Publication - Consultation paper

Consultation on Updates to the Code of Practice for the Mental Health (Care and Treatment) (Scotland) Act 2003

Published: 6 August 2026
From: Director of Mental Health
Directorate: Mental Health Directorate, +1 more … Social Care and National Care Service Development
Topic: Health and social care
ISBN: 9781807752392

The Scottish Government is consulting on proposed updates to parts of volume 1 of the Mental Health Code of Practice, focusing specifically on the use of restraint and seclusion. The consultation will also seek views on updates to chapter 14 and a new chapter 17 of the Code.

Open
84 days to respond
Respond online

Closes: 29 October 2026

Supporting documents

Chapter 17 – Excessive security: detention, rights, positive routine practice and Tribunal applications

Introduction

This new chapter provides an overview of the provisions relating to the ability of patients to make an application to the Tribunal seeking an order declaring that they are being detained in conditions of excessive security, provided for in section 264 to 273, Chapter 3 of Part 17 of the Act together with relevant regulations made under these sections (which are detailed in this chapter). Section 264-267 relate to patients in the State Hospital. Sections 268-271A relate to patients in a hospital other than the State Hospital. Section 272 provides for the enforcement of orders and section 273 provides for interpretation of Chapter 3 of Part 17 of the Act.

In this chapter, ‘must’ is used where the 2003 Act or regulations impose a legal duty. ‘should’ is used to describe the expected practice that Health Boards, hospital managers and professionals are expected to follow to support consistent, rights‑compliant care.

Human rights and patient rights framework

Patients detained in hospital remain rights-holders. Decisions about the level of security and restrictions applied to an individual should be compatible with the European Convention on Human Rights (ECHR) and other relevant rights frameworks. Under the Human Rights Act 1998, public authorities (including Health Boards, hospital managers and the Tribunal) must act compatibly with convention rights under ECHR.

In the context of excessive security, relevant Convention rights that may be engaged include:

Article 5 (right to liberty and security): detention and associated restrictions must be lawful and subject to appropriate review;
Article 3 (prohibition of torture and inhuman or degrading treatment): detention conditions and care must not reach the minimum level of severity that would breach this absolute right;
Article 8 (respect for private and family life): restrictions on privacy, personal autonomy, correspondence and family contact must have a lawful basis and be necessary and proportionate;
Article 14 (non-discrimination in enjoyment of Convention rights): services should ensure that security decisions and access to pathways (including step‑down) do not discriminate and that reasonable adjustments are made where required; and
Article 13 (right to an effective remedy): patients should have access to effective mechanisms to challenge rights‑impacting decisions, including the excessive security application process and other appropriate routes.

In Scotland, the Patient Rights (Scotland) Act 2011 and the Charter of Patient Rights and Responsibilities emphasise a right to receive healthcare that considers a patient’s needs, what would most benefit their health and wellbeing, and supports their participation in decisions, with the information and support needed to do so.

International human rights standards also recognise the right to the enjoyment of the highest attainable standard of physical and mental health and to non‑discriminatory access to health services.

Children and young people

Some patients within the scope of the excessive security regime may be children and young people. In Scotland, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 places duties on public authorities (including the Scottish Ministers and tribunals, when acting within devolved competence) to act compatibly with the UNCRC requirements. This reinforces the expectation that decisions about level of security, progression and delay take full account of children’s rights.

In this context, relevant UNCRC rights may include:

Article 3: in all actions concerning children, the child’s best interests should be a primary consideration;
Article 12: the child has the right to express their views in matters affecting them, and those views should be given due weight;
Article 24: the child has the right to the enjoyment of the highest attainable standard of health and access to healthcare services; and
Article 37: deprivation of liberty must not be unlawful or arbitrary and detention should be used only as a measure of last resort and for the shortest appropriate period of time, with prompt access to legal and other appropriate assistance.

Where a child or young person is detained in a medium secure hospital unit, services should ensure that rights information, care planning, review processes and progression/transfer planning are carried out in a way that is age‑appropriate, accessible and consistent with these duties.

Those discharging functions under the Act are reminded that they must do so having regards to the principles in sections 1 and 2 of the Act.

