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

Equality Impact Assessment for The Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026

Title of policy:

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

Summary of aims and desired outcomes of Policy:

The aim of the policy is to remedy discrimination identified by the Courts. This will be done by extending “recorded matters” to patients subject to a forensic mental health order, including a Compulsion Order (CO), Compulsion Order with Restriction Order (CORO), Hospital Direction (HD) and Transfer for Treatment Direction (TTD).

This change is intended to extend the help and enhanced patient care provided to some individuals already through the specific, measurable and time-bound interventions by the Mental Health Tribunal for Scotland. This will allow for clear implementation and accountability for meeting the needs of individuals subject to a forensic mental health order. Recorded matters will also support meaningful participation by the patient and their named person. Recorded matters may lead to faster transfer to rehabilitation or community placements, fuller assessments of an individual’s needs as a whole person and overall improvement in mental health outcomes and quality of life.

Directorate: Mental Health, Social Care and National Care Service Directorate

Division: Complex Care and Rights Division

Team: Forensic Mental Health Unit

Executive summary

This EQIA assesses the impact of extending “recorded matters” provisions to patients on a forensic mental health order. The policy responds to a Court of Session judgment (X v Mental Health Tribunal for Scotland [2022] CSOH 78) that found unjustified discrimination under Article 14 ECHR. The proposed Remedial Order ensures compliance with human rights law and equality of treatment between civil and forensic patients.

Evidence collected suggests positive impacts for the protected characteristics of age and disability, with neutral impacts for other protected characteristics.

The consultation responses did not identify significant equality concerns requiring a change in policy direction. They did, however, highlight a number of implementation issues relevant to equality of access in practice. These included accessible information, Easy Read and plain English materials, communication support, interpretation and translation, advocacy and legal support where needed and monitoring uptake and outcomes by protected characteristic where possible.

These issues are not considered to amount to negative impacts arising from the policy itself, but they are relevant implementation considerations that will inform guidance, communications and monitoring to support equal access to the new rights in practice.

Background

On 19 October 2022, Lord Harrower, sitting in the Outer House of the Court of Session, issued a judgment in X v Mental Health Tribunal for Scotland [2022] CSOH 78. The Court of Session held that the absence of powers for the Mental Health Tribunal for Scotland (“the Tribunal”) to specify recorded matters for patients subject to a CO amounted to unjustified discrimination, contrary to Article 14 (protection from discrimination) of the ECHR.

The Court of Session ruled that the absence of powers for the Tribunal to specify recorded matters for patients subject to a CO was unlawful discrimination. Recorded matters ensure provision of appropriate services where specific needs are identified, reflecting the principle of reciprocity in the Mental Health (Care and Treatment) (Scotland) Act 2003 (‘2003 Act’). The proposed draft order amends Parts 9, 10 and 11 of the 2003 Act to extend recorded matters to COs, COROs, HDs and TTDs.

The proposed changes to the legislation will require the Responsible Medical Officer (RMO) to review recorded matters in COs, COROs, HDs and TTDs to ensure they remain appropriate during reviews of orders. RMOs can propose modifications to recorded matters and must consult with the Mental Health Officer (MHO) and other relevant individuals, notify the MHO of proposed changes, and ensure patients are informed. They are required to refer cases to the Tribunal if recorded matters are not being provided and report to Scottish Ministers when recommending changes or identifying non-provision for patients subject to COROs, HDs, and TTDs.

MHOs must be consulted by RMOs and Scottish Ministers, inform patients of proposed changes, gather their views, and ensure patients understand their rights and have access to independent advocacy and services linked to recorded matters. MHOs may also provide reports to the Tribunal on non-provision issues. Scottish Ministers must refer cases to the Tribunal upon receiving reports from RMOs, consult relevant parties before applying to vary orders, include proposed changes and reasons in applications, and notify all relevant parties when making referrals.

The Tribunal has expanded powers to vary orders by modifying recorded matters, issue interim orders, hear references regarding non-provision, and consider applications from RMOs, Scottish Ministers, patients, and named persons. It must specify any modifications in its decisions and can request reports from MHOs for additional information. Patients and their named persons now have the right to apply directly to the Tribunal to modify recorded matters in their orders, alongside existing rights to seek revocation or variation.

The parliamentary procedure under section 12 of the Convention Rights (Compliance) (Scotland) Act 2001 involved a 60-day consultation, which ran from 23 January to 23 March 2026. There is a second laying process and the changes will come into force in November 2026.

