Guidance

Supervised discharge guidance

Published 18 February 2026

Applies to England and Wales

Guidance on the power to conditionally discharge patients and deprive them of their liberty.

Introduction

This guidance sets out the means by which clinical teams can seek, via the Secretary of State for Justice (SSJ), a conditional discharge and lawfully include a condition that amounts to a deprivation of liberty. This is the result of a change in the law, under the Mental Health Act 2025 (MHA 25).

This power ensures that there are appropriate safeguards to balance public protection issues against the restrictions imposed upon a patient subject to supervised discharge. This includes the requirement for such decisions to be reviewed more regularly than a standard conditional discharge by the First Tier [Mental Health] Tribunal or the Mental Health Review Tribunal for Wales.

There are some patients who would remain indefinitely detained in hospital (either on the ward or on long term community leave) without supervised discharge. This is not an acceptable position when discharge is possible. It has been the subject of much debate within the health and justice arena but also within the wider social context. The principle of holding patients in the least restrictive circumstances is offset by the restrictions imposed by a Court when the patient is sentenced but it is often possible to find a pathway between these two opposing positions and in some cases that pathway will be supervised discharge.

This document provides clear guidance for clinical teams on all the critical elements associated with the provision of supervised discharge by the SSJ and how it will be managed operationally. It is designed to be usable for Responsible Clinicians who are considering supervised discharge for their patient as well as for teams who are managing a supervised discharge patient in the community and reflects the differing challenges that working with these patients brings to bear. Additionally, frequently asked questions will be available to provide further assistance.

1. What is supervised discharge?

1.1 Supervised discharge is a subset of conditional discharge where a condition of that discharge amounts to the deprivation of a restricted patient’s liberty in the community. This power ensures that restricted patients, including those who have capacity but pose a risk of harm to others, can be lawfully discharged and be subject to the supervision necessary to seek to prevent them from reoffending.

1.2 This Secretary of State will take into account the patient’s best interests and provide therapeutic benefit to the patient.  It is a power that was introduced in the MHA 2025.  

1.3 Deprivation of Liberty was defined by the Cheshire West Supreme Court Judgment (2014) which established the “acid test” definition of a deprivation of liberty. Someone is deprived of their liberty if they are:

• under continuous supervision and control and;
• not free to leave

1.4 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. More detail about the kinds of care plan requirements that can be imposed are set out in section 4.

1.5 The changes in the Mental Health Act 2025 mean the power to deprive someone of their liberty should only be used where:

• it is necessary for the protection of another person from serious harm and;
• the patient is no longer benefitting therapeutically from being in hospital

The disposal itself will not be universally appropriate, and the powers are not intended to be used for the vast majority of patients given the deprivation of liberty conditions attached to them. It is not a faster route to a conditional discharge with no deprivation of liberty nor is it expected to be part of the discharge pathway for the majority in the way that use of s17 leave is integral to most patient’s pathways. 

 1.6 Deciding whether to place a patient under supervised discharge will very much depend on the risk factors they pose to others and the ability of relational security available in the community to mitigate those risks. It is only when treatment or detention in hospital has no further benefit for the patient and it is possible to manage risks in the community, with conditions that amount to a deprivation of liberty, that supervised discharge may be appropriate. This support will, at a minimum, involve significant supervision when the patient is in the community and outside their accommodation. 

1.7 Additionally supervised discharge is a disposal that can also be applied by the First Tier (Mental Health) Tribunal/Mental Health Tribunal for Wales (the Tribunal). See section 6 below for further details about the Tribunal process. This guidance focusses on applications to the SSJ only. 

1.8 This guidance replaces previous advice on the use of LTLoA and Technical Recalls. Updated guidance on patients without capacity and Deprivation of Liberty Safeguarding Order (DoLS) can be read here. A list of the antecedents to this legislation can be found at Annex A. This guidance does not change existing policies for managing restricted patients.

You can access further forms and guidance on the MHCS pages.

2.1 Supervised discharge will not be right for most restricted patients who are on a pathway towards discharge. It is not a stepping stone to a conditional discharge with no deprivation of liberty and should be the last option rather than the first. It is better suited to patients whose diagnosis is of a static, lifelong condition rather than a relapsing and remitting mental disorder though there is no definition or diagnosis embedded in the legislation. 