Excessive security considerations as routine practice

Governance, oversight and proactive management

The right to make applications to the Tribunal to determine whether a person is being detained in conditions of excessive security is an important safeguard, but Health Boards should not rely on applications to identify excessive security. Boards should have internal arrangements to monitor patients’ level of security, identify where a lower level may be appropriate, and take action to progress transfer or step‑down where clinically indicated.

Health Boards and hospital managers should have systems in place to:

routinely review the level of security for patients detained in qualifying units, including at key review points (for example six‑month and annual reviews);
identify patients whose transfer or step‑down is clinically indicated but delayed, and ensure there is a time‑bound action plan with named leads;
escalate barriers to progression through agreed senior clinical and operational routes, including cross‑Board coordination where required; and
provide appropriate oversight and reporting through governance forums, including monitoring of delayed transfers and actions to resolve them.

Roles and responsibilities in practice

The statutory roles described in this chapter should therefore be reflected in day‑to‑day practice. In particular, those involved should contribute to identifying potential excessive security cases, supporting patients understanding of rights, and enabling timely progression to a lower level of security where clinically appropriate.

In practice:

The RMO should ensure that the patient’s current level of security, progression criteria and transfer/step‑down planning are routinely considered and recorded at care planning and review meetings.
The MHO should support the patient (and, where relevant, the named person/guardian/welfare attorney) to understand the right to apply, including signposting advocacy and legal support, and should raise concerns through local governance routes where excessive security may be an issue.
Hospital managers and service leads should ensure staff have access to clear local processes for discussing rights, recording discussions, and escalating concerns about delayed progression or potential excessive security.
The relevant Health Board should ensure there are clear pathways and senior escalation routes for identifying and addressing potential excessive security, including where transfer is delayed by placement availability.

Routine awareness of the right to apply and recording

Health Boards, hospital managers, clinical teams and MHOs should ensure that awareness of the right to make an application to the Tribunal for an order that the individual is being detained in conditions of excessive security is addressed routinely and consistently, not only where an application is being considered. This reduces the risk of inconsistent awareness and supports patients to exercise their rights in an informed way.

Information about the right to apply, what the Tribunal can decide, and the potential outcomes should be discussed and revisited at key points, and the discussion should be recorded in the clinical record and, where appropriate, reflected in the patient’s care plan.

This should include, as a minimum, discussion and recording at:

admission to the State Hospital or a hospital unit specified in the 2015 Regulations and whenever a patient is transferred to a higher level of security;
formal care planning and review points (for example CPA / MDT reviews, six‑month and annual reviews, and significant change reviews);
when concerns are raised by the patient, named person, guardian, welfare attorney, primary carer, nearest relative or advocacy services about the level of security; and
when discharge or step‑down planning is being progressed, including where there are emerging barriers or delays.

Information should be provided in an accessible way, taking account of the patient’s communication needs and any requirement for reasonable adjustments. Where appropriate, services should facilitate access to independent advocacy and ensure patients know how to obtain legal advice.

Managing delay and movement through levels of security

Where transfer to a less restrictive setting is clinically appropriate but delayed, Health Boards should take proactive steps to plan early, manage delays and minimise time spent in higher security than required. This should include active placement identification, timely referrals and assessments, and escalation where obstacles persist.

Where delay occurs, records should demonstrate:

the clinical rationale for the current level of security, based on current assessment rather than historical factors;
the plan for progression and the steps being taken to reduce risk and enable step‑down;
the actions taken to identify and secure an appropriate placement, including dates of referrals and responses; and
the escalation actions taken, and outcomes, where delays are due to capacity or system barriers.

The right to make an excessive security application to the Tribunal

The 2003 Act provides a right for certain persons to make an application to the Tribunal for an order declaring that a patient is being detained in conditions of excessive security. The right is available in respect of patients that meet the criteria as detailed in the 2003 Act and the Mental Health (Detention in Conditions of Excessive Security) (Scotland) Regulations 2015 (“2015 Regulations”), that is persons:

a) who are detained in any of the following (at the time of writing):

the State Hospital;
the Orchard Clinic in the Royal Edinburgh Hospital, Morningside Terrace, Edinburgh;
the Rowanbank Clinic, 133C Balornock Road, Glasgow;
the Medium Secure Service, Rohallion Clinic, Murray Royal Hospital, Muirhall Road, Perth; and
the National Secure Adolescent Inpatient Service, Foxgrove, Ayrshire Central Hospital Campus, Kilwinning Road, Irvine even where the patient is currently residing outside the hospital or hospital unit as a result of their detention being suspended.

