Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026: consultation paper

What are Recorded Matters?

Recorded matters are defined under the 2003 Act as such medical treatment, community care services, relevant services, other treatment, care or service as the Tribunal considers appropriate. The definition is deliberately broad to accommodate a wide range of individual needs, the following are real life recorded matters made in relation to CTOs. They are provided here as examples of recorded matters and are therefore illustrative only:

• The Mental Health Officer (MHO) should liaise with the patient’s named person and … to arrange such assistance as is possible to facilitate the continued visits by family to see the patient. The MHO agreed to do this at the hearing.
• Dr [Dr’s name], [Hospital name and address], the responsible medical officer for [the patient], shall make a referral to Learning Disability Services for a Speech and Language Communication Assessment for [the patient]. The referral shall be made no later than [specified date]. The referral shall be made to [Dr’s name and contact address]. The Learning Disability Service shall prepare and produce the Speech and Language Communication Assessment no later than [specified date]. If the Assessment is not available by that date, Dr [Dr’s Name] shall refer the matter back to the Tribunal.
• Within two months of the date of the tribunal hearing, the MHO, or some other suitably qualified member of social work staff will carry out a Comprehensive Community Care Needs Assessment in respect of [the patient].
• Not later than [specified date], NHS [ ] Health Board shall produce and the patient’s multi-disciplinary team (under the direction of the patient’s RMO) shall procure a forensic learning disability assessment of the patient’s current clinical condition. It shall include assessment of the patient’s suitability for transition to a community care service.
• Not later than [specified date] will provide the patient with staff trained to support the patient’s recreational and social needs for as long as the patient’s detention in hospital continues.
• Not later than [specified date] will support the patient’s discharge from hospital into community accommodation.

Who this consultation is for?

This consultation is relevant to: patients subject to a forensic mental health order and their named persons, carers and families, Responsible Medical Officers (RMOs), Mental Health Officers (MHOs), Health Boards, Integration Authorities, Local Authorities, the Mental Welfare Commission (MWC), the Mental Health Tribunal for Scotland (the Tribunal), advocacy providers, third sector organisations, and academics and practitioners in mental health law and practice.

Why change is needed and how will this be implemented?

The 2003 Act allows the Tribunal to specify recorded matters when it makes or reviews a CTO. These are particular services or treatments that must be delivered. If a recorded matter is not being provided, there is a clear route back to the Tribunal. However, no equivalent recorded‑matters mechanism currently exists for forensic mental health orders. This creates an unjustified difference between individuals subject to civil and forensic detention.

A court has held that the absence of recorded matters for at least a class of CO patients amounts to unjustified discrimination under the European Convention on Human Rights (ECHR). The Scottish Government is therefore acting to remove this incompatibility through a focused remedial change to the 2003 Act.

Scottish Ministers have the power under Section 12 of the Convention Rights (Compliance) (Scotland) Act 2001 to make a “remedial order.” This means they can change Acts of Parliament (primary legislation), or part of it, if it might conflict with human rights under the ECHR. This mechanism is being used to make the necessary changes to extend recorded matters to forensic mental health orders. The changes are expected to come into force on 12 November 2026.

What the proposed changes would do?

An overview of the proposed changes can be found below, with further detail under Annex A:

• Introduce a recorded matters regime for COs, COROs, HDs and TTDs that broadly mirrors the existing CTO framework, including the ability to add, change or remove recorded matters and to act where a recorded matter is not being provided.
• Empower patients subject to a forensic mental health order, and their named person, to apply to the Tribunal to change, remove or add recorded matters and require references to the Tribunal where recorded matters are not being provided.
• Place clear duties on RMOs and MHOs to consider, consult on, and notify proposed changes to recorded matters during reviews and extensions of orders.
• Place duties on Scottish Ministers (reflecting their existing statutory responsibilities to keep COROs, TTDs and HDs under review) to propose, monitor and make reference to the Tribunal when recorded matters are not being delivered.
• Give the Tribunal explicit powers to vary or make interim variations to forensic mental health orders by modifying recorded matters, and to specify recorded matters where appropriate.

What this means in practice for key roles

Patient and/or Named Person:

• Application Rights: Can apply directly to the Tribunal to modify (this includes adding, removing, amending, and requesting for) recorded matters in a patients’ forensic mental health order, in addition to existing rights to seek revocation or variation.

RMO:

• Review Duties: Must assess whether recorded matters in COs, COROs, HDs and TTDs remain appropriate during reviews.
• Proposal Powers: Can propose modifications to recorded matters and must consult with the MHO.
• Notification Duties: Must notify the MHO of proposed changes and ensure the patient is informed.
• Tribunal Referrals: Required to refer cases to the Tribunal if recorded matters are not being provided.
• Reporting Duties: Must report to Scottish Ministers when recommending changes or identifying non-provision of recorded matters.

MHO:

• Consultation Role: Must be consulted by the RMO and Scottish Ministers (in cases regarding Restricted Patients) regarding proposed changes to recorded matters.
• Patient Communication: Required to inform the patient of proposed changes and gather their views.
• Tribunal Support: May be asked by the Tribunal to provide reports and views on non-provision of recorded matters.

Scottish Ministers:

• Referral Duties: Must refer cases to the Tribunal when receiving reports from RMOs on proposed changes or non-provision of recorded matters.
• Consultation Duties: Must consult with relevant parties before applying to the Tribunal to vary orders.
• Application Requirements: Applications to the Tribunal must now include proposed changes to recorded matters and reasons.
• Notification Duties: Must notify all relevant parties when making Tribunal referrals.

The Tribunal:

• Expanded Powers: Can vary orders by modifying recorded matters.
• Can issue interim orders including changes to recorded matters.
• Can act on references regarding non-provision of recorded matters.
• Application Handling: Must consider applications from RMOs, Scottish Ministers, patients, and named persons to modify recorded matters.
• Must specify any modifications made in its decisions.
• Information Requests: Can request reports from MHOs when more information is needed.

Mental Welfare Commission:

• Monitor recorded matters in forensic mental health orders in addition to existing role in relation to civil detention.

Scope and limits of the change

This is a targeted change to rectify an identified human rights compatibility issue. It does not alter the criteria for COs, COROs, HDs or TTDs, nor the public protection tests that apply. It simply ensures that, where appropriate, recorded matters can be set and kept under review for these orders, with clear duties and routes back to the Tribunal if they are not being provided.

A remedial order cannot be used to make changes to the 2003 Act that is not directly addressing the ECHR incompatibility with Article 14 identified by the court in X v Mental Health Tribunal for Scotland [2022] CSOH 78.