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

6. Analysis by consultation question

Q1. Do you have any views on the proposed application rights for patients and their named person?

Responses: 23

Summary of views

Support for the proposed application rights was widespread. Respondents generally considered that patients subject to forensic mental health orders, and their named persons, should have rights equivalent to those already available in the civil system.

They described the proposal as an important way to address discrimination, support participation and give patients and named persons a route to ask the Tribunal to add, amend, specify or remove recorded matters.

Concerns focused on whether the rights could be exercised meaningfully. Responses highlighted the need for accessible information, independent advocacy, legal support where required, and clear guidance on what recorded matters can and cannot achieve.

Some responses also said the new rights should take account of patients who may not have a named person, or whose circumstances may make it difficult to exercise application rights without additional support.

A small number of respondents asked whether the proposed application rights are sufficient for patients who do not have a named person, where the named person is unavailable or unsuitable, or where the patient lacks capacity to make an application.

Some highlighted the role of unpaid carers and relevant others. They noted that carers may hold important information about the patient’s needs, history and recovery but may not be the named person. One respondent explicitly suggested that listed initiators should be considered as an alternative route to apply in these circumstances. These points were generally presented as issues for accessibility, representation and implementation, rather than as widespread calls to amend the Draft Order.

Illustrative quotations

“There is no reason why ‘forensic patients’ should have less rights than ‘civil patients’.” Ruth Buchanan

“Clear guidance and accessible information for patients and named persons will be essential, alongside appropriate advocacy support, to ensure that the right can be exercised meaningfully.” Mental Welfare Commission for Scotland

“The right to apply is only meaningful if it can be exercised in practice.” AdvoCard

Q2. Do you have any comments on the proposed duties and powers across all parties involved in reviews, including RMOs, MHOs, Scottish Ministers, the Tribunal and the MWC?

Responses: 20

Summary of views

Respondents generally considered the proposed duties and powers for RMOs, MHOs, Scottish Ministers, the Tribunal and the MWC to be appropriate and broadly consistent with the existing CTO framework.

Several responses welcomed the fact that the proposals would embed recorded matters into review processes and create clearer routes for scrutiny where recorded matters are not delivered.

However, a substantial number of responses raised concerns about additional workload. They anticipated more reporting, consultation, communication, Tribunal preparation and attendance for RMOs and MHOs, as well as additional activity for Scottish Ministers and the Tribunal.

Responses asked for clearer guidance on roles, responsibilities, escalation routes, notification arrangements and the boundaries of the MWC’s monitoring role.

Illustrative quotations

“Introducing new routes back to the Tribunal whenever recorded matters are not delivered will increase activity significantly and could exacerbate existing delays unless additional capacity is created.” Social Work Scotland

“It will be important that the respective roles and responsibilities of RMOs, MHOs, Scottish Ministers, the Tribunal and the Mental Welfare Commission for Scotland are clearly defined in guidance, to support consistent understanding and application in practice.” Mental Welfare Commission for Scotland

“Workforce impact assessment: Scottish Government should commission an urgent analysis of the additional MHO capacity required to implement these changes, and work with local authorities, COSLA, and Social Work Scotland to develop a workforce plan” Scottish Association of Social Work

Q3. What, if any, operational challenges do you foresee for services, and how might these be mitigated (e.g. training, guidance, forms)?

Responses: 22

Summary of views

The main operational challenges identified were workforce capacity, Tribunal capacity, resource constraints and consistency of practice. Responses did not generally oppose the proposed change, but many warned that implementation could expose or increase existing pressures.

Suggested mitigations included national guidance, worked examples, standardised forms, templates, process flowcharts, IT system updates, training for relevant professional groups and accessible information for patients, named persons, carers and families.

Respondents emphasised that recorded matters should be specific, realistic, measurable and time-bound. This was seen as particularly important where recorded matters relate to specialist therapies, accommodation, community support, risk-related interventions or progression through secure services.

Several respondents highlighted that without additional resources or clearer delivery mechanisms, recorded matters may identify unmet need without resolving it.