b) whose detention in hospital authorised, by either a:

Compulsory Treatment Order;
Compulsion Order (including with a Restriction Order);
Hospital Direction; and
Transfer for Treatment Direction.^[1]

c) whose detention under the order or direction has been authorised for more than 6 months. d) in respect of whom no application for an order declaring that the patient is being detained in conditions of excessive security has already been made:

during the period of 12 months beginning with the day on which the order, or direction, authorising the patient’s detention in hospital is made; or
during any subsequent period of 12 months that begins with, or with an anniversary of, the expiry of the period mentioned above.

e) whose application to the Tribunal is accompanied by a supportive report prepared by an Approved Medical Practitioner. Approved Medical Practitioners are medical practitioners who have such qualifications and experience, and have undertaken such training, as may be specified in directions given by the Scottish Ministers; are approved by the Health Board concerned as having special experience in the diagnosis and treatment of mental disorder and as a consequence are included in a list of approved medical practitioners compiled and maintained by each Health Board and the State Hospitals Board for Scotland.

An application can only be made to the Tribunal if all of the above criteria have been met.

No application can be made during the first period of six months beginning with the date on which the order or direction authorising the patient’s detention was made.

The application may be made by:

the patient;
the patient’s named person;
any guardian or welfare attorney of the patient;
those with the authority to act as a listed initiator under section 257A(3); and
the Mental Welfare Commission

Where the patient’s RMO or MHO is aware that the patient or other relevant person intends to make an application, it would be best practice to discuss the application and its potential outcomes with the patient and other relevant people (such as named person, welfare guardian, welfare attorney, primary carer and nearest relative) before the application is made so as to ensure, as far as possible, that the implications of making the application are known in advance.

The patient and other relevant people should be made aware by the MHO or RMO that the only consideration is the level of security under which the patient is being detained and that, if successful, the application may result in the patient being moved to a hospital or hospital unit with a lower level of security. The specific hospital or hospital unit will not be determined by the Tribunal, patient, named person, welfare guardian, welfare attorney, primary carer or Commission. The specific hospital or hospital unit is for the Health Board and hospital managers to determine. In the case of restricted patients (those subject to a Compulsion Order and Restriction Order, Transfer for Treatment Direction or Hospital Direction), it is for the Health Board to determine with the agreement of the Scottish Ministers.

Whilst the outcome of the application may result in the patient being moved, it may not be to the hospital or hospital unit of their preference. Indeed this may mean that the patient would require to be moved further from their home area to ensure they are in a less secure environment.

Requirement for a supportive Approved Medical Practitioner (AMP) report

The 2015 Regulations introduced a requirement for a report prepared by an AMP to accompany an application to the Tribunal for an order that the patient is being detained in conditions of excessive security. The person making the application can either instruct a solicitor to obtain the report or instruct the report directly. Any application to the tribunal must be accompanied by a supportive report.

Only AMPs can prepare reports to accompany an application to the Tribunal, this can be the patient’s RMO. The Scottish Government publishes a list of AMPs by NHS Board area each month at NHS Scotland - Publications. This list should not be considered exhaustive as it is for each Health Board to keep the list of AMPs in its area.

An excessive security application may only proceed if the report that accompanies it states that, in the practitioner’s opinion, the patient meets the relevant test (that is either the test in s.264 for State Hospital applications, or the test in the 2015 Regulations for all others, and that report sets out the practitioner’s reasons as to why the patient meets the relevant test. The report must be based on the patient’s condition at the time the report is produced. In the case of State Hospital applications, the test relates to the conditions of special security that can be provided only there. In other applications, the test relates to the level of security that is required to manage the risks to safety posed by the patient either to themselves or to others.

If, after considering the matter, the AMP is not of the opinion that the test is met in relation to the patient, then the report should clearly state that as well as the reasons for being of that opinion.

