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

Background

On 19 October 2022, Lord Harrower’s (sitting in the Outer House of the Court Session) made 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 Responsible Medical Officer (RMO) to review recorded matters in COs, COROs, HDs, and TTDs 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 will involve a 60-day consultation and two-stage laying process, with commencement planned for November 2026.