Mental health (national secure adolescent inpatient service: miscellaneous amendments) (Scotland) regulations 2023: children's rights and wellbeing impact assessment

Child Rights and Wellbeing Impact Assessment

1. Brief Summary

Type of proposal: Scottish Statutory Instrument

The Mental Health (National Secure Adolescent Inpatient Service: Miscellaneous Amendments) (Scotland) Regulations 2023

The purpose of the instrument is to amend the Mental Health (Safety and Security) (Scotland) Regulations 2005 to add National Secure Adolescent Inpatient Service, Foxgrove, Ayrshire Central Hospital Campus, Kilwinning Road, Irvine (“the NSAIS”) to the list of secure mental health services in those Regulations.

The instrument also adds the NSAIS to the list of qualifying hospitals listed in the Mental Health (Detention in Conditions of Excessive Security) (Scotland) Regulations 2015.

This will allow for certain safety and security measures (“the Measures”) to be applied to patients detained in the NSAIS and will also provide patients with the right to contest the level of security under which they are detained.

The NSAIS, is the first medium secure mental health inpatient service for children and young people in Scotland. Its purpose will be to deliver high quality mental health care and treatment for children and young people aged between 12 and 18 years, who meet all the following criteria:

• are subject to measures for compulsory care and treatment under the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”) or part VI of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”)
• have a mental disorder (as defined by section 328 of the 2003 Act)
• present a significant risk to themselves or others
• require a medium secure level of security to meet their needs.

The significant risk of harm, either to themselves or to other people, that patients in medium secure services present means such services must have an adequate level of the Measures to ensure the safety of both patients and those involved in their care and security or good order of the hospital.

The Mental Health (Safety and Security) (Scotland) Regulations 2005

The 2005 Regulations make provision for individuals, detained under the 2003 Act or the 1995 Act, to be classed as ‘specified persons’.

By virtue of the NSAIS being added to the list of hospitals in regulation 2(2)(a) of the 2005 Regulations, all children and young people detained in the NSAIS will be classed as ‘specified persons’. This is the same as for patients detained in the existing adult medium secure hospitals (the Orchard Clinic, the Rowanbank Unit, and the Medium Secure Service in Rohallion Clinic).

However, a patient being a “specified person” does not mean that the Measures will necessarily be applied. Before a Measure can be applied in a particular case, certain conditions set out in the 2005 Regulations must be met. ‘Specified persons’ status means that those detained under the 2003 or 1995 Act, can have certain security Measures applied to them (such as searches or restricting possession of certain items). This is to ensure their safety, and the safety of other patients in hospital. It is part of safe management of patients and the safety of the hospital unit.

Regulation 5 of the 2005 Regulations sets out the ‘General Conditions’ that must be met whenever a specified person’s Responsible Medical Officer is of the opinion that the measure must be applied in the circumstances. A key general condition is that the Measures may only be applied in respect of any specified person where, in the opinion of that person’s responsible medical officer, not to apply them would pose a significant risk to the health, safety or welfare of any person in the hospital or the security or good order of the hospital.

There are also additional conditions that must be met in respect of Measures, such as the conditions in Regulation 6 before a search may take place, which include that a search shall be carried out with due regard for the specified person’s dignity.

The 2005 Regulations also require appropriate records to be made where a measure is applied and for scrutiny and oversight by the Mental Welfare Commission.

And as well as the safeguards set out in the 2005 Regulations, the principles in Section 2 of the 2003 Act apply – including that anyone acting under the 2005 Regulations must act in the manner that best secures the welfare of the child or young person and in the manner that involves minimum restriction on the freedom of the child or young person in the circumstances.

The Mental Health (Detention in Conditions of Excessive Security) (Scotland) Regulations 2015

The 2003 Act allows for an application to be made to the Mental Health Tribunal to contest the level of security a patient is being held in. The patient, or certain others such as their named person, can contest the level of security under which the patient is currently detained.