Excessive security

The Tribunal must also consider the same tests as the AMP. Before considering in detail the requirements for patients in either the State Hospital or those in the medium secure hospitals or units specified in the 2015 Regulations, a more general point should be made.

The conditions of special security that can be provided only in the State Hospital should be considered as a package. The same is the case for security at medium secure hospitals or units where the test is designed to establish whether or not the overall level of security at the place in which the patient is detained is greater than is necessary for that particular patient, in line with the section 1 principles. The test does not relate to individual measures of security which the patient may be made subject to from time to time, but which are not an inherent feature of detention in that hospital or hospital unit. There is no option for the Tribunal to make an order to adjust or remove individual measures of security. The only remedy for the patient therefore, if the application is successful, is for the relevant Health Board to identify an alternative hospital or hospital unit in which the patient may be detained, with appropriate levels of security and to which the patient may be moved.

Patients detained in the State Hospital

For patients detained in the State Hospital, an excessive security application must be accompanied by an AMP report which states that in the AMP’s opinion, the patient does not require to be detained under conditions of special security that can be provided only in the State Hospital, and the reasons for being of that opinion.

The Act does not define what is meant by ‘conditions of special security that can be provided only in a state hospital’. Scottish Ministers take a broad, holistic approach and “conditions of special security” refers not just to the individual security measures, but to the self-contained nature of the State Hospital – which is not replicated in medium security – and which is key to its role as a high secure hospital in preventing the need for those detained there to have access to community facilities on a day to day basis.

The AMP should consider whether the patient continues to require detention within the highly secure, controlled and self-contained environment of the State Hospital, or, whether the patient can be suitably managed within a lower secure hospital or hospital unit. Key considerations to be taken into account include evidence regarding the patient’s current mental state compared with their condition at the time of detention, and risk assessment in terms of whether the risks posed have reduced sufficiently to allow the patient to begin having access to the community ((initially on an escorted basis, but with a reasonable prospect of progression to unescorted). If, for example, therapy is outstanding which is relevant to the identification and reduction of risk then it may continue to be appropriate for the patient to remain in the State Hospital until that therapy has been completed. The AMP may wish to refer to relevant guidance regarding admissions to different levels of security to assist with this task.

In making their decision as to whether to provide a supportive report, the AMP should take into account existing risk assessments but also exercise their own independent professional judgment in assessing the risks posed by the patient and whether detention in conditions of special security is necessary to manage those risks.

In forming their opinion, the AMP need not consider the conditions of security in other hospitals or hospital units, or identify a suitable alternative. The AMP is required only to take account of (1) the conditions of special security that can only be provided in the State Hospital; and (2) the risks the patient may pose to themselves or others. Based on this information, the AMP must decide whether in their opinion the patient requires to be detained under conditions of special security that can only be provided in a state hospital.

Should the AMP conclude that the patient is being detained in conditions of excessive security then the report should include the following clear statement:

“I [name], an approved medical practitioner included in the list compiled and maintained by [Health Board] under section 22(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003, am of the opinion that [patient’s name], currently detained in the State Hospital does not require to be detained under conditions of special security that can be provided only in a state hospital.”

The AMP must also provide the reasons for being of this opinion in their report.

Patients detained in a medium secure hospital or hospital unit

For patients detained in a medium secure hospital or hospital unit (as listed under the 2015 Regulations), an excessive security application must be accompanied by a report which states that, in the AMP’s opinion the test specified in the 2015 regulations is met and the reasons for being of that opinion.

The 2015 Regulations provide that the relevant test is met if detention of the patient in the hospital in which the patient is being detained involves the patient being subject to a level of security that is excessive in the patient’s case. This means a level of security that is excessive only when the security at the hospital or hospital unit is greater than is necessary to safely manage the risk that the patient may pose to their own safety or the safety of any other person (which may include other patients, staff, visitors and to the general public). The risks which the individual patient may pose may change over time, and in different contexts. In considering the risks, the AMP should take into account existing risk assessment but also exercise their own independent professional judgment in assessing the risks posed by the patient.

The AMP and the Tribunal should consider the level of security of the hospital or hospital unit in which the patient is being detained. This refers to the level of security which detention in the hospital or hospital unit necessarily involves, in other words the level of security is an integral part of detention there. It is not relevant for the purposes of the test to consider the appropriateness of individual measures that may (but need not be) applied to the patient at any given time, only those measures which are inherent in or are unavoidably applied by virtue of being detained there.

