Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026: consultation analysis and SG response

5. Key findings

The main findings were:

• respondents broadly supported extending recorded matters to forensic mental health orders, primarily on the basis of parity, non-discrimination, procedural fairness and human rights compliance
• One respondent proposed changes to the wording of the 2026 Proposed Draft Order. Where concerns were raised, these related primarily to implementation, preparing services, resourcing, guidance, training, accessibility, monitoring and wider issues about the effectiveness of recorded matters
• many respondents considered the proposed approach familiar and proportionate because it largely mirrors the existing recorded matters framework for CTOs
• the principal concerns related to implementation rather than the policy intent. These included Tribunal capacity, additional responsible medical officer (RMO) and mental health officer (MHO) workload, Scottish Ministers’ restricted patient processes, Mental Welfare Commission for Scotland (MWC) notification arrangements, service delivery and funding
• respondents repeatedly stressed that guidance, training, standardised forms, accessible information and clear communication will be essential if the rights are to be exercised meaningfully
• independent advocacy and, in some circumstances, legal support were identified as important safeguards, particularly for patients who may face barriers to understanding or participating in Tribunal processes
• a small number of respondents raised questions about how patients without a named person, patients who lack capacity to apply, or those whose named person route is unavailable or unsuitable, could be supported. Some respondents referred to the role of carers, relevant others or listed initiators. These points were generally framed as accessibility and representation issues rather than as specific amendments to the Draft Order
• a recurring concern was that recorded matters may raise expectations where services, accommodation, psychological therapies or community supports are not available. Several respondents warned against creating false hope or symbolic rights without practical delivery
• equality and child rights comments focused on access, communication, translation, Easy Read material, learning disability and neurodevelopmental needs, culturally competent practice, trauma-informed practice and safe family contact
• several respondents recommended monitoring or review after implementation to assess uptake, consistency, timeliness, equality effects and unintended consequences