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.
7. Cross-cutting issues
7.1 Parity, rights and participation
The strongest cross-cutting message was support for parity between civil and forensic patients. Respondents commonly framed the proposal as a necessary response to an identified human rights incompatibility and as a way to strengthen participation and procedural fairness for forensic patients and named persons.
7.2 Whether recorded matters can be delivered and enforced
A second major cross-cutting issue was whether recorded matters can deliver practical change. Respondents supported the rights-based purpose of the Order, but many warned that recorded matters will be limited if services cannot provide the specified treatment, care, support, accommodation or progression opportunities. Some respondents considered this a wider issue with the recorded matters framework, not solely an issue created by the proposed Order.
7.3 Workforce, Tribunal and system capacity
Many respondents anticipated additional work for RMOs, MHOs, Tribunal staff and members, Scottish Ministers’ restricted patient functions, NHS Boards, local authorities and advocacy organisations. The most common concern was not that the tasks were inappropriate, but that they would be added to systems already under pressure.
7.4 Guidance, communication and accessible information
Respondents repeatedly called for clear, practical guidance and communication materials. These should explain what recorded matters are, who can apply, what evidence may assist, how recorded matters can be varied, what happens if a recorded matter is not delivered, and how the framework interacts with risk management, restrictions, family contact and discharge planning.
7.5 Monitoring and review
Several respondents recommended monitoring after implementation to assess whether the framework is operating as intended. Suggested indicators included application numbers, Tribunal timeliness, non-delivery of recorded matters, equality data, use across order types and security levels, effects on advocacy services and variation across NHS Board or local authority areas.