Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026: ICIA - screening and decision

Island Communities Impact Assessment (ICIA) – Screening and Decision Record

Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026 – Extending recorded matters to Compulsion Orders (CO), Compulsion Orders with Restriction Orders (CORO), Hospital Directions (HD) and Transfer for Treatment Directions (TTD).

Background:

A CO is made by a criminal court instead of a sentence where someone has a mental disorder and needs compulsory care or treatment in a secure mental health facility. It can authorise detention in hospital or compulsory treatment in the community, lasts 6 months initially, and can be reviewed/extended by the Mental Health Tribunal for Scotland (the Tribunal) if the criteria continue to be met. The tests for compulsory treatment mirror those for a civil CTO - patient has a mental disorder, treatment is available, significant risk if untreated, and necessity of the order. A CORO is a CO with an added Restriction Order for public protection, bringing tighter oversight (such as oversight by Scottish Ministers). It is also made by the courts where the offence, history and risk justify extra protection for the individual and others.

HDs are a hybrid disposal at the point of sentencing. The court imposes a prison sentence and directs the individual to hospital first for compulsory treatment. HDs are formally reviewed and can be revoked, in which case the person is transferred to prison. After treatment, the individual can be transferred to prison to serve the remainder of their sentence or may continue to be treated in hospital until their earliest date of liberation when they are released from custody. A TTD allows for Scottish Ministers to transfer a sentenced prisoner from prison to hospital during their sentence if they develop a mental disorder and require compulsory mental health care and treatment. It has similar safeguards and review routes to a HD, and can also be revoked, in which case the person is transferred back to prison.

Recorded matters are defined under the Mental Health (Care and Treatment) (Scotland) Act 2003 (2003 Act) as: “such medical treatment, community care services, relevant services, other treatment, care or service as the Tribunal considers appropriate.” Recorded matters are wide ranging and can include facilitating visits by family members to patients, care assessments for community rehabilitation, speech and language therapies, support in taking part in recreational therapies and discharge from hospital.

Currently, only patients subject to a CTO (individuals that are detained under civil measures) can have recorded matters specified in their order. Patients on a forensic order and subject to conditions and measures in the 2003 Act and the Criminal Procedure (Scotland) Act 1995, as specified above and referred to as forensic orders, currently do not have this existing legal provision.

The draft SSI relates to a decision made by Lord Harrower, sitting in the Outer House of the Court of Session, in X v Mental Health Tribunal for Scotland [2022] CSOH 78, made on 19 October 2022. The Court held that the Tribunal’s lack of power to specify recorded matters for patients subject to a CO amounted to unjustified discrimination under Article 14 ECHR, given that such powers exist for civil patients under CTOs.

Purpose:

To record consideration under Sections 7, 8 and 13 of the Islands (Scotland) Act 2018, using the Scottish Government ICIA Guidance & Toolkit (Annex B template), and to state whether a full ICIA is required.

Step One – Develop a clear understanding of your objectives:

Objectives of the instrument:

Make a targeted, rights‑compliance amendment so that “recorded matters” can be specified and modified for patients subject to CO, CORO, HD and TTD, aligning forensic orders with civil Compulsory Treatment Order (CTO) practice and addressing the X v MHTS [2022] CSOH 78 incompatibility.

Nature and scope:

Procedural legal change via a Remedial Order under section 12 of the Convention Rights (Compliance) (Scotland) Act 2001 (2001 Act). It does not create, withdraw or re‑allocate services, alter eligibility, or redistribute resources; duties and Tribunal routes apply nationally. This assessment acknowledges that some island-specific delivery challenges may already exist in practice, but the Order does not create or alter those arrangements, duties or entitlements.

Need to consult?

Yes - through the Remedial Order’s general procedure 60‑day consultation, open to island stakeholders (Health Boards, Integration Authorities, Local Authorities and advocacy bodies), with direct notification as set out in the policy note.

Identification of islands/coverage:

Applies uniformly across Scotland, including all island communities. No unique delivery model is introduced by the instrument. In practice, the recorded-matters procedure will operate in the same way for island communities as for other communities. The same statutory tests, Tribunal routes, RMO/MHO roles, advocacy duties and information safeguards will apply nationally. No island-specific delivery model is introduced by the instrument and therefore no impact on island communities is expected.

Intended outcomes and how these could differ in islands:

Outcomes are national parity and clearer safeguards (ability to specify and vary recorded matters). No mechanism that would create a significantly different effect towards island communities has been identified.

Step Two – Gather your data and identify stakeholders:

Available evidence:

National application of the recorded-matters framework under the 2003 Act. The Remedial Order amends parts 9–11 of the 2003 Act so as to mirror CTO arrangements.

The consultation analysis drew on 23 responses and did not identify any island-specific issues or evidence that island communities would experience the proposal differently from other communities in Scotland. Feedback focused instead on general implementation matters such as guidance, training, workforce capacity, Tribunal demand, advocacy and wider service delivery.