Again, as with patients in the State Hospital, there is no requirement to consider the level of security in other hospitals or hospital units. The AMP is not asked to identify a suitable alternative hospital or hospital unit and is therefore only required to take account of the measures of security which are inherent in or are necessarily applied by virtue of being in the patient’s current hospital or hospital unit.

The AMP and the Tribunal must also consider the risks that the patient may pose to the patient’s own safety and the safety of any other person. This includes other patients, staff, visitors and the general public. The risks the patient may pose will change over time, in different contexts (that is in medium security, in low security, in the community with 2, 1 or no escorts) and will also be different for each patient.

In considering the risks, the AMP should take into account existing risk assessments but should exercise their own independent judgement in assessing the risks posed by the patient and whether detention in medium security is necessary to manage those risks.

The AMP in considering whether a patient in a medium secure unit is being detained in conditions of excessive security may not take into account any other factors. The only consideration is whether the security at the hospital or hospital unit in which the patient is detained is greater than is necessary to manage the risks the patient may pose.

In summary, the AMP is required to take account of (1) the measures of security which are inherent in, or necessarily applied, by virtue of the patient’s current detention in the relevant medium secure hospital or hospital unit; and (2) the risk the patient may pose to their own safety and that of others. The AMP must decide whether, in their opinion, the test provided in the 2015 Regulations is met in relation to the patient.

Should the AMP conclude that the patient is being detained in conditions of excessive security then the report should include the following clear statement:

“I [name], an approved medical practitioner included in the list compiled and maintained by [Health Board] under section 22(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003, am of the opinion that [patient’s name] in [hospital or hospital unit] involves the patient being subject to a level of security that is excessive in the patient’s case. The security provided at [hospital or hospital unit] is greater than that which is necessary to manage the risk that [patient’s name] may pose to the patient’s own safety; and the safety of any other person.”

The AMP must also provide the reasons for being of this opinion in their report.

The Tribunal and outcomes of an application

On receipt of an application, the Tribunal will check that the AMP report has been included, that the report provides the relevant statement (as set out in this chapter) and reasons for supporting the patient’s application, and that the practitioner meets the requirements of section 22(1) in terms of being an AMP. At this stage there will be no substantive assessment of the content of the report by Tribunal administrative staff, as that will be a matter for the Tribunal to consider, alongside all other evidence, before determining the application.

A hearing must be held allowing the patient and any named person, guardian or welfare attorney, curator ad litem and any other person appearing to the Tribunal to have an interest in the application the opportunity to make representations. A listed initiator may make the application on behalf of the patient. The relevant health board, RMO, hospital managers, MHO and the Commission also have the opportunity of making representations to the Tribunal. Where the relevant patient is a restricted patient, the Scottish Ministers also have the opportunity of making representations.

The Tribunal may only make an order declaring that a patient is being detained in conditions of excessive security if it is satisfied that the patient:

if detained in the State Hospital, does not require to be detained under conditions of special security that can be provided only in a State Hospital; or,
if detained in a medium secure hospital or hospital unit, that the test specified in the 2015 Regulations is met in relation to that patient (as discussed in this chapter).

The Tribunal is not bound by the supporting AMP report. Even where the Tribunal is of the same view as the AMP and is satisfied that a patient is being detained in conditions of excessive security it retains the discretion not to make an order. The Tribunal retains the power to consider other factors in all cases in deciding whether or not to make an order but must always have regard to the principles in sections 1 and 2 of the 2003 Act. A Tribunal panel has to take into account the particular facts and circumstances of individual cases and weigh the evidence of risk as well as applying the principles of the 2003 Act.

Health Boards

The relevant Health Board will receive notice of the application and may make representations to the Tribunal.

Where the Tribunal makes an order declaring that a patient is being detained in conditions of excessive security, the order will specify a period not exceeding 3 months from the date the order is made during which the relevant Health Board and (if they are not the Board) hospital managers must identify a hospital or hospital unit in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient’s case and in which accommodation is available to the patient. Where the patient is a restricted patient, the agreement of the Scottish Ministers is required in deciding which hospital or hospital unit the patient is transferred to.