Illustrative quotations

“Whilst the proposed changes are sensible and consistent with human rights and legislative reform, there will be an unavoidable increase in workload pressures across all professional groups involved in decision-making, particularly for MHOs and RMOs.” Highland Council

“National practice guidance and templates for drafting recorded matters (specific, measurable, time-bound), with examples similar to those provided on the consultation page, to standardise expectations and reduce disputes.” Patients’ Advocacy Service

“Forms should be designed with accessibility in mind, and plain-language versions should be made available.” AdvoCard

Q4. What impacts - positive or negative - do you anticipate for people with lived experience, families and carers?

Responses: 22

Summary of views

Responses anticipated a broadly positive effect for people with lived experience, particularly through improved voice, participation, transparency and accountability.

Positive effects identified included clearer care planning, greater recognition of unmet needs, improved routes to raise concerns and greater confidence that treatment, support or rehabilitation needs are being considered.

For families, carers and named persons, respondents identified potential benefits where recorded matters support communication, involvement, family contact, discharge planning or rehabilitation.

The main negative risk identified was unmet expectation. Respondents warned that if recorded matters cannot be delivered because of workforce, accommodation or service constraints, patients and families may experience frustration, reduced trust and increased stress.

Illustrative quotations

“The proposed changes could deliver meaningful positive impacts for people with lived experience, families and carers, particularly in improving transparency and supporting rehabilitation, though much will depend on how the reforms are implemented in practice.” Carers Trust

“Good for rights and voice—especially if people can easily access independent advocacy.” Respondent 8

“A risk exists that formal recording of needs creates expectations that cannot be met due to resource constraints.” Scottish Association of Social Work

Q5. In relation to the Interim Equality Impact Assessment, please tell us about any potential impacts you think there may be on protected characteristics?

Responses: 19

Summary of views

Most respondents considered the equality effect of the proposal to be neutral or positive, because the Order seeks to remove a disparity affecting people subject to forensic mental health orders.

Responses emphasised that equality of legal rights does not automatically mean equality of access. Barriers may arise for people with learning disabilities, neurodevelopmental conditions, cognitive impairment, sensory impairment, communication needs or limited literacy, or for people whose first language is not English.

Several respondents recommended accessible formats, Easy Read information, interpretation and translation, culturally competent practice, trauma-informed approaches and enhanced advocacy support.

A number of respondents recommended monitoring uptake, delivery and outcomes by protected characteristics to identify whether disparities emerge in practice.

Illustrative quotations

“…equality of rights does not automatically guarantee equality of access.” British Association for Behavioural and Cognitive Psychotherapies

“People with learning disabilities, neurodevelopmental conditions, or language/communication needs may require accessible formats and enhanced advocacy support.” Royal College of Psychiatrists in Scotland

“The recorded matters framework should be monitored to ensure equitable access.” Scottish Association of Social Work

Q6. In relation to the Child Rights and Wellbeing Impact Assessment, please tell us about any potential impacts you think there may be on children’s wellbeing?

Responses: 19

Summary of views

Comments on children’s wellbeing focused mainly on indirect effects. Respondents noted that many forensic patients are adults, but children may be affected where a parent or family member is detained.

Responses identified potential positive effects where recorded matters support safe, meaningful and structured family contact, including visits, calls, travel arrangements or family work, provided this is consistent with the child’s best interests and safeguarding requirements.

Several respondents cautioned that recorded matters should not conflict with children’s services, child protection, Children’s Hearings or family court processes. Guidance was requested to ensure appropriate alignment.

A small number of respondents noted that some children and young people may themselves be subject to forensic orders, and that recorded matters could help address developmental, educational, welfare and transition needs.

Illustrative quotations

“Supporting safe, meaningful contact - through visits or facilitated calls - helps maintain family relationships and reduces the potential negative impact on children.” Respondent 8

“Guidance should promote consistency with existing child protection and family contact arrangements, and ensure that best interests are central where recorded matters concern children.” Mental Welfare Commission for Scotland

“The ability for patients and their named person to apply to the Tribunal may also strengthen participation and voice, consistent with the principles of the UN Convention on the Rights of the Child.” Law Society of Scotland

Q7. In relation to the Partial Business Regulatory Impact Assessment, please tell us about any potential impacts you think there may be to particular businesses or organisations?

Responses: 18

Summary of views

Responses generally did not identify significant effects on private businesses. However, many identified operational and cost effects for public bodies and third sector organisations.

The main organisations expected to be affected were NHS Boards, local authorities, Health and Social Care Partnerships, the Tribunal, Scottish Government restricted patient functions, the MWC and independent advocacy organisations.

