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.
Next steps and implementation
Recommendations/ preferred options
Scottish Ministers’ preferred option is the broader fix (Option 2) in extending recorded matters to patients subject to COs and, for parity across forensic pathways, to COROs, HDs and TTDs. This achieves greater parity and aligns with ECHR compliance objectives. Scottish Ministers also consider there are compelling reasons to proceed by Remedial Order under section 12 of the Convention Rights (Compliance) (Scotland) Act 2001, which includes the power to amend primary legislation.
Implementation considerations/ plan
The proposed changes are being taken forward under a Remedial Order via the general procedure. The consultation ran from 23 January to 23 March 2026 and responses have now been analysed. The consultation instead identified implementation issues that require attention, including guidance, forms, accessible information, advocacy, Tribunal process and monitoring.
Following consultation, Scottish Ministers have considered the responses received and will refine implementation arrangements as necessary. Further engagement with individuals and organisations may be undertaken where clarification is required on operational issues or implementation planning. This will support readiness for the second laying period and commencement.
The revised Order is intended to be laid again for approval in the Scottish Parliament on 4 September 2026.
Consultation scope and engagement approach
Engagement with the Tribunal and MWC is ongoing. Consultation responses highlighted the need to consider information sharing, assessments, service interfaces, accessibility, advocacy demand and the interaction between recorded matters and wider discharge or support planning.
The Restricted Patient Team will provide specialist oversight and coordination and will be engaged throughout implementation as the team that delivers Ministers’ functions in relation to Restricted Patients, including new functions around the inclusion and amendment of recorded matters.
Implementation support
Primary assurance will sit with Health Boards, Integration Authorities and Local Authorities for services they deliver or commission, with independent scrutiny supported through existing regulators/inspectorates where relevant. Compliance with the changes is expected to begin when the order comes into force on 13 November 2026.
Post-implementation review
Following conclusion of the consultation, a report on the consultation and a list of consultees, where permission to publish has been provided, has been made available. The final BRIA and other impact assessments will be published alongside the laid draft Order.
A post‑implementation review will be conducted within 3–5 years to assess whether objectives of parity, clarity and effective remedy have been met, with consideration of adjustments to guidance or processes where evidence indicates a need. Initial monitoring of the changes will include analysis of data on recorded matters and feedback will be sought from Health Boards, Integration Authorities, Local Authorities, the Tribunal and the MWC on the changes.