2.2 It is not suited to patients whose risks to the public would be very difficult to manage in the community, recognising that the conditions of a conditional discharge are not enforceable and there is a requirement for the patient to accept supervision. Relational security will be of significance in these cases. Patients pushing boundaries and non-compliance with conditions would likely lead to swift recall as such behaviour would heighten their risk of harm to others. For example, patients who are unlikely to be suitable include (but is not limited to) those: 

• who have used drugs while on overnight leave
• who may not take psychotropic medication if in the community
• who would seek to undermine supervision subtly or otherwise
• who would not comply with supervision by staff
• where risk to the public is unmanageable despite supervision
• whose oppositional behaviours and emotional dysregulation requires more robust measures than the relational security available in the community

2.3 Supervised discharge is not appropriate for any patient who is able to use regular unescorted community leave, even if that leave has been rescinded for reasons such as absconding, using drugs, bringing in contraband or has displayed other inappropriate behaviours on leave. 

2.4 Supervised discharge will not be possible for transferred prisoners who come before the Tribunal for a review of their detention as the more usual route through end of sentence or via the Parole Board will remain appropriate in eligible cases. Supervised discharge is not a control mechanism, but rather an option for the small number of patients who need intensive support and supervision, tailored to their individual requirements, to be able to live and remain in the community without causing harm to others.

3. Preparation for supervised discharge

3.1 If you and the clinical team are considering supervised discharge as a potential disposal for one of your patients, you should read this guidance first. The legislation clearly sets out that the power to deprive someone of their liberty must be used as set out in the MHA 2025: “Conditions amounting to a deprivation of a patient’s liberty may be imposed under subsection (2) if the SSJ is satisfied that those conditions are necessary for the protection of the public from serious harm”.

3.2 It is highly likely that the patients being considered for supervised discharge will be MAPPA nominal cases as either Category 1 or 2 given their offence history and management by MAPPA agencies. Where patients have been considered Level 1 cases in hospital, they may be moved to Level 2 or 3 management as the prospect of a discharge is considered, even where it is supervised.

It is incumbent on the Multi-Disciplinary Team (MDT) to ensure MAPPA are aware of any application for supervised discharge and either discuss this at a MAPPA meeting or conduct a professionals meeting to ensure all agencies are aware and have contributed to risk management plans. This may include MOSOVO or offender managers from the police for those patients subject to notification orders and/or sexual harm prevention orders under the Sexual Offences Act 2003. 

3.3 As with other conditional discharge applications, the Secretary of State will  also take any representations from victims into account when considering discharge conditions. The location of accommodation and its proximity to

possible victim conditions (exclusion zones) or to places that might be problematic for patients, such as schools or parks, may also need to be taken into consideration.

3.4 If MHCS agree, in principle, that supervised discharge is the right pathway, testing on escorted day leave and on escorted overnight leave to the proposed discharge address will be expected. This testing should take place, via existing s17 leave processes,  prior to an application for a supervised discharge. Escorting can be undertaken by accommodation staff (as appropriate) using the provision in s17 (3) of the Mental Health Act 1983.

3.5 An early action for the RC and MDT is to have a discussion with a senior manager from the Mental Health Casework Section (MHCS) about why you think supervised discharge is appropriate for your patient. Senior managers can be contacted by email, MHCSSeniorManagerAdvice@justice.gov.uk. The conversation will cover how the patient’s risks manifest, how risks will be mitigated or managed and where suitable accommodation is likely to be found. Additionally, emphasis will be placed on the skill set of the community team who will manage the patient on discharge and the application form asks for the recall pathway to be identified in advance of discharge. 

3.6 Although there is no set time for this process to take place, the MHCS view is that it will be a long process over many months to move from detention in hospital to an application for supervised discharge. This reflects the need for extended testing on escorted and then escorted overnight leave once a suitable placement has been identified, as well as refinement of the care plan needed on discharge. Of course, not all patients tested in this way will be found suitable for supervised discharge.

Additionally, there may need to be joint hospital staff/accommodation staff training, familiarisation visits by staff to the hospital to meet the patient and engagement with a forensic community team who will manage the patient on discharge. The position of the MDT with regards to a patient being “clinically ready for discharge” will be superseded by the requirements of the SSJ in cases where supervised discharge is a possibility. Supervised discharge will only be agreed once both the patient, and the accommodation, are properly prepared and suitably tested. Experience gained from LTLoA has been critical in developing understanding of the management needs for these patients.

3.7 For those restricted patients who are likely to benefit from supervised discharge, the most important element besides relational security arrangements will be forming positive relationships with community-based staff.

Many of the patients will have spent a significant number of years in hospital and may be highly institutionalised. As a result, they are likely to need a gradual introduction to life in the community, and this can only be facilitated with staff whom patients know and feel able to trust. It has often taken many months or years for inpatient staff to come to understand the functioning of patients, and the magnitude of the task of conveying this knowledge to the community staff should not be underestimated.  Staff must be cognisant of the boundaries for that patient and know their regular behaviour or presentation  to understand when the patient is distressed or acting out of character, which may lead to concerns around escalation of risk. 

