Restricted patients (which is the term used to describe mentally disordered offenders who are detained under the Mental Health Act) can be subject to conditions when discharged by the First Tier Tribunal or the Secretary of State for Justice if they no longer need detention for treatment in hospital, but there are continuing risks that cannot otherwise be safely managed in the community. This is known as conditional discharge. See also Working with Restricted Patients (HM Prison and Probation Service).
Supervised discharge is a type of conditional discharge used where conditions attached to the discharge amount to the deprivation of a restricted patient’s liberty in the community. This power ensures that restricted patients, including those who have mental capacity but who pose a risk of harm to others, can be lawfully discharged from hospital but subject to the supervision necessary to seek to prevent them from reoffending.
This change was brought in by section 35 Mental Health Act 2025, which amended section 42 Mental Health Act 1983. The change effectively reverses the Supreme Court’s decision in SSJ v MM [2018] UKSC 60 which held that neither the Secretary of State for Justice nor the First Tier Tribunal could impose conditions amounting to deprivation of liberty.
Following the changes which came into force on 18 February 2026, such conditions can be imposed by the Secretary of State for Justice if ‘necessary for the protection of the public from serious harm’. For the First Tier Tribunal to impose them it must believe they are necessary for the protection of ‘another person’ from serious harm and, in addition, that such discharge ‘would be no less beneficial to [the patient’s] mental health than for [them] to remain in hospital’.
This means that the power to impose conditions having the effect of depriving someone of their liberty should only be used where:
The provisions are intended to be used for the small number of cases which involve restricted patients who have complex needs and pose a high risk of harm to the public due to their violent or sexual behaviour, which is a result of their mental illness, but are no longer benefiting from the extremely restrictive regime of detention in hospital. Following the Supreme Court ruling, these patients could no longer be conditionally discharged into conditions of constant supervision to manage this risk, with their consent.
These changes apply to pre-existing and future restricted patients.
This will have the effect of superseding the use of long-term leave of absence.
The deprivation of liberty arrangements will not be universal, as patients will require diverse supervision arrangements as part of their care plan, which may include bespoke elements in individual cases. However, the minimum restriction is that such patients will be supervised when in the community to the extent that this amounts to a legal deprivation of liberty.
Patients who move into the community on a supervised discharge are subject to the provision of aftercare under section 117 Mental Health Act 1983. Such patients will be managed by a community-based team including a Responsible Clinician and a Social Supervisor who may also be a Social Worker. This already forms part of the current requirements under s117 aftercare arrangements for all restricted patients.
As with any conditionally discharged patient, those who are supervised on discharge will have the right to apply to the Secretary of State for Justice or the First Tier Tribunal for an absolute discharge.
Supervised Discharge Guidance (HM Prison and Probation Service)
