Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026: partial business and regulatory impact assessment

Introduction

This Partial BRIA accompanies the consultation on a proposed Remedial Order to address an identified incompatibility issue around the European Convention on Human Rights (“ECHR”) and the Mental Health (Care and Treatment) (Scotland) Act 2003 (“2003 Act”). The issue arises because “recorded matters” can be specified for Compulsory Treatment Orders (“CTOs”) but not for Compulsion Orders (“COs”). The proposal is to extend recorded matters to patients subject to COs and, ensure parity across forensic pathways, to Compulsion Orders with Restriction Orders (“COROs”), Hospital Directions (“HDs”) and Transfer for Treatment Directions (“TTDs”).

Under Part 7 of the 2003 Act, recorded matters currently apply only to patients subject to CTOs. Before applying for a CTO, the Mental Health Officer (“MHO”) must prepare a proposed care plan under section s62(2)). When the MHO applies to the Mental Health Tribunal for Scotland (“the Tribunal”) for a CTO, the proposed care plan is submitted under s63(3)(c)). If the Tribunal grants the CTO, it may also specify recorded matters under s64(4)(a)(ii). In addition, the Tribunal can later amend these matters, and the Responsible Medical Officer (“RMO”) must refer the case back if a such matters are not provided.

Under s64(4)(a)(ii) of the 2003 Act, recorded matters are defined as: any such medical treatment, community care services, relevant services, other treatment, care or service as the Tribunal considers appropriate.

The overall aim of the proposal is to achieve parity by ensuring that the recorded matter process applies to forensic orders and ensure compliance with the ECHR. The judicial review decision found that the inability for the Tribunal to specify a recorded matter for a CO was incompatible with article 14 ECHR and was discriminatory. The Final BRIA will be published alongside the laid draft Order following consultation analysis. The laying date for the revised draft Order is 4 September 2026.

Executive Summary

“Civil” patients are admitted solely on clinical grounds, without criminal justice involvement. “Forensic” patients, by contrast, have been convicted or acquitted on grounds of mental disorder and may be subject to a CO or CORO. Other measures include HDs for offenders requiring hospital treatment and TTDs for prisoners needing care in secure mental health facilities.

The initial policy impact provides for review processes, reporting duties, and Tribunal casework for patients on a forensic order. Stakeholders affected by the proposed legislative change include patients subject to an order specified above, their named person, the Tribunal, the Mental Welfare Commission for Scotland (“MWC”), Scottish Ministers, RMOs and MHOs. Depending on the type of recorded matter, Health Boards, Integration Authorities, Local Authorities and third-sector care providers may also be affected.

A 60-day consultation will be undertaken before finalising the draft Order for Parliamentary approval in September 2026. Scottish Ministers will carefully analyse stakeholder feedback and address any concerns prior to laying the revised Order and the finalised BRIA in September 2026.

Issue and why it needs to be addressed

On 19 October 2022, Lord Harrower, sitting in the Outer House of the Court Session, issued judgment in X v Mental Health Tribunal for Scotland [2022] CSOH 78. 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 of the ECHR, given that such powers exist for civil patients under CTOs. The relevant provisions were declared unlawful and incompatible with Convention rights. Following the ruling, Scottish Ministers concluded that amendments to the 2003 Act were necessary to ensure compliance with Article 14.

Recorded matters provide clarity on specific treatments and services. They help guarantee that patients detained under civil measures receive the specific services they need and this reflects the 2003 Act’s principle of mutual responsibility: if society requires someone to follow a treatment plan, health and social care services have an equal duty to provide safe and appropriate support.

Intended outcomes

The policy objective is to ensure parity between civil and forensic patients by enabling the Tribunal to specify, review, and modify recorded matters for forensic patients. The proposed changes will enable patients, and their named person, the right to apply to the Tribunal for changes to recorded matters. The Tribunal’s powers will be extended to vary orders and directions by modifying recorded matters, with 'modify' defined to include adding, removing, or amending recorded matters.

RMO and MHOs will be required to review and propose modifications to recorded matters. RMOs will have a duty to refer cases to the Tribunal where recorded matters are not provided, and MHOs may be asked by the Tribunal to prepare a report or provide views on the non-provision. The changes also allow Scottish Ministers to make references to the Tribunal and consult relevant parties.

The intention is for the changes to mirror the existing CTO provisions and extend them to relevant forensic orders.

Options

Scottish Ministers have considered 2 options to address the incompatibility identified by the court:

Option 1 – Narrow fix: This would involve amending the 2003 Act to allow “recorded matters” for COs only. This directly addresses the incompatibility identified by the court with limited legislative change, however, it would leave disparity for other forensic measures (COROs, HDs, TTDs), with a risk of future legal challenge due to the lack of provision for recorded matters.

Option 2 – Broader fix: Extend recorded matters to COs and also to COROs, HDs and TTDs. This achieves full parity across forensic pathways, aligns with principles of fairness and consistency and future‑proofs the legislation. It involves modest additional complexity, guidance for practitioners, and a potential increase in Tribunal casework. This is the preferred option.

Preferred Option

Option 2 is the preferred option and would deliver comprehensive parity and fairness for patients subject to a CO, CORO, HD and TTD. The change is likely to increase the Tribunal workload and require additional guidance for RMOs and MHOs. These impacts will be mitigated through updated guidance and standardised forms. Clear communication on the legislative changes will ensure clarity for all stakeholders, particularly patients and named persons.

Sectors affected

The Tribunal is expected to see a modest increase in applications and references related to recorded matters. The MWC will have an enhanced oversight role by monitoring compliance where recorded matters are not delivered. A new duty will also apply to MHOs in which they are required to produce reports and views to Scottish Ministers (in the case of Restricted Patients) and the Tribunal when recorded matters are not being delivered. Scottish Ministers will have new duties to refer cases to the Tribunal and consult on proposed changes to recorded matters. Health Boards, Integration Authorities and Local Authorities may be affected where their services are specified as recorded matters.

Third sector organisations are also likely to be affected, especially advocacy and mental health providers where their services are specified as recorded matters.

Minimal direct impact is expected for the private sector. There could are possible indirect effects for independent providers commissioned for recorded matters.

Enforcement/compliance

Compliance will be embedded in statutory duties for RMOs, MHOs and Scottish Ministers, with oversight by the Tribunal and MWC. No new enforcement bodies or penalties are required. Monitoring will use existing mechanisms, including data and MWC investigations.

Recommendations/implementation plans

The preferred option for consultation is Option 2, as it achieves full parity and future-proofs the legislation. Implementation will include information for patients and their named persons, updated guidance for clinicians and MHOs, communication with the Tribunal and stakeholders, and a short lead-in period for training and forms. The consultation will test whether transitional arrangements are needed.

Evaluation and monitoring of implementation/ review of BRIA

Monitoring will include analysis of data on recorded-matter, and feedback from Health Boards, Integration Authorities, the Tribunal and MWC. A post-implementation review will be conducted within 3–5 years to assess whether objectives of parity, clarity and effective remedy have been met.