3.8 An application for community day leave may be made, under s17 of the MHA 1983, at the point at which the MDT think there is a suitable plan that minimises risk while testing the patient’s ability to undertake leave with one or more escorts into the community. Initially, this might be within hospital grounds, to shops or other services locally and for specific rehabilitative purposes.

Most patients in this situation are granted only escorted leave, but there may be some instances where the leave granted includes some limited unescorted time if safe to do so. Such unescorted time will be carefully considered by both the clinical team and MHCS on a case-by-case basis.  However, this will not materially affect any deprivation of liberty issues as the overall effect of the supervision will be a deprivation. Eventually, the MDT can seek s17 (3) leave to test the patient out while escorted by staff from the proposed placement. Such leave would include day trips to the community placement and to local amenities from the placement.

No unescorted time should be agreed to the accommodation until the patient has been successfully tested on escorted day leave first. Unescorted leave must not occur without the express agreement of MHCS. There is no minimum or maximum time that such leave can be used and determining when there has been enough testing will be on a case-by-case basis. There is generic guidance on s17 leave here.

3.9 Once the MDT are satisfied that day leave has been going well, they can apply to the SSJ for escorted overnight leave to the discharge placement. Using s17 (3) authorisations, staff at the placement can be authorised to act as escorts. Often, such leave starts slowly with one or two nights per week, gradually building up to a total of 7 nights but discussion with MHCS may lead to the permission to vary this approach depending on patient and risk management needs. Such leave will be agreed for set periods and reviewed regularly. Patients may be escorted to and from the placement by hospital staff initially, with this responsibility slowly being transferred to accommodation staff. 

3.10 LTLoA is now entirely superseded by the amendments to the MHA 1983 by the MHA 2025 which makes provision to discharge a patient and deprive them of their liberty i.e. supervised discharge. Of course, it follows that any decision, including a decision to grant supervised discharge, will be taken after the submission of an application from the RC, thorough risk assessment and positive engagement.

4. Application and decision from MHCS for supervised discharge  

4.1 If previous conversations with an MHCS senior manager have confirmed that supervised discharge is potentially suitable, the MDT can work on identifying and delivering the necessary arrangements, including testing on community leave before making an application to the SSJ.  

4.2 The application form includes supervised discharge specific questions. As with all applications it is essential that the application form is completed in full with MAPPA and Victim Liaison Officer comments provided, as is standard.  

4.3 Key areas to consider include: the requirement to have a clear recall pathway for this patient which MHCS will use if recall is required and which therefore must be agreed in advance; greater focus on the accommodation

arrangements and how risk will be managed on an individual basis; clear requirement for testing in advance to ensure that the placement and patient are right for each other. Any changes to the care plan or accommodation

arrangements will need to be discussed and agreed with MHCS before they will be approved and this may mean a new application form must be submitted.

4.4 The application form is set out with a clear steer on how to complete each section. MHCS advise that providing as much information as possible is generally helpful. Supporting evidence and other documents such as an HCR 20 or a psychology report can be submitted with the application as long as the form itself is completed in full. The application form can be accessed here.

4.5 MHCS publish timeliness targets for all key decisions. Following receipt of a complete application form for supervised discharge, decisions should be made within 28 days. As with any other conditional discharge a warrant of discharge will be produced setting out the specific conditions associated with the decision.  

4.6 MHCS will be looking for evidence of considerable planning to understand and mitigate risks to the public including joint working with multiple agencies for their views where necessary. MHCS will scrutinise the risk mitigation factors and, how they will be managed. MHCS will require assurance, via testing on escorted and escorted overnight leave, that the proposed discharge placement, its staffing, and support arrangements are appropriate for your patient on a case-by-case basis.

5. The First Tier Tribunal (Mental Health) and Mental Health Tribunal for Wales 

5.1 Under the MHA 1983, a restricted patient can apply to the Mental Health Tribunal to seek a review of their detention either in hospital or following a conditional discharge. Following the change to the law in the MHA 25, the Tribunal also has new statutory powers in respect of discharged patients to impose conditions that amount to a deprivation of liberty. This may only be done when 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 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. 

5.2  Such patients can apply to have their discharge reviewed between 6 months and a year after their discharge was granted and then every two years thereafter.  As supervised discharge deprives a patient of their liberty when in the community there is a statutory obligation on the SSJ for Justice to refer patients who have not been reviewed or been subject to recall after the first 12 months of their deprivation of liberty. The SSJ is also required to refer cases every two years thereafter should the patient fail to apply (as amended by the Mental Health Act 2025).