The Scope of the EQIA

Protected characteristics that have been initially assessed are age, disability, sex, race, religion/belief, sexual orientation, gender reassignment, pregnancy/maternity.

This updated EQIA draws on analysis of legislation, published evidence, monitoring reports, the consultation on the proposed Remedial Order, interim impact assessments, the consultation analysis and Scottish Government response. The consultation ran from 23 January to 23 March 2026 and received 23 responses, including 17 from organisations and 6 from individuals.

Key Findings

Age

• Evidence: Forensic mental health inpatients are predominantly aged 18-64. Consultation responses did not identify age-specific adverse impacts, but noted that a small number of children and young people may be directly or indirectly affected, including through family contact and transitions to adult services.
• Eliminating unlawful discrimination, harassment and victimisation: Positive impact. Better specification of rehabilitation and step‑down supports for different age groups. Minimal impact expected on older adults given the small numbers, however specified treatment, care or services will be tailored to the needs of the individual.
• Advancing equality of opportunity: Positive impact. Specifying treatment, care or services can help ensure patients have the opportunity to benefit from rehabilitation with the aim of eventually reintegrating into the wider community and help with employment/volunteering opportunities.
• Promoting good relations: Neutral impact. The aim of recorded matters is to allow the Tribunal the ability to specify care and treatments in a patient’s mental health order. This could benefit individuals and improve their mental and physical wellbeing depending on what care/treatment is specified.

Disability

• Evidence: Most of those affected by this change are expected to meet the Equality Act definition of disability (mental health condition) and include individuals who are neurodivergent. Consultation responses highlighted that equality of rights will not automatically mean equality of access in practice. However, this should not be a barrier to the Order and changes coming into force.
• Eliminating unlawful discrimination, harassment and victimisation: Positive impact. The reason for making the policy is because of a decision made by the Court in 2022 (2022 CSOH 78) regarding a case involving a forensic patient subject to a CO and the lack of provision of “recorded matters”. The provision of “recorded matters” addresses the discrimination and difference in the treatment of patients between those subject to civil and forensic mental health orders. Patients subject to a forensic mental health order will have either a mental illness, learning disability, neurodevelopmental disorder and/or related condition.
• Advancing equality of opportunity: Positive impact. Ensures clarity and focus on the needs of people with mental disorders and subject to a forensic mental health order. This will also include patients that have an intellectual disability.
• Promoting good relations: Neutral impact. Services and treatment can help facilitate and focus on rehabilitative opportunities for those with a mental disorder, or who are neurodivergent.

Sex

• Evidence: Men comprise the majority of the forensic mental health inpatient population and women comprise a small number of patients. The policy is sex-neutral in design but will primarily benefit men because they comprise the majority of forensic inpatients. Consultation responses also highlighted the importance of trauma-informed care, family contact and service adaptations, which can be reflected where relevant through recorded matters.
• Eliminating unlawful discrimination, harassment and victimisation: Neutral impact. Provision of “recorded matters” would be made and provided for both male and female patients subject to forensic mental health orders. It is not anticipated to disproportionately affect women or men.
• Advancing equality of opportunity: Neutral impact. Overarching aim is to ensure “recorded matters” can be provided to patients subject to a forensic order. The proposed draft does not differentiate between men and women – with both sexes being subject to the same provision.
• Promoting good relations: Neutral impact. Relationships could be fostered and enhanced between men and women. This would be dependent on the needs of the individual and the recorded matters specified in their forensic mental health order.

Pregnancy and maternity

• Evidence: Overall, there are very few women in forensic mental health inpatient settings. Consultation responses did not identify specific or adverse impacts in relation to pregnancy or maternity.
• Eliminating unlawful discrimination, harassment and victimisation: Neutral impact. Specified treatment, care or services may involve perinatal care if relevant to the patient.
• Advancing equality of opportunity: Neutral impact. If relevant to the patient and their care needs, recorded matters can specify perinatal mental health pathways. This could be the case if a patient required specific community care.
• Promoting good relations: Neutral impact. Services and treatment can be tailored and specified on the needs of the patient. The number of female patients in the forensic estate is low so this is expected to be neutral.