Once an application is made, the Tribunal can make an order declaring the patient is detained under conditions of excessive security.

Patients subject to a compulsory treatment order, a compulsion order, a transfer for treatment direction or a hospital direction who are detained in “qualifying hospitals” may make an application. The meaning of “qualifying hospital” is set out in the 2015 Regulations by listing specific hospitals/ hospital units. At present, all medium secure hospitals in operation in Scotland, are listed. These existing units are for adult patients.

The amendment made by the instrument to the 2015 Regulations is required to ensure parity across medium secure units and uphold the rights of children and young people by providing patients detained in the NSAIS the right to appeal conditions of excessive security.

Start date of proposal’s development: October 2022

Start date of CRWIA process: November 2023

2. With reference given to the requirements of the UNCRC (Incorporation) (Scotland) Act 2024, which aspects of the proposal are relevant to/impact upon children’s rights?

All persons detained at the NSAIS will be subject to compulsory care and treatment under the 2003 Act or the 1995 Act. Therefore, the Regulations will affect all young people, aged between 12 and 18 years, whose detention in the NSAIS is authorised under the 2003 or 1995 Acts.

These Regulations contain amendments to existing Regulations and are a means of protective Measures to safeguard vulnerable individuals and protect their rights. As such, these Regulations do not create any new enforcement or monitoring mechanisms and simply apply the existing mechanisms to a new hospital. The specified person legislation is already applied to young people in the established adolescent inpatient units across Scotland.

These Regulations will uphold the rights of children and young people detained in conditions of medium security and will have a positive impact in respect of a number of articles of the UNCRC, including:

• Article 3 Best interests of the child

Anyone acting under the 2005 Regulations must act in the manner that best secures the welfare of the child or young person and in the manner that involves minimum restriction on the freedom of the child or young person in the circumstances.

Furthermore, the Regulations also require conditions to be met on the application of them, for record keeping and for scrutiny and oversight by the Mental Welfare Commission.

These all act as safeguards on the rights of the children and young people who may be detained in the NSAIS, while enabling necessary Measures to be taken to ensure their safety.

• Article 5 Parental guidance and a child’s evolving capacities

Parents and carers will be involved as much as possible (and where appropriate) in all aspects of their child's care and treatment. For under 16 year olds, the parent will be the default Named Person under the Mental Health (Care and Treatment) (Scotland) Act 2003, and have rights and responsibilities associated with that role.

Some 16 or 17 year olds may also nominate a parent as their Named Person. This would include being notified of any specified person Measures applied.

• Article 6 Life, survival and development

The application of the Measures are to help protect the safety of children and young people who require to be detained in the NSAIS in conditions of medium security. The Measures will be applied only when necessary, and they will be proportionate to the potential risk.

• Article 12 Respect for the views of the child

Before a child or young person is admitted and throughout their stay in the NSAIS, they will be involved in and supported to make decisions around all aspects of their care and treatment. This will include providing young patients with clear, accessible information about the secure environment and procedures that apply to all patients, and any that relate to them individually.

• Article 19 Protection from violence, abuse and neglect

The 2005 Regulations provide for protection of children and young people from overreach of those responsible for their care while detained regarding the Measures. Further, under 2015 Regulations, children and young people detained in the NSAIS have the right to appeal conditions of excessive security.

• Article 24 Health and health services

The NSAIS is the first medium secure mental health inpatient service for children and young people in Scotland.

Prior to its opening, there is a population of young people living in Scotland whose complexity of presentation and severity of risk cannot be met within the NHS in Scotland. The NSAIS aims to meet that need and provide a dedicated and appropriately skilled multidisciplinary healthcare team to deliver the level of care that these young people require.

• Article 25 Review of treatment in care

The Regulations will provide patients with the right to contest the level of security under which they are detained by applying to make an excessive security application to the Mental Health Tribunal. Under the Mental Health (Care and Treatment) (Scotland) Act 2003, such an application can only be made once per year.

