Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026: child rights and wellbeing impact assessment

Child Rights and Wellbeing Impact Assessment

1. Brief Summary

This impact assessment considers the potential direct or in-direct impacts of extending recorded matters beyond Compulsory Treatment Orders (CTOs) to Compulsion Orders (COs), Compulsion Orders with Restriction Orders (COROs), Hospital Directions (HDs) and Transfer for Treatment Directions (TTDs) on the UNCRC requirements.

By way of background, a CO is made by a criminal court instead of a sentence where someone has a mental disorder and needs compulsory care or treatment in a secure mental health facility. It can authorise detention in hospital or compulsory treatment in the community, lasts 6 months initially, and can be reviewed/extended by the Mental Health Tribunal for Scotland (the Tribunal) if the criteria continue to be met. The tests for compulsory treatment mirror those for a civil CTO - patient has a mental disorder, treatment is available, significant risk if untreated, and necessity of the order. A CORO is a CO with an added Restriction Order for public protection, bringing tighter oversight (such as oversight by Scottish Ministers). It is also made by the courts where the offence, history and risk justify extra protection for the individual and others.

HDs are a hybrid disposal at the point of sentencing. The court imposes a prison sentence and directs the individual to hospital first for compulsory treatment. HDs are formally reviewed and can be revoked, in which case the person is transferred to prison. After treatment, the individual can be transferred to prison to serve the remainder of their sentence or may continue to be treated in hospital until their earliest date of liberation when they are released from custody. A TTD allows for Scottish Ministers to transfer a sentenced prisoner from prison to hospital during their sentence if they develop a mental disorder and require compulsory mental health care and treatment. It has similar safeguards and review routes to a HD, and can also be revoked, in which case the person is transferred back to prison.

Recorded matters are defined under the Mental Health (Care and Treatment) (Scotland) Act 2003 (2003 Act) as: “such medical treatment, community care services, relevant services, other treatment, care or service as the Tribunal considers appropriate.” Recorded matters are wide ranging and can include facilitating visits by family members to patients, care assessments for community rehabilitation, speech and language therapies, support in taking part in recreational therapies and discharge from hospital.

Currently, only patients subject to a CTO (individuals that are detained under civil measures) can have recorded matters specified in their order. Patients on a forensic order and subject to conditions and measures in the 2003 Act and the Criminal Procedure (Scotland) Act 1995, as specified above and referred to as forensic orders, currently do not have this existing legal provision.

Type of proposal:

Scottish Statutory Instrument.

Name the proposal, and describe its overall aims and intended purpose:

The Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026.

The draft SSI relates to a decision made by Lord Harrower, sitting in the Outer House of the Court of Session, in X v Mental Health Tribunal for Scotland [2022] CSOH 78, made on 19 October 2022. The Court held that the Tribunal’s lack of power to specify recorded matters for patients subject to a CO amounted to unjustified discrimination under Article 14 ECHR, given that such powers exist for civil patients under CTOs.

The proposed changes to the 2003 Act will ensure fairness and equality of treatment between civil and forensic patients by enabling the Tribunal to specify, review, and modify recorded matters for individuals subject to forensic orders. This change introduces new duties for Responsible Medical Officers (RMOs), Mental Health Officers (MHOs), and Scottish Ministers to consider recorded matters as part of existing duties to keep orders and directions under review. Patients and their named person have the right to apply to the Tribunal to change a patient’s recorded matters.

Start date of proposal’s development:

July 2023. However, there was a break in development of the SSI due to resourcing and workload. This was picked up by the Forensic Mental Health Policy team in July 2025.

Start date of CRWIA process:

Consideration of child rights began in July 2025 when the Forensic Mental Health Policy team took over and picked up work on this SSI.

2. With reference given to the requirements of the UNCRC (Incorporation) (Scotland) Act 2024, which aspects of the proposal are relevant to/impact upon children’s rights?

The proposal engages Articles 2 (non-discrimination), 3 (best interests of the child), 9 (separation from parents), 12 (respect for and expression of views), 19 (protection from harm), 23 (children with disabilities, whether that be a physical or mental disability), 24 (standard of health and right to treatment and rehabilitation), 25 (review of treatment in care), 37 (c) (deprivation of liberty and the right to be treated with respect) and 39 (recovery from trauma and reintegration).

The proposed changes have the potential to impact children and young people, who are already subject to mental health disposals under the Criminal Procedure (Scotland) Act 1995 and the 2003 Act. The specific proposal is in the changes/amendment/inclusion and monitoring of recorded matters for forensic orders. This includes the escalation of the non-provision of recorded matters to the Tribunal.

