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

Engagement and information gathering

Engagement approach

Further planned engagement includes the 60-day consultation. Given the relatively small scope and impact the proposed changes are expected to have on wider health and social care services, a list of stakeholders has been identified which will allow for those with a direct interest in forensic mental health the opportunity to respond. The following stakeholders have been identified: patients and named persons, advocacy organisations, Health Boards, Integration Authorities, Local Authorities, the Tribunal, MWC, professional bodies, forensic mental health services, legal aid and justice partners.

Internal SG engagement/ engagement with wider Public Sector/Public Consultation

Internal SG engagement

Engagement has taken place between the Forensic Mental Health Policy team and the Mental Health Law Team on the proposed Order. There is ongoing engagement with the Scottish Government’s Restricted Patient team that delivers Scottish Ministers functions in relation to Restricted Patients. The team therefore will have additional functions in relation to the including and amending of recorded matters.

As the proposed policy is targeted towards a small group of patients and is expected to impact small group of professionals and services no other internal stakeholders have been consulted as a result of the change.

Wider Public Sector

Discussions with the Tribunal and the MWC took place at the initial start of policy development with policy officials. Engagement with the Tribunal and MWC is ongoing to address outstanding matters and resolve any issues requiring clarification. This engagement will aim to ensure that the relevant parties are fully informed about the proposed changes, understand their organisational implications, and are adequately prepared for implementation.

Scottish Ministers will also engage with Local Authorities and Integration Authorities to identify operational impacts. This includes cases where recorded matters pertaining to individuals need to be shared to inform assessments, for example when patients require assessments for housing or housing support.

One-to-one discussions will be offered to all stakeholders following the laying of the draft Order, and after the consultation, to seek clarification and resolve any issues that may have been identified as a result of the consultation.

Business/Third Sector/Other Stakeholder engagement

Recorded matters refers to a broad category of care and treatment decisions determined by the Tribunal. They impact on patients the most, and therefore advocacy services and patients’ groups will be engaged with to ensure that those with lived experience have their voice heard. These decisions are formally documented and carry significant implications for how care, treatment and services are delivered and monitored. It is anticipated that the introduction and application of recorded matters will require close collaboration with local authorities, health and social care providers, and third-sector organisations.

The impact on business and third sector organisations will vary on a case‑by‑case basis, depending on the recorded matters relevant to each individual. In line with existing arrangements, officials will engage with known providers of support services for Restricted Patients to understand operational implications and requirements. This engagement will help tailor information sharing and assessment of the impact the proposed change will have in business and third sector organisations.

Engagement will focus on understanding and managing the practical and resource impacts that these provisions may have on service delivery and compliance with statutory obligations of NHS Boards to provide care and treatment. Option 2 will be presented to all stakeholders as the option being pursued to remedy the incompatibility. Information and evidence will continue to gathered on the practicalities of the changes to the 2003 Act, and the practical implications this will have on stakeholders.