Under the Mental Health (Relevant Health Board for Patients Detained in Conditions of Excessive Security) (Scotland) Regulations 2006, the relevant Health Boards means:

(a) in relation to a patient who resided ordinarily in Scotland immediately before the making of the compulsory treatment order, compulsion order, hospital direction or transfer for treatment direction by which their detention in hospital is authorised, the Health Board which, immediately before that order or, as the case may be, direction was made, would have had the function in accordance with article 2(1)(a) of the Functions of Health Boards (Scotland) Order 1991 to provide for the health care of the patient; and

(b) in relation to a patient who did not reside ordinarily in Scotland immediately before the making of such an order or, as the case may be, direction by which their detention in hospital is authorised, the Health Board for the area in which the hospital where the patient is detained is situated.

A hospital with conditions that would not involve the patient being subject to a level of security that is excessive in the patient’s case must be a hospital or hospital unit with a level of security that would not be excessive in the patient’s case. For patients to be transferred from the State Hospital, appropriate conditions may be in a medium or low secure hospital or hospital units. A hospital unit is a part of a hospital which is treated as a separate unit, for example a medium secure unit within the grounds of a hospital, and does not usually extend to individual wards. Applications cannot therefore be made seeking a move from one ward within a medium secure unit to another ward within the same medium secure unit.

Having identified an appropriate hospital or hospital unit, the Health Board must, as soon as practicable, give notice of the hospital or hospital unit that has been identified to the managers of the hospital in which the patient is currently being detained. Once the transfer is completed, the Health Board should also give notice of this to the Tribunal.

Where the Tribunal has not been notified of the transfer of the patient within the period specified in the order, a further Tribunal hearing will be held. The same parties who were entitled to give representations in respect of the original order should be given the opportunity to give representations/lead evidence again. Should the Tribunal remain satisfied that the patient is being detained in conditions of excessive security it will make a further order specifying a period of 28 days, or such longer period not exceeding 3 months as the Tribunal thinks fit , within which the Health Board must identify a hospital or hospital unit in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient’s case and in which accommodation is available to the patient.

If the Health Board has not, within the period set, identified an appropriate hospital to which the patient could be transferred it is open to the Mental Welfare Commission for Scotland to seek the intervention of the Court of Session to require performance of the duties imposed by the order. The patient may also wish to take their own legal advice.

The role of the Scottish Ministers in the case of restricted patients

An additional requirement applies when an order is made in respect of a restricted patient (a patient subject to a Compulsion Order and Restriction Order, Transfer for Treatment Direction or Hospital Direction). In this instance, the Scottish Ministers also receive notice of the application and may also make representations to the Tribunal.

Should an order be made by the Tribunal in respect of a restricted patient, the Scottish Ministers must separately consent to the hospital or hospital unit identified by the Health Board before the transfer may take place.

Recall of the Tribunal’s order

A Tribunal order declaring that a patient is being detained in conditions of excessive security can be recalled, on application, where it is shown that the basis for the order no longer applies, or where other relevant circumstances justify doing so. For patients detained in the State Hospital, recall is required where the patient is assessed as needing the special conditions of security that is only available there; otherwise, recall may occur on any other grounds. For patients detained in a qualifying medium secure setting, recall is required where the test for “excessive security” is no longer met (i.e., the level of security is no longer greater than necessary to safely manage the relevant risks); again, recall may also occur on any other grounds. Where an order is recalled, the associated duties on the responsible Health Board that arose because of the order fall away.

Where an application is made for the order to be recalled, the Tribunal must hold a hearing and allow all relevant persons specified in paragraph 42 above to attend and provide evidence.^[2]

Legislation

A copy of the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Code of Practice volume 1 can be found at:

Mental Health (Care and Treatment) (Scotland) Act 2003

Mental Health (care and treatment)(Scotland) Act 2003: Code of Practice Volume 1

Consultation questions

Do you agree with the general principles and the purpose of restraint and seclusion, as described in the draft update? (Yes or No)

To what extent do you agree or disagree? (Strongly Agree, Agree, Disagree, Strongly Disagree)