The proposed legislative changes have the potential to in-directly impact children whose parent is subject to a forensic mental health order, including potential impacts on contact arrangements, care planning, stability, and wellbeing

3. Please provide a summary of the evidence gathered which will be used to inform your decision-making and the content of the proposal

Evidence from:

• Existing research/reports/policy expertise:
• Scottish Government, Mental Health Inpatient Census 2024 – Children and Young People section. Children and Young People treated in NHS Scotland facilities (additional detail) - Mental Health Inpatient Census 2024 - Parts 1 and 2 - gov.scot
• Mental Welfare Commission for Scotland, Mental Health Act Monitoring Report 2024–25. MHA monitoring report 2024-25
• Scottish Government, Mental Health Inpatient Census 2024 – Patients receiving forensic services. Mental Health Inpatient Census 2024 - Parts 1 and 2 - gov.scot
• Data and information, to gain a better understanding of the nature of recorded matters and to assess the impact in relation to other areas, has also been collected from engagement with the MWC, the Tribunal and analytical colleagues.
• Consultation/feedback from stakeholders
• A consultation will begin, on the draft legislation, on 23 January and last until 23 March 2026. We will seek views from stakeholders on the changes and its intended impact.
• Consultation/feedback directly from children and young people
• As above, we will engage with individuals and organisations with an interest in forensic CAMHS services. We will also engage with advocacy organisations to seek the views of children and young people.

4. Further to the evidence described at ‘3’ have you identified any 'gaps' in evidence which may prevent determination of impact? If yes, please provide an explanation of how they will be addressed

Yes - The current lack of dedicated forensic facilities for children and young people in Scotland is a material factor in assessing the potential impact of the proposed service changes. In this context, Foxgrove, the National Secure Adolescent Inpatient Service (NSAIS), a national medium secure forensic facility for individuals under the age of 18 located in NHS Ayrshire & Arran, is anticipated to open in 2026.

We will engage with the clinical team at Foxgrove to ensure high quality data is captured to support impact assessment of the proposed legislative changes. The CRWIA will be updated prior to the final laying of the instrument in September 2026.

5. Analysis of Evidence

The Mental Health Inpatient Census for 2024 tells us that on 10 April 2024 there were 447 patients receiving forensic mental health services in a forensic inpatient setting. To protect confidentiality, the number of patients in the 2024 Census under 18 years old receiving forensic services is not reported separately.

The Mental Welfare Commission have provided the extant number of patients subject to a forensic order as of 1 January 2025 (the total number of patients as at that date), and this was:

• Compulsion Order (CO) 144
• Compulsion Order and Restriction Order (CORO) 272
• Transfer for Treatment Direction (TTD) 74
• Hospital Direction <=5

In total this is just short of 500 patients subject to forensic mental health orders. However, no breakdown, by age of individual subject to the order is provided.

The Restricted Patient Team in the Scottish Government deliver Ministers’ responsibilities for oversight of restricted patients (individuals subject to a CORO, TTD or HD) and their data indicates there have been 9 individuals under the age of 18 since 1 January 2020. They do not hold data on persons subject to compulsion orders as these orders are not subject to Ministerial oversight.

From the available data, the number of children or young people made subject to a forensic mental health order and therefore affected by the proposed change is likely to be in the low double figures.

The lack of clear data on children in forensic mental health inpatient settings is because currently there are no secure inpatient hospital services for children. Any such children would be transferred to English facilities to receive treatment in an appropriate setting.

Extending recorded matters to forensic orders, therefore is likely to have limited, but positive impact, on the rights and wellbeing of children and young people. Where unusually a child or young person is made subject to a forensic mental health order, the ability to make recorded matters provides clearer entitlements to treatment and support, aligning with UNCRC principles of best interests and participation in their care and treatment. The proposed legislative change may also improve and enhance safeguards for children with complex needs, including neurodevelopmental disorders, and reduce risks of rights breaches in detention settings by ensuring access to care/treatment services is specified in the forensic order.

It is possible that some adult forensic patients have recorded matters specifying arrangements for contact with their children, for example supervised visits, facilitated calls, or family work. When such provisions are implemented (following robust risk assessment and with appropriate safeguarding and multi‑agency support) they can help maintain family relationships and may have a positive impact on the children involved.

6. What changes (if any) have been made to the proposal as a result of this assessment?

No substantive changes have been made to this proposal as a result of this assessment because the proposal will likely have a positive impact on children and young people in Scotland. The overall aim of the policy is to ensure patients subject to a forensic order, regardless of age, are able to have recorded matters specified in their order.

