Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026: consultation analysis and SG response
Consultation analysis and Scottish Government response on extending the ability to specify recorded matters under the Mental Health (Care and Treatment) (Scotland) Act 2003 to patients subject to forensic mental health orders.
Executive Summary
This report presents an analysis of responses to the Scottish Government consultation on the proposed Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026. The consultation asked for views on extending the recorded matters framework to relevant forensic mental health orders, including Compulsion Orders, Compulsion Orders with Restriction Orders, Hospital Directions and Transfer for Treatment Directions.
Most respondents voiced strong support for extending recorded matters to forensic mental health orders and saw this as a way to address an unjustified difference between civil and forensic patients. Many respondents commented that the changes would also support parity, participation, procedural fairness and compliance with human rights standards.
The majority of respondents did not propose specific amendments to the text of the 2026 Proposed Draft Order. One stakeholder proposed amendments, which are currently under consideration. Other comments focused primarily on implementation. This included guidance, accessible information, advocacy and legal support, workforce and Tribunal capacity, resourcing, monitoring and whether recorded matters can be delivered in practice.
A small number of respondents asked how some patients would be supported to exercise the new rights. This included patients without a named person, patients whose named person route is unavailable or unsuitable, and patients who may lack capacity to apply.
Support was generally accompanied by practical caveats. Respondents said the new rights will only be meaningful if patients and named persons understand them, can access advocacy and legal support where needed, and services can deliver the treatment, care, support or other provision specified in recorded matters.
Across the responses, the same practical issues appeared repeatedly. These included clear national guidance, accessible information, standardised forms, training for professionals and Tribunal members, realistic assessment of workforce and Tribunal capacity, and early monitoring after implementation.
A number of respondents noted that the proposed Order is targeted. They said it may not address wider concerns around the enforceability of recorded matters, resource constraints, accommodation shortages, community service availability or broader reform of mental health and capacity law. These points were generally presented as issues for implementation planning and future reform, rather than reasons to oppose the proposed Order.