Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026: Final Business and Regulatory Impact Assessment

Costs, impacts and benefits

Quantified costs to businesses

The proposed extension of recorded matters from CTOs to COs, COROs, HDs and TTDs is not expected to create significant direct impacts for private business.

Consultation responses, however, indicate that there are likely to be operational and resource implications for public bodies and third sector organisations, particularly in relation to Tribunal activity, professional time, advocacy demand, report preparation, and the capacity of services to deliver recorded matters in practice.

Data provided by the MWC indicates that, as at 1 January 2025, around 635 individuals were subject to the relevant forensic orders. If recorded matters were extended to individuals subject to COs only, as set out under Option 1, this would apply to around 285 individuals.

Data in the MWC's Survey of Recorded Matters published in October 2023 identified that recorded matters were made in around 3% of all CTOs between 2019 and 2022. If a similar pattern were seen for recorded matters in forensic orders, that would equate to around 8 cases per year under option 1.

It is possible that, at least initially, there will be a higher number of cases making use of the new powers. In addition, the complexity and longevity of hospital inpatient stays for forensic patients may mean that recorded matters are used more frequently than in the CTO context. If, for example, applications and referrals including recorded matters were made in 3% and 10% of all forensic orders, that would equate to around 19 to 64 cases per year.

Public Sector

• The Tribunal

As most recorded matters are expected to be considered within existing monitoring and review processes for forensic mental health orders, a substantial increase in Tribunal hearings is not anticipated. Consultation responses nevertheless raised recurring concerns about Tribunal capacity, existing waits in forensic cases and the need for clear processes, forms and scheduling arrangements.

Where there are standalone hearings related solely to recorded matters, the members cost per hearing is £1,800. If 50% of an estimated 64 cases per year were to fall into this category, that would be £57,600, if for 19 cases it would be £17,100.

The Mental Health Tribunal for Scotland also identified an estimated one-off cost of around £10,000 to create additional case management workflows. The impact on the Tribunal is anticipated to be absorbed within existing resources.

• MWC

The MWC may require adjustments to internal processes for monitoring compliance with recorded matters. Consultation responses from the MWC emphasised that any notification requirements should be proportionate, clearly defined and aligned with existing monitoring arrangements. There would also be ongoing administration and practitioner time on recorded matters. If there were 19 cases per year, the estimated cost to the Commission would be around £4,940, rising to £16,640 for 64 cases per year. These changes are expected to be managed within current budgets and staffing levels.

• Forensic Mental Health Inpatient Services

Health Boards will need to ensure that clinical teams are aware of the extended scope of recorded matters and incorporate this into care planning.

Consultation responses highlighted likely impacts on RMOs, wider multidisciplinary teams and specialist services, including psychological therapies, assessments and community facing supports. Given the expected low number of cases, additional costs to Health Boards are expected to be limited.

• Scottish Ministers

Ministers' oversight function of persons subject to a CORO, TTD or HD means that there will be new requirements to consider the need for recorded matters, monitor the existence and delivery of recorded matters, consult relevant parties and make a reference to the Tribunal where recorded matters are not being delivered. At this stage, these functions are expected to be delivered within existing staffing resources and supported by revised operational processes.

• Legal Representatives and Advocacy Services

Recorded matters aim to ensure that individuals receive the care, treatment or services they need. Extending the ability to make recorded matters to forensic orders may therefore create additional expectations for Health Boards, Integration Authorities and Local Authorities where their services are specified.

However, given the likely small number of cases each year, and the fact that a recorded matter will often formalise a need already identified through existing care planning processes, many of the impacts are expected to be absorbed within existing resources.

For advocacy services, the estimated cost per Tribunal involving recorded matters is approximately £540 based on an average of £36 an hour for 15 hours of support and, where the individual is satisfied with the support put in place and the matters agreed by the Tribunal are delivered as intended.

However, where there has been a delay in providing the agreed support, or where the individual is not satisfied with the support put in place, additional follow-up appointments may be required. These are estimated at £52.50 per appointment. In such cases, it is anticipated that around four to five additional appointments may be needed, increasing the overall estimated cost to approximately £787.50.

Based on an estimated 19 to 64 cases per year across Scotland, the lower estimated cost range for advocacy services would be approximately £10,260 to £34,560. Where additional follow-up appointments are required, the estimated cost range would increase to approximately £14,962.50 to £50,400. These estimates represent the anticipated total cost across Scotland as a whole and are not expected to fall on any single advocacy organisation.

It has not been possible to establish an hourly rate for additional appointments across advocacy services. The costs in relation to additional appointments are based on information provided by one advocacy service and should be treated as indicative, rather than representative of all advocacy providers.

• Health Boards, Integration Authorities and Local Authorities

Recorded matters aim to ensure that individuals receive the care, treatment or services they need. Extending the ability to make recorded matters to forensic orders may therefore create additional expectations for Health Boards, Integration Authorities and Local Authorities where their services are specified.

Consultation responses emphasised that impacts may be most acute where recorded matters relate to accommodation, community support, specialist interventions, discharge planning or progression through secure services. The likely small number of cases per year, together with the fact that a recorded matter will often formalise a need that is already known, means that many impacts are anticipated to be absorbed within existing resources.

Third Sector Providers

• Organisations providing support services may be commissioned to provide additional services for individuals subject to a forensic order and thereby deliver and fulfil the recorded matter(s).

Overall, the policy change is targeted at a small cohort of patients and professionals, and therefore the financial impact on organisations is assessed as low. No significant capital expenditure or recruitment is anticipated.

Other impacts

Consultation responses did not identify significant direct impacts on private business. They did, however, identify potential unintended consequences for public and third sector service providers if recorded matters raise expectations that cannot be met. This would be due to existing workforce pressures, accommodation shortages, service availability, advocacy capacity or Tribunal delay. These risks do not outweigh the case for proceeding. They will though be mitigated through guidance and monitoring.

Benefits to business

No benefits to business have been identified from the extension of recorded matters to forensic mental health orders.

Small business impacts

The overall impact of the changes is anticipated to be low and no differential impact on small businesses has been identified.

Workforce and Fair Work

No significant impact on the workforce or the Fair Work First principles have been identified.

Consultation responses identified likely workforce and operational impacts for RMOs, MHOs, Tribunal staff and members, the Scottish Government’s Restricted Patient Team, advocacy organisations and relevant service providers. These impacts are expected to include additional work associated with reviewing recorded matters, preparing reports, attending or supporting Tribunal processes, communicating with patients and named persons, and helping individuals to understand and exercise the new rights.

The changes are therefore expected to generate some additional workload across the relevant professional groups and organisations. However, given the anticipated relatively small number of cases, and the fact that the proposals adapt the existing recorded matters process for CTOs rather than creating an entirely new framework, the overall impact is expected to be manageable within existing systems.

Climate change/Circular Economy

The proposed change is not anticipated to contribute to climate and circular economy targets or climate change.

Competition Assessment

There is not anticipated to be any impact on competition arising from the extension of recorded matters to forensic mental health orders.

Consumer Duty

No impact on consumers has been identified in relation to the proposed change.