT scrutiny.
3. Clause 31: Provides that, after the expiry of certain periods, it will be mandatory to refer patients’ cases to the MHT.
4. Clauses 32-33: Permits the MHT to conditionally discharge restricted patients into conditions amounting to a deprivation of liberty. 
5. Clause 35: Allows the Secretary of State to also impose, in respect of conditionally discharged restricted patients, a condition amounting to a deprivation of liberty. 

There are two key changes to after-care provision: 

1. Clause 46: Empowers the MHT to recommend that responsible after-care bodies make plans for the provision of after-care services for the patient.
2. Clause 46: Requires the responsible after-care bodies to jointly give written notice to the patient if they consider that they no longer need after-care services.

These changes have been uncontroversial in the report stages in both the House of Lords and the House of Commons, so they are likely to become law. However, concerns were raised in both Houses about the impact of the changes on MHTs, including whether sufficient training and resources will be allocated to implicated professionals, and whether there will be appropriate use of the power to conditionally discharge patients into conditions amounting to a deprivation of liberty.

Liz Cleaver: Deprivation of liberty and supervised community discharges

One of the key changes in the Bill is the power for MHTs and the Secretary of State to affect ‘supervised community discharges’, which is the term used to describe the discharge of a restricted patient into the community with a condition that amounts to a deprivation of their liberty. 

The power is being introduced to meet the problem identified in Secretary of State for Justice v MM [2018] UKSC 60, namely that some forensic patients pose a risk to others upon discharge to hospital, but those risks: (i) cannot be managed under the framework of the Mental Capacity Act 2005 because the patient has mental capacity in the relevant domains, and; (ii) will not be mitigated by further treatment in hospital. 

This revealed a gap in the law, as the Supreme Court in MM held that the Mental Health Act 1983 conferred no powers on the MHT to conditionally discharge restricted patients to a place where they are required to live in conditions amounting to a deprivation of their liberty. The Wessely Review recommended that the Government legislate to fill this gap, with Secretary of State guidance recommending that, until that change was introduced, relevant patients should be granted long-term leave under s.17 MHA 1983 into conditions amounting to a deprivation of their liberty. 

The Bill finally addresses this statutory gap. Clause 32 proposes empowering the MHT to affect supervised community discharges where a two-stage test is satisfied:

1. ‘Conditions amounting to a deprivation of the patient’s liberty are necessary for the protection of another person from serious harm while the patient remains discharged from hospital’;
2. ‘For the patient to remain discharged subject to those conditions would be no less beneficial to their mental health than for them to be recalled to hospital’.  

The Secretary of State, too, can affect supervised community discharges. However, the test for the Secretary of State appears less onerous than it is for MHTs. According to Clause 35:

‘Conditions amounting to a deprivation of the 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’. 

It is unclear how many patients this change will affect. On 17 June 2025, in the House of Commons’ Committee Stage, Stephen Kinnock, a Labour MP, said that the provision would be relevant to ‘well under 1%’ of all MHT cases. On current data, this translates to ‘well under’ 168 cases each year. However, as of 31 December 2024, there were 4,644 detained restricted patients, and the change is applicable to all of them. 

While there is no opposition to introduction of this new power, concerns have been raised about its use and impact. The key concerns have been that: 

• Supervised community discharges will be used far more than is currently predicted, as occurred with Community Treatment Orders (‘CTOs’). 
• Racial minorities may be disproportionately subjected to use of the power, as also occurred with CTOs. Indeed, when the Joint Committee of Human Rights reported in May 2025, it expressed ‘surprise […] that the Mental Health Bill contains no measures directly addressing racial and ethnic inequalities’, and MIND have called for guidance on the use of the power.
• There will not be enough resources allocated to fund the clinicians and lawyers involved when the power is used.
• If the currently-abandoned Liberty Protection Safeguards are introduced as law, and replace the deprivation of liberty framework, it is unclear how they will interact with the supervised community discharge power. 
• The power may be used in respect of those who lack capacity to make decisions about their residence and care, when the Mental Capacity Act 2005 would be the appropriate statutory scheme.
• Whether patients who are currently in hospital and expected to be there for the foreseeable future will now face supervised community discharge, and whether they will raise legal challenges to that unanticipated prospect.

As such, while the principle of supervised community discharges is welcome, there are real concerns about whether the power will be misused. 

Zoe Mears: Impact of changes on Trusts

The starting point in any change to the MHT should be to recognise its real impact on patients’ lives. MHT review vindicates patients’ rights, reduces the risk of unjustified or unequal treatment, and furthers transparency and accountability in mental health care. Indeed, the mere fact of an approaching MHT hearing can focus clinicians’ minds on the patient’s progress, and helpfully stimulate thinking about what they need to continue towards recovery. 

It is welcomed that there will be a reduction, from 6-months to 3-months, in the initial duration for  patients detained under s.3 MHA 1983. The longer timeframe produced trepidation in patients - especially those who had never been detained for mental health treatment before.Being told that you will be detained for up to 6 months (currently) is often heard in the moment as meaning you will be in hospital for that full duration, so its shortening should reassure patients in the early stages of their detentions. 

It is also good news that there will be a reduction in time before automatic references are made to the MHT, for patients detained under s.3 MHA 1983, for those with a CTO and for restricted patients. Such references will ensure safeguard patients’ rights and focus clinicians’ minds. 