Likely effects included additional hearings, case management system changes, report preparation, professional attendance, service provision costs, advocacy demand and legal representation or legal aid implications.

Several respondents recommended that the business and regulatory impact assessment should more explicitly quantify and recognise the resource implications for public and third sector delivery partners.

Illustrative quotations

“The principal impact falls on local authority MHO services, which will have significant additional duties.” Scottish Association of Social Work

“Independent Advocacy organisations & legal services: increased demand for representation and support; requires resourcing for timely, rights-compliant processes. We recommend recognising independent advocacy as a critical delivery partner within the BRIA’s implementation costings/assumptions.” Patients’ Advocacy Service

“The additional hearings generated by reviews and references will each carry a cost of £1,800.” Mental Health Tribunal for Scotland

Q8. What do you think about how the changes will be introduced and when they will start?

Responses: 21

Summary of views

Most respondents accepted or supported the proposed implementation date of 12 November 2026, particularly because of the identified human rights incompatibility and the view that the change is overdue.

However, support for the timetable was often conditional on practical readiness. Respondents stressed that guidance, forms, training, IT changes, communications and accessible materials should be in place before commencement.

Some respondents considered the timetable ambitious and recommended readiness assessments, stakeholder testing of guidance and forms, contingency planning, phased commencement or early review after implementation.

Responses also asked for clear communication with patients, named persons, families and carers. This included opportunities to ask questions and receive information in accessible formats.

Illustrative quotations

“The changes should come as soon as possible.” John Ashley Laing Miller

“The proposed commencement date of November 2026 is ambitious given the scale of preparatory work required.” Royal College of Psychiatrists in Scotland

“A clear and accessible communications approach for patients and named persons will also be important, including provision in accessible formats and through advocacy services.” Mental Welfare Commission for Scotland

Q9. In your view, are there any unintended consequences that could arise as a result of changes to the 2003 Act?

Responses: 20

Summary of views

The most frequently raised unintended consequences related to service capacity, Tribunal demand, professional workload and the practical enforceability of recorded matters.

Responses warned that recorded matters could raise expectations that services cannot meet, particularly where community placements, accommodation, specialist therapies, psychology provision or step-down beds are unavailable. Some described this as a risk of false hope.

Other concerns included defensive practice, increased litigation risk, more adversarial relationships, increased administrative burden, possible delays in other cases, and tensions with risk management, public protection or Orders for Lifelong Restriction.

Suggested mitigations included clear guidance, realistic drafting, time-bound recorded matters, transparent reasons where matters cannot be delivered, integrated review cycles and early monitoring of application volumes, timeliness and variation in practice.

Illustrative quotations

“This change could lead to an increase in clinical, social work and MHTS time spent dealing with recorded matters which may have operational and financial implications.” Respondent 2

“A risk of unmet expectations where recorded matters are specified but not implemented in practice, which may have implications for patient rights and, in some cases, give rise to legal challenge.” Mental Welfare Commission for Scotland

“Clear guidance on drafting specific, measurable recorded matters will be essential.” AdvoCard

Q10. Do you have any other comments on the 2026 Proposed Draft Order?

Responses: 20

Summary of views

Additional comments largely reiterated support for the Order as a necessary and overdue rights-based reform.

Responses again emphasised that implementation should be accompanied by guidance, training, accessible information, advocacy support and realistic consideration of workforce and service capacity.

Several respondents used this question to raise wider concerns about the existing recorded matters framework, particularly the limits of enforceability and the need for future reform to ensure recorded matters deliver practical benefits.

Recommendations included co-producing guidance and forms with people with lived experience and practitioners, evaluation within 12 to 24 months, equality monitoring, alignment with wider mental health law reform and ongoing engagement with the sector.

Illustrative quotations

“The changes are welcome and appropriate, but they will only deliver their intended benefit if introduced alongside realistic planning, adequate resourcing, and clear communication.” Social Work Scotland

“To make rights effective, implementation must prioritise clarity, timelines, independent advocacy access and equality monitoring, using the recorded-matters mechanism to turn needs into deliverables with Tribunal oversight” Patients’ Advocacy Service

“We would welcome a formal review of the operation and impact of the new orders 12 to 24 months after they have been implemented.” British Association for Behavioural and Cognitive Psychotherapies