Following the conclusion of the consultation on the draft changes to the 2003 Act, all responses will be taken into consideration and analysed. Scottish Ministers will make changes if they are within scope of the legislation. We anticipate that during the implementation phase of the legislation, child-friendly guidance will be developed as a means to ensuring children, and their carers, are aware of their rights under the proposed legislative change.

7. As a result of the evidence gathered and analysed against all UNCRC requirements, what is the potential overall impact of this proposal on children’s rights?

The initial assessment of data suggests that the overall impact on the extension of recorded matters to patients subject to a forensic order will have a positive, but small, impact on children and young people.

8. If you have identified a positive impact on children’s rights, please describe below how the proposal will protect, respect, and fulfil children’s rights in Scotland.

The ability to specify recorded matters means that the child or young person, their named person, their responsible clinician or Scottish Ministers can apply to the Tribunal for specific treatment or services to be provided.

This can include age-appropriate services or other needs a child or young person may have. Where that treatment or service is not being provided provision is made for that to be reported to the Tribunal. This will contribute to protecting, respecting and fulfilling children’s rights in Scotland.

Specifically, the following UNCRC Articles are engaged in the changes:

Articles 2, 3, 12, 19, 24 and 39 in respect of the patients RMO taking into consideration recorded matters that should be applied. This may allow for children and young people, subject to a forensic order, the ability to access specific treatment that is pertinent to both their physical and mental wellbeing. Recorded matters are broad in the sense that they can focus on a number of different areas. This includes requiring clinicians to provide specific physical and or mental health care to patients, access to rehabilitation activities in preparation for community living and trauma informed psychology programmes.

Articles 12, 25, and 37 (c) in respect of the RMO, prior to considering a change or amendment to a recorded matter, notifying the patients MHO of any proposed change. It will be the duty of the MHO to interview the patient, seek their views on the change and advise the patient of their rights in relation to a proposed change. The RMO must consider the patient’s views before making an application to the Tribunal. The 2003 Act places a duty on RMOs to review the patient’s mental health order or direction, however with the proposed changes, RMOs must now also review recorded matters. Most importantly, patients and their named person will also have the legal right to make an application to the Tribunal to have a recorded matted added or modified.

Article 23 underpins the potential legislative changes. The changes will directly impact individuals with a serious mental health condition and/or an intellectual disability and ensure they can have specific treatment assigned to them through the Tribunal, and in a timely manner if required.

9. If a negative impact has been identified please describe it below. Is there a risk this could potentially amount to an incompatibility?

Not Applicable

Mitigation Record

What options have been considered to modify the proposal in order to mitigate a negative impact or potential incompatibility?

Please summarise mitigation actions taken below

Issue or risk identified and relevant UNCRC requirement

No risk has been identified as a result of the proposed regulations.

Action Taken/ To Be Taken

Not applicable

Date action to be taken or was taken

Not applicable

10. As a result of the evidence gathered and the initial analysis against all wellbeing indicators, will the proposal contribute to the wellbeing of children and young people in Scotland?

Safe: Yes

Healthy: Yes

Achieving: Not Applicable

Nurtured: Not Applicable

Active: Not Applicable

Respected: Yes

Responsible: Not Applicable

Included: Yes

If yes, please provide an explanation below:

The proposal strengthens rights protections for children in forensic mental health settings and supports access to appropriate care and treatment. It also promotes participation in decisions affecting them and their ability to receive specific treatment for their individual needs.

By enabling recorded matters to specify child-appropriate interventions, and requiring consultation with MHOs and advocacy, this ensures there will be Tribunal oversight of care services for “recorded matters”.

11. How will you communicate to children and young people the impact that the proposal will have on their rights?

Scottish Ministers will work with partner agencies to ensure guidance around recorded matters is child-friendly and easy to read. It will use clear language to explain what recorded matters are, how decisions are made, and what this means for contact and care. It will set out children’s rights, based on the UNCRC, including the right to have their views heard (Article 12), to have their best interests put first (Article 3), and to stay connected with family where safe (Article 9) and how to use those rights, including getting advocacy support or making a complaint. The guidance will be available in accessible formats, so children, young people, and carers understand what to expect and how the legislative changes may affect them.

The CRWIA will also be published on the legislation.gov.uk website alongside the SSI so those wishing to access it can do so. The CRWIA has been written in an accessible and child friendly format so those reading it can understand its content and impact as outlined in the assessment.