Gender reassignment

• Evidence: Lack of data on forensic mental health patients that have undergone, or intend to undergo, gender reassignment. Consultation responses did not identify specific or adverse impacts in relation to gender reassignment.
• Eliminating unlawful discrimination, harassment and victimisation: Neutral impact. Although there is no data on the number of individuals who identify as trans in forensic mental health services, we would expect the care and treatment needs of every individual to be person centred and therefore tailored to the patient. If care/treatment was specific to an individual who identified as trans, these needs can be considered and met through the recorded matters framework.
• Advancing equality of opportunity: Neutral impact. As above, the care and treatment needs of trans individuals must be met within forensic mental health services. The extension of recorded matters allows for patients (and their named person) the ability to apply to the Tribunal to have a recorded matter specified in their mental health order.
• Promoting good relations: Neutral impact. Individuals who identify as trans, and are subject to a forensic mental health order, are able to take part in existing care and treatment programmes. The provision of “recorded matters” can specify such services in their order.

Sexual orientation

• Evidence: Lack of data on sexual orientation of patients in forensic mental health services. Consultation responses did not identify specific or adverse impacts in relation to sexual orientation. The policy is intended to apply equally, and recorded matters can include treatment, care or services relevant to the person’s needs.
• Eliminating unlawful discrimination, harassment and victimisation: Neutral impact. The recorded matters framework does not differentiate between patients on the basis of sexual orientation or hinder access to specified therapies and services. There is no difference or demarcation of a patient’s sexual orientation in the proposed change.
• Advancing equality of opportunity: Neutral impact. Allowing for “recorded matters” to be specified in a patient’s forensic mental health order is not expected to impact on advancing equality of opportunity in respect of sexual orientation.
• Promoting good relations: Neutral impact. This is dependent on the type of service/treatment the patient may receive. We would expect services/clinicians to take account of protected characteristics when making decisions on an individual’s care and treatment needs.

Race

• Evidence: We are not aware of existing evidence specifically on the racial breakdown of individuals subject to forensic mental health orders. Consultation responses did not identify a differential adverse impact from the policy itself but did highlight potential barriers where English is not a first language and the importance of interpretation/translation to ensure patients fully understand their rights and the changes.
• Eliminating unlawful discrimination, harassment and victimisation: Neutral impact. The policy is not expected to have an impact on forensic patients based on the grounds of race/heritage. The policy is related to providing services to all patients in forensic mental health services.
• Advancing equality of opportunity: Neutral impact. Policy is in relation to providing all forensic patients, regardless of race or heritage, the ability to have certain treatments/services specified in their mental health order. This is not thought to have a significant impact on advancing equality of opportunity for patients from minority ethnic communities and multiple ethnic heritage.
• Promoting good relations: Neutral impact. Services and treatment specified as recorded matters should be informed by clinical decisions, and the patient’s needs and wishes must be taken into consideration. There is no anticipated impact on the promotion of race relations.

Religion or belief

• Evidence: Lack of data on religion or belief of patients in forensic mental health services. Consultation responses did not identify specific adverse impacts in relation to religion or belief.
• Eliminating unlawful discrimination, harassment and victimisation: Neutral impact. The policy relates to allowing for specific treatments/services to be provided to forensic patients in their forensic mental health order. It is not thought to have a specific or significant impact on patients with faith held beliefs.
• Advancing equality of opportunity: Neutral impact. The policy is thought to be neutral in terms of advancing equality of opportunity. Services/treatment will be utilised by patients from different backgrounds, however what services/treatment would be specified would be specific to the patients’ circumstances and care needs.
• Promoting good relations: Neutral impact. Given the wide range of services/treatments, there is the possibility for individuals of different backgrounds to come together for care. Though this impact is expected to be neutral.

The EQIA has been revised in light of consultation responses. Respondents did not identify significant equality concerns requiring substantial amendment to the policy approach, but they did highlight practical issues that will be considered through implementation planning and future monitoring.

Recommendations and Conclusion

Actions: We will develop accessible guidance and communication materials for patients and named persons. We will consider Easy Read and plain English formats and support communication where needed. We will improve data capture where possible and monitor impacts after commencement.

Monitoring should consider accessibility, consistency of practice, uptake and outcomes by protected characteristic where data is available, and issues relating to the non-delivery of recorded matters.

The policy intention remains to mirror the existing Compulsory Treatment Order (CTO) provisions for recorded matters and extend them to relevant forensic mental health orders, ensuring greater parity and supporting compliance with Convention rights. Consultation responses broadly supported that approach, while also highlighting the importance of implementation, accessibility and monitoring.