Care and treatment of each individual will be managed under the Care Programming Approach which is a legal framework requiring regular review. It holds accountability for Responsible Medical Officers, local authorities and all disciplines and agencies to clearly outline the care plan and justification for any restrictive Measures with a clearly defined progress plan.

• Article 33 Drug abuse

Under the Regulations, young people admitted into a medium secure inpatient service may have the following Measures considered, if the Responsible Medical Officer considers it is necessary:

• Searching patients
• Taking samples
• Restricting certain things
• Prohibiting or restricting visitors
• Searching visitors
• Surveillance

All these Measures will work towards keeping the children and young people, and staff and visitors, safe from drug abuse within the unit.

3. Please provide a summary of the evidence gathered which will be used to inform your decision-making and the content of the proposal

Evidence from:

• Existing research/reports/policy expertise

The opening of the facility supports the vision that is set out in Scotland’s “Mental Health and Wellbeing Strategy” for a Scotland that is “free from stigma and inequality, where everyone fulfils their right to achieve the best mental health and wellbeing possible.”

One of the outcomes within the Strategy is: “Increased availability of timely, effective support, care and treatment that promote and support people’s mental health and wellbeing, meeting individual needs.”

Prior to the opening of the NSAIS, there is no medium secure mental health inpatient service for children and young people in Scotland. The NSAIS will play a key part in delivering this outcome by providing a dedicated and appropriately skilled multidisciplinary healthcare team and setting to deliver the level of care that some young people require, closer to home.

Adding the NSAIS to the Regulations will ensure that the service can implement a range of Measures to support a therapeutic environment and ensure the safety and security of children and young people as well as staff and visitors. These Measures will be applied only when necessary, and they will be applied in a proportional way that is sensitive to the developmental stage of the child or young person. When the Measures are applied, they will also uphold and protect the human rights of children and young people and ensure that they can access an appeal mechanism against the level of security into which they have been placed.

Consultation/feedback from stakeholders

A short, targeted consultation was undertaken by Scottish Government between 28 September 2022 and 12 October 2022. The consultation gave stakeholders an opportunity to provide their views on adding the NSAIS to the list of hospitals in which these Regulations can be applied or whether additional conditions on the Measures should be applied to children and young people in a medium secure service. A total of nine responses were received from organisations that are key bodies charged with upholding the human rights of children in Scotland, and individuals.

Responses indicated broad support for the proposed amendment to the 2015 Regulations. Follow up meetings were held with respondents to allow further discussion of their responses. Key themes included: a range of issues related to the wider implementation and deployment of operational Measures relating to safety and security; the issue of children and young people consenting and having capacity to consent to and fully comprehend the Measures; and issues around parental rights, least restrictive intervention, and guidance.

During the Health, Social Care and Sport Committee session on 7 November 2023 the following two questions were raised:

1. We need to make sure that the care is age appropriate. Will the care be targeted at the specific age of the young person?

Response

The Measures will be applied only when necessary, and they will be applied in proportional way that is sensitive to the developmental stage of the child or young person.

The Scottish Government are confident that the application of the safety and security measurements are to help to protect the safety of children and young people who require to be detained in the NSAIS in conditions of medium security.

There are various safeguards built into the use of the Measures which seek to protect rights while protecting safety. These include the conditions on when and how the Measures can be used, record keeping, and oversight and scrutiny by the Mental Welfare Commission.

These all act as safeguards on the rights of the children and young people who may be detained in the NSAIS, while enabling necessary Measures to be taken to ensure their safety. Prior to admission and throughout their stay in the NSAIS, children and young people will be involved in supported decision-making around all aspects of their care and treatment. This will include providing young patients with clear accessible information about the secure environment and procedures which apply to all patients, and any that relate to them individually.

The multidisciplinary team will use approaches and tools, such as communication aids, to facilitate their understanding. The child or young person's capacity to make decisions about Measures relating to safety and security will be regularly assessed and reviewed by the Responsible Medical Officer.