6. Supervising supervised discharge patients in the community  

6.1 Patients who move into the community on a supervised discharge are subject to the provision of s117 MHA 1983 aftercare. Part of the planning and testing of prospective discharge arrangements, include identifying the community team, will be considered when the Secretary of reviews an application.  

6.2 All discharged restricted patients are subject to robust supervision and reporting requirements in the community and patients who have been granted a supervised discharge will be under even more scrutiny bearing in mind their

deprivation of liberty. 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 is part of the current requirements under s117 aftercare arrangements for all restricted patients.  

6.3 MHCS would prefer if clinical teams remain part of the local secure or forensic teams and ideally have experience managing patients with forensic issues. Experience from working with patients on LTLoA shows that the nature of such patients can mean placements breakdown and recall becomes necessary.  This has implications for management and availability of beds that hospital managers should be aware of.

6.4 Regular reporting is part of any conditional discharge and forms for patients subject to supervised discharge conditions have been developed. The reports focus on issues that are pertinent for these patients and the risks they may pose. The reporting form is set out with a clear steer on how to complete each section. Community teams are encouraged to be as fulsome as possible and to avoid copying and pasting from previous reports. You can access the reporting form here.

6.5 MHCS publishes guidance on managing restricted patients in the community which remains relevant for managing all conditionally discharged patients.

7. Further Disposals 

Absolute Discharge 

7.1 As with any conditionally discharged patient, those who are supervised on discharge will have the right to apply to the SSJ or the First Tier Tribunal for an absolute discharge. As identified in section 5.2 above the introduction of supervised discharge brings with it a shortened timescale to seek a review from the First Tier Tribunal. There is no set timeframe for any patient subject to supervised discharge to make an application to the SSJ for an absolute discharge.  

7.2 In all instances the SSJ will continue to consider the merits of each request on receipt of an application   However, patients subject to supervised discharge are unlikely to achieve an absolute discharge from the SSJ. The static diagnosis of such patients means the power to recall will remain necessary and the need to protect the patient or others from harm will require the continuation of supervised discharge related conditions in most cases.

7.3 Applications for an absolute discharge can be found here and should be completed having read MHCS’ section 42 discharge guidance.

Conditional discharge without the deprivation of liberty element 

7.4 It is possible for patients to have conditions amounting to a deprivation of liberty removed or added to a more ‘standard’ conditional discharge. Generally, patients who are supervised when discharged will continue to require that supervision so that they will be able to remain in the community but there may be instances when such restrictions could be lifted and the care plan become less restrictive. Adding restrictions may also become necessary should circumstances change. 

7.5 If a team is considering seeking the removal of, or addition of, the conditions amounting to a deprivation of liberty for a patient they should contact the MHCS to discuss the matter. Separately, the Tribunal may decide to amend the conditions of a supervised discharge to remove the deprivation of liberty element should they find that they are no longer required.

MHCS contact information

• General enquiries: mhcsmailbox@justice.gov.uk or telephone 0207 820 5900
• Senior Managers Contact: mhcsseniormanageradvice@justice.gov.uk or telephone 020 8253 4725
• MHCS pages (GOV.UK)

Annex A: Background to the Mental Health Act 2025

• Winterwerp v Netherlands (1979) established that a persisting mental disorder was required for detention in hospital, and established the rights of detained individuals to be able to challenge their detention.
• The Bournewood Case (2004) related to a man with autism who was admitted informally and was denied contact with his carers for three months. It was asserted by the clinical team that because he was compliant he was not deprived of his liberty and had no recourse to the protections of the Mental Health Act 1983 (MHA 1983). This led to the Bournewood Gap.
• MHA 1983 was amended in 2007 to reflect the introduction of the Mental Capacity Act 2005.
• The Mental Capacity Act 2005 (as amended by the Mental Health Act 2007) made provision for Deprivation of Liberty Safeguard (DOLS). These provisions came into force on 1 April 2009. This was a formal response to fill the Bournewood Gap. Detention under the MHA 1983 was required for those who needed detention in hospital (unless consenting to treatment or incapacitous).
• The P v Cheshire West Supreme Court Judgment [2014] UKSC 19 defined the key feature of deprivation of liberty is whether the person concerned is under continuous supervision and control, and is not free to leave.
• The MM Supreme Court Judgment (SSJ for Justice v MM [2018] UKSC 60) held that the MHA does not permit the conditional discharge of a restricted patient subject to conditions which amount to detention or a deprivation of liberty.
• The case of EG, which in effect supported the provision of LTLoA as a practical measure for patients lacking capacity who were not able to be discharged into the community following the MM Judgment.