Island-specific challenges such as distance and connectivity, that are noted in the ICIA Guidance and Toolkit, do not impact on the procedural legal change in a way that alters service access, eligibility or funding.

Published Scottish Government inpatient census data (from 2025) does not identify a forensic inpatient population located within the island NHS Boards. NHS Western Isles recorded 0 forensic inpatients in the 2025 census, and NHS Orkney and NHS Shetland are not separately listed in the forensic inpatient table.

The data is not a definitive measure of island-resident forensic patients, as regional forensic units and the State Hospital provide services for patients from across Scotland. However, no published evidence has been identified to suggest that island communities would experience a significantly different impact from the proposal.

Stakeholders:

Patients and named persons, Responsible Medical Officers (RMOs) and Mental Health Officers (MHOs), Health Boards (including NHS Orkney, NHS Shetland, NHS Western Isles), Integration Authorities and Local Authorities, Mental Health Tribunal for Scotland (the Tribunal), Mental Welfare Commission, advocacy and justice partners.

Existing design features/mitigations:

Existing Tribunal processes, advocacy duties and professional roles remain unchanged. The Remedial Order adds clarity on references and applications (to the Tribunal) where recorded matters are not provided, which is neutral to positive for remote communities.

Step Three – Consultation:

Approach:

A statutory 60-day public consultation was undertaken under section 13 of the 2001 Act general procedure. The consultation was sent directly to a wide range of stakeholders including patients and named persons, individuals and organisations with an interest in forensic mental health care, criminal justice groups, Integration Authorities, Local Authorities, the Tribunal and the MWC.

Timescales and materials:

The consultation ran from 23 January to 23 March 2026. Most responses were submitted through Citizen Space, and one response was received by email. Consultation material was made accessible via an easy read format. No respondent identified a significantly different impact for island communities.

Step Four – Assessment and screening (significantly different effect test):

Different circumstances/needs/outcomes evidenced?

No. The instrument does not change service provision models or access pathways. It enables a legal parity mechanism applicable across Scotland. The potential island-related factors considered were whether recorded matters would be more difficult to deliver in island areas, whether island patients are more likely to require mainland placements, whether family-contact recorded matters could be more affected by travel costs, whether advocacy access could differ in remote locations, and whether implementation could place additional pressures on small island services.

These matters relate to existing service delivery arrangements rather than a new effect created by this instrument. No evidence from the consultation analysis or policy assessment indicates that the Remedial Order itself would create a significantly different circumstance, need or outcome for island communities. Any such island-specific delivery challenges are therefore acknowledged as part of the existing context, rather than as impacts arising from the Order.

Are different effects likely?

Significantly different effects are not expected. Any interactions (for example RMO or MHO consultation, Tribunal references, advocacy and information provision) already exist and apply nationally to all patients.

The Order does not create new travel requirements, require patients to access different services, or alter responsibility for delivery of recorded matters. Where a patient is placed on the mainland, or where family contact or advocacy is relevant, those practical considerations already arise under existing forensic mental health arrangements and are not changed by extending the recorded-matters mechanism. Consultation feedback did not suggest that island communities would experience the proposal in a significantly different way from mainland communities.

If effects occur, are they significant?

No. Anticipated effects are procedural and uniformly experienced. Potential benefits (clarity, safeguards) are not uniquely island‑specific.

Could effects disadvantage an island community vs mainland/other islands?

No disadvantage identified. No additional travel or access burden is created by the instrument itself.

Screening conclusion:

In the opinion of the Scottish Ministers, and having considered the consultation responses, consultation analysis and the island-specific factors assessed above, the Remedial Order is not likely to have an effect on an island community which is significantly different from its effect on other communities in Scotland, and no impact on island communities is expected. A full ICIA is therefore not required.

Step Six – Publication of explanation (where no full ICIA is prepared):

We will publish this screening record alongside the below explanation, the Remedial Order documentation and impact assessments on gov.scot.

Explanation of reasons for not carrying out a full ICIA:

The Remedial Order is narrowly-scoped with technical amendment to ensure ECHR compliance by extending the “recorded matters” framework to forensic orders that mirror the existing CTO arrangements. It does not introduce, remove or re-allocate services, nor does it alter eligibility or commissioning of services in relation to recorded matters.

The consultation analysis showed broad support for the proposal and did not identify island-specific concerns or significantly different impacts for island communities. Responses instead focused on implementation issues such as guidance, workforce capacity, Tribunal demand, advocacy and service availability.

Having considered the consultation responses, the consultation analysis and the island-specific factors assessed above, Scottish Ministers are satisfied that the instrument will not have a significantly different effect on island communities compared with other communities in Scotland, and no impact on island communities is expected. A full ICIA is therefore not required.

Sign‑off:

Policy lead: Mari Bremner, Forensic Mental Health Service Lead - Mental Health and Social Care & NCS Directorate

Approved by Deputy Director: Joanne Farrow, Deputy Director, Complex Care and Rights Division - Mental Health and Social Care & NCS Directorate

Date: 17 August 2026