2. Can children and young people in the NSAIS consent to Measures that are authorised under the 2005 Regulations, including invasive searches and swabbing?

Response

The Scottish Government sought advice from clinicians on the issue of young people consenting, and their capacity to consent, to security Measures and what may happen in certain scenarios.

Prior to admission and throughout their stay in the NSAIS, children and young people will be involved in supported decision-making around all aspects of their care and treatment. This will include providing young people with clear accessible information about the secure environment and procedures which apply to all young people within the unit, and any that relate to them individually.

The multidisciplinary team will use approaches and tools, such as communication aids, to facilitate their understanding. The child or young person's capacity to make decisions about Measures relating to safety and security will be regularly assessed and reviewed by the Responsible Medical Officer.

In all situations, efforts would be made to support the child or young person in engaging with the recommended measure. The multidisciplinary team would consider carefully how best to achieve this. The young people's dignity and privacy would be given due regard. For example, increasing levels of support and supervision may be more effective than undertaking a personal search. The Responsible Medical Officer would take all these factors into account when recommending that an intervention proceed without the young person's consent. A search without consent from the young person would only take place if there were significant risks to the safety of the young person or other young people within the ward. These searches are intelligence lead searches. Such an incident would be reviewed and discussed with child protection colleagues to review if it was the appropriate action and to monitor these incidents. There will be regular audit of these processes, and these searches will be completed in areas that have the provision of CCTV.

• Consultation/feedback directly from children and young people

Early design concept of the building and service

A Patient and Public Reference Group (PPRG) was established by NHS Ayrshire and Arran with a specific remit for the new facility, and young people were elected as chair and co-chair. The Group offered invaluable insight about how the design could meet the needs of patients and their families.

Young people from the Irvine Youth Centre were involved in early design concept meetings and directly involved in naming of the NSAIS as ‘Foxgrove’. Artists have also attended and collaborated with young people from Rossie Secure School and Irvine Academy on the design, and social media engagement has been utilised to reach wider audiences of young people to allow colours/quotes to be selected for the decoration of the NSAIS.

Young people have also been involved in the staff recruitment process. Young people from North Ayrshire Council Modern Apprenticeship programme (17-19 year olds) attended and participated in group interview and 1-1 interview sessions where they selected and asked their own questions, and provided feedback on interviewees.

Views on the Measures

In April 2025, The Scottish Government also asked the Children’s Centre for Youth Justice (CYCJ) to host targeted engagement sessions with children and young people with experience of secure care to gather their views on the Measures. Five children and young people took part in the focus group and the following captures what they told us:

Fairness and inclusivity

The children and young people were asked for their views on how the Measures may be implemented in a fair and inclusive way. Views captured included that searches of staff and young people are seen as a fair method to keep everyone safe however the preference would be that searches of young people are conducted by someone of the same sex as the child or young person and for them to be carried out in a dignified way. Mixed views were shared regarding searching visitors – some participants felt that this was fair as people might try to give dangerous things to young people, but others felt that it was too intrusive. Surveillance in shared areas was agreed however the children and young people noted the need to have privacy in their own rooms. In terms of restricted items, mobile phones were discussed and concerns raised over harmful online content which poses risks to people’s mental health; therefore, the group believed access to mobile phones should be thoroughly considered by staff. The group believes that there should be more freedom in the NSAIS than there is in secure care and that mental health problems should not be treated like a crime.

Communication

Views were gathered on how staff could communicate with children and young people about the Measures, considering the age range of young people within the unit and differing levels of understanding. The group suggested that higher age groups should have more detailed explanations of reasons behind the Measures, whereas younger children should be communicated to more sensitively and face to face. They suggested it may be helpful for younger children to have a member of staff to talk through a leaflet about the Measures with them. Other methods of communication that would be considered helpful were having posters around as visual reminders of the Measures and rules including having posters as reminders within individual bedrooms.