However, resourcing these changes may be challenging. A Governmental Impact Assessment in November 2024 estimated the costs of implementing the Bill to be around £5.3 billion, across housing, health and social care. Of that figure, there will be a £1.9 billion cost to the NHS and a £287 million cost to His Majesty’s Courts and Tribunal Service (including the associated Legal Aid fees of practitioners). The largest driver of cost was said to be the new automatic referrals. 

The Impact Assessment also provided empirical data on use of MHA 1983. As at November 2024, there were 52,458 detentions, of which 5,618 involved CTOs, and 20,000 to 25,000 MHT hearings annually. It is estimated that the number of MHT hearings will rise by 30-40% by the time the Bill is fully implemented in 2031/32. In Zoe’s Trust, this would mean 99 to 132 more hearings each year.

An increase in hearings would cause an increase in work for staff. In the Mental Health Law Office of Zoe’s Trust, which manages the statutory documents and communicates patients’ applications to MHTs, the workload would increase by 37 to 50 hours each month, or 445 to 595 hours each year. To manage this work, it would be necessary to hire one or, more likely, two new full-time administrators. 

The Bill’s after-care changes would also increase professionals’ work, and that may be no bad thing. It is sometimes difficult, when a patient is placed out-of-area, to engage the local authority and Integrated Care Board in that area to think proactively about after-care. This is especially true in forensic, eating disorder and deaf services. If, as is proposed, the MHT could recommend that those bodies consider making plans for after-care and reconvene if nothing is done, professionals may start thinking ahead to facilitate discharge sooner and more effectively. This would be a welcome change. 

Sophy Miles: Possible new arguments before MHTs

The Bill will support a range of new arguments at MHT hearings. In essence, the MHT may now have to take a more granular approach to hearings, which is appropriate in light of the judgment of the European Court of Human Rights in Spivak v Ukraine [2025] EWCHR 136, which emphasised that MHT oversight must be ‘rigorous’ to ensure that interferences with patient autonomy are ‘proportionate and justified’. 

Sophy discussed three new arguments.

1. There is no ‘psychiatric disorder’:This flows from Clause 3, which defines the term as ‘mental disorder other than autism or learning disability’. Such a disorder must be present to justify detention, unless pursuant to s.2 MHA 1983. Accordingly, the MHT must first be satisfied that a ‘psychiatric disorder’ in fact exists. 
   
   This may provoke contentious diagnostic issues. For example, there may be debate about whether a patient is autistic or has a personality disorder (e.g. Emotionally Unstable Personality Disorder), and about what part of a patient’s presentation is being relied upon to justify the detention. This would require a detailed analysis and, perhaps, use of expert evidence. Hearings may take longer, and may lead to arguments that one member of the MHT panel should have special expertise in, for example, learning disability and autism. 
    
2. The ‘serious harm’ test is not satisfied: Clause 5 inserts the test into the criteria for detention under s.2 MHA 1983 (which currently asks whether detention can be ‘justified in the interests of patient’s health, safety or with a view to the protection of others’, but will in future ask whether ‘serious harm may be caused to the health or safety of the patient or of another person unless the patient is so detained’) and s.3 (which currently asks whether detention is ‘necessary in the interests of patient’s health, safety or with a view to the protection of others’, but will in future ask whether ‘serious harm may be caused to the health or safety of the patient or of another person unless the patient receives medical treatment’).
   
   The Bill’s explanatory notes state that the ‘serious harm’ test is intended to limit the number of people detained under MHA 1983, consistently with the ‘principle of least restriction’. As such, submissions may now be made to MHTs that the evidence is insufficiently certain or strong to support that there is a risk of ‘serious harm’, and that it ‘may’ be caused without detention, especially if a patient has never given rise to a risk of harm before. The MHT may be asked to consider what alternatives to detention exist, and may require more time and evidence in hearings to scrutinise the risks issues adequately.
    
3. Treatment carries no ‘therapeutic benefit’: Currently, the MHT need only consider whether there is ‘appropriate medical treatment’ for the patient, which is very broadly defined as treatment, ‘the purpose of which is to alleviate or prevent a worsening of the disorder or one or more of its symptoms or manifestations’. The Bill proposes that, in future, treatment must be shown to have a ‘reasonable prospect’ of having that effect. 
   
   The explanatory notes state that the question is not assessed on the balance of probabilities, but the decision maker must consider whether there is ‘a reasonable possibility that a patient will derive some benefit’. It is stated that further guidance will be provided in an updated Codde of Practice state that the Code of Practice. While one might hope that treatment would never be prescribed without that a ‘reasonably possibility [of] some benefit’, the contrary was evident in Avon and Wiltshire Mental Health Partnership [2023] UKUT 205, in which treatment was not tailored to the patient’s diagnosis, and the treatment which was in fact “essential” was not available.

Taken together, these changes mean that professionals will have to work harder to avoid the MHT discharging patients pursuant to s.72 MHA 1983. The MHTs, in turn, may require more time, evidence and other resources to engage with the issues fully.

Related events

Doughty Street Chambers thanks all attendees. Links to the other webinars in this series are below:

• 21 January 2025: Sophy Miles, Liz Cleaver and Oliver Lewis introduced the Mental Health Bill and the topics that would be discussed throughout the seminar series. The write-up is here.
• 27 February 2025: Sophy Miles, Elizabeth Cleaver and Laura Shapcott held a seminar about changes to the Bill, Advance Choice Documents and the aims of the Wesselley Review. The write-up is here. 
• 4 March 2025: Oliver Lewis and six speakers further discussed the extent to which the Bill will help people with autism and learning disability. The write-up is here.