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.
1. Background
Recorded matters are a mechanism under the Mental Health (Care and Treatment) (Scotland) Act 2003. They allow the Mental Health Tribunal for Scotland (the Tribunal) to specify particular medical treatment, community care services, relevant services or other care that should be provided as part of a person’s compulsory care and treatment arrangements.
At present, recorded matters are available for civil Compulsory Treatment Orders (CTOs). They are not currently available in the same way for people subject to certain forensic mental health orders. The Court of Session judgment in X v Mental Health Tribunal for Scotland [2022] CSOH 78 found that the absence of recorded matters for patients subject to a Compulsion Order was incompatible with Article 14 of the European Convention on Human Rights because comparable rights were available to civil patients.
The proposed Remedial Order seeks to address that incompatibility by extending recorded matters provisions to relevant forensic orders. Respondents generally understood the proposals as a targeted reform intended to align forensic and civil provisions without changing the criteria for forensic disposals or the public protection tests that apply.