Right to Appeal

Children and young people detained in the NSAIS will have the same right of appeal against detention in conditions of excessive security as adults detained in other medium secure inpatient settings. The group were asked their views on how this could be communicated to children and young people. Posters were suggested as a good way to remind young people that they have the right to contest the Measures or security. It was also suggested that forms could be made available in communal and individual areas to be completed at the young person’s own pace. The group noted the importance of having a settling in period on first arrival, noting the transition to the unit will be a big change. Once settled, the child or young person should be given the opportunity to sit down with a trusted adult, for example their key worker who they already know, to have the Measures explained to them as the information is easier to absorb when the child or young person is comfortable with someone. The group noted the importance of simplified language and the expectation that not all information will be absorbed at once. The group also suggested that staff should explain the daily routine and rules in understandable ways, posters were identified as a helpful tool. Opportunities for participation and being able to influence the service when the child or young person is there was identified as something that would be helpful for the children and young people receiving care and also the opportunity to get together with other young people to share views on the care being received.

Support

We asked the group to share ideas/views of any other supports that would help a young person to feel safe, connected and included while being supported in a restricted environment. It was suggested that the service being referred to as a ‘ward’ could be intimidating and ‘house’ would be preferable. Communication was raised again as an important factor with communication being done in a way that is welcoming, comforting, calm, and gives people hope. In terms of settling in on arrival, it was suggested that it is helpful for new residents to be shown around the facility first and given a chance to settle in, mix with others and make some friends. There should be outdoor space, activities, games, and socialising. Fidget toys were suggested as being helpful too. Both optional and mandatory activities should be made available. The group suggested this be monitored and young people who are opting out of an activity could be checked on to ensure they are okay.

On individual Measures such as nicotine restriction, the group suggested that if nicotine is being restricted then a replacement, such as a patch, should be made available.

Staffing

In terms of staffing and support – the group noted the importance of staff being ‘good with kids’ and also the importance of having a key worker or known trusted adult being the first to intervene if something happens so it is not someone the child or young person doesn’t know well who is intervening first. Similarly, the group highlighted the importance of having someone to talk to and staff being given the time to talk to and get to know the individual young people. It was important to the group that staff should have training to understand trauma responses and be able to reassure and communicate with the young people in a patient and understanding way.

General Safety

Regarding general safety, the group proposed that audio recording cameras could be in place to ensure treatment is safe and fair. They also suggested that camera recordings could be checked by someone out with the service, such as an inspectorate.

4. Further to the evidence described at ‘3’ have you identified any 'gaps' in evidence which may prevent determination of impact? If yes, please provide an explanation of how they will be addressed

Research is not available directly from young people with experience of being admitted to a national inpatient unit as this is the first service to be provided in Scotland. However, evidence was collected from young people with experience of secure care who will have experienced similar care environments.

Stakeholders and children and young people that did provide evidence were broadly in agreement with the amendments to Regulations.

5. Analysis of Evidence

The Scottish Government has fully considered the findings from the consultation and subsequent face to face meetings with stakeholders, and evidence directly from children and young people via focus groups.

It is expected that children and young people within the NSAIS will benefit positively from the amendments to the Regulations to include the NSAIS in terms of their safety and security.

Whilst some of the evidence suggests areas of concern around the details of implementation of the Regulations, the Scottish Government are confident that the Regulations will ensure appropriate levels of the Measures to ensure the safety of both patients and those involved in their care, and the security of the NSAIS.

6. What changes (if any) have been made to the proposal as a result of this assessment?

Evidence gathered from stakeholders and children and young people with experience of secure care indicated broad support for the proposed amendment to the 2015 Regulations, therefore no changes have been made to the proposal itself.

However, this information and CRWIA has been shared with NHS Ayrshire and Arran (the health board responsible for the NSAIS) to support the development of practices and policies that will be put in place in the NSAIS. Implementation will be key.