Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026: Final Business and Regulatory Impact Assessment
Final BRIA on the Order to amend the Mental Health (Care and Treatment) (Scotland) Act 2003, to extend the ability to specify "recorded matters" to patients subject to a Compulsion Order, Compulsion Order with Restriction Order, Hospital Direction and Transfer for Treatment Direction.
Additional implementation considerations
Enforcement/compliance
To support effective implementation and promote compliance, the Scottish Government will issue clear and accessible information, where appropriate, to patients and their named persons, as well as guidance to practitioners in forensic mental health settings. Leaflets have also been devised advising patients of their rights and these will be accessible in an easy read format.
Scottish Ministers will, due to their existing functions under the 2003 Act, monitor the use and delivery of recorded matters at the individual level for persons subject to detention under a CORO, HD or TTD.
The legislative changes extend requirements on RMOs and Scottish Ministers (where relevant) to inform the MWC about recorded matters. As an independent statutory body, the MWC has functions to monitor the application of the 2003 Act and a core mission to safeguard and promote the human rights and welfare of people who are subject to detention for mental health care and treatment.
UK, EU and International Regulatory Alignment and Obligations
Internal Market/Intra-UK Trade
There is no impact on intra-UK regulatory or trade matters arising from this proposed change.
International Trade Implications
There are no international trade implications.
EU Alignment consideration
There is no impact on EU alignment on standards, access to EU market or the UK Internal Market Act 2020 or Common Framework agreements.
Legal Aid
Patients are entitled to receive legal aid when they make an application or require legal representation before the Tribunal in relation to their order or direction. As most recorded matters will be considered part of the existing processes for monitoring and reviewing forensic mental health orders, it is not anticipated that there will be a significant need for additional legal aid.
If the estimate of 19 standalone recorded matter cases is used, and the average mental health legal aid case cost in 2025-26 is £1,177, the additional legal aid cost would be £22,363 per year. If the upper estimate of 64 cases is used, the anticipated legal aid cost would be £75,328 per year. These figures are representative of Scotland as a whole.
Business Forms
Existing CORO, TTD and HD forms to include recorded matters (CTOs and COs share the same forms so only need amendment to remove reference to patients subject to CTO only in relation to recorded matters). Officials are engaging with both the Tribunal and MWC regarding the updating of mental health forms and these will be updated prior to the order coming into force.