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

Key Findings

Age

• Evidence: Forensic mental health inpatients are predominantly aged 18-64.
• 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 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 benefit individuals and improve their mental health.

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.
• 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.

Sex

• Evidence: Men comprise most of the forensic mental health inpatient population. Women comprise a small number of patients. The overall policy is sex‑neutral in design but will primarily benefit men, as they comprise most forensic inpatients.
• Eliminating unlawful discrimination, harassment and victimisation: neutral impact. Provision of “recorded matters” would be made and provided for both male and female patients in forensic mental health services.
• 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.
• 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: positive impact. If relevant to the patient and their care needs, recorded matters can specify perinatal mental health pathways if relevant to the patients care needs. 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.
• Eliminating unlawful discrimination, harassment and victimisation: positive 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 an individual to be person centred and therefore tailored to the patient. We would expect these needs to be met through robust care-planning and through the provision of services/treatment.
• Advancing equality of opportunity: neutral impact. As above, the care and treatment needs of trans individuals must be met within forensic mental health services
• Promoting good relations: neutral impact. Trans patients (subject to a forensic mental health order) are able to take part in existing care and treatment programmes. The provision of “recorded matters” will specify such services in their order.

Sexual orientation

• Evidence: Lack of data on sexual orientation of patients in forensic mental health services.
• Eliminating unlawful discrimination, harassment and victimisation: positive impact. Equal access to specified therapies and service will be for all patients subject to a forensic mental health order. 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.
• 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. The policy is related to providing services to all patients in forensic mental health services.
• Advancing equality of opportunity: positive impact. Policy is to provide all forensic mental health patients, regardless of race, 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 in a “recorded matters” should be informed by clinical decisions and the patients’ needs/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.
• 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 though to have a specific or significant impact on patients with faith held beliefs.
• Advancing equality of opportunity: positive impact. Services/treatment will be utilised by patients from different backgrounds, however what services/treatment would be specified would be specific to the patients’ circumstances.
• 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.

Consultation on the draft Remedial Order will allow stakeholder engagement on the interim EQIA and it will be revised in light of findings from the consultation.