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

Costs, impacts and benefits

Quantified costs to businesses

The proposed extension of recorded matters from CTOs to COs, COROs, HDs, and TTDs is expected to have minimal financial and operational impact on organisations.

Data from the MWC on the extant number of orders, as of 1 January 2025, is that the number of individuals subject to these orders is around 500. If recorded matters were extended to persons subject to COs only (option 1), that would be around 145 individuals.

Data in the MWC’s Survey of Recorded Matters published in October 2023 identifies that recorded matters were made in around 3% of all CTOs between 2019 and 2022. If the same pattern is seen for recorded matters in forensic orders, then that would equate to around 4 (option 1) to 15 (option 2) cases per year.

However, it is likely that initially there will be a higher number of cases making use of the new powers. In addition, the complexity and longevity of hospital inpatient stays for forensic patients may also mean that more use will be made of recorded matters than for CTOs. If, for example, applications and referrals including recorded matters were made in 10% of all forensic orders then that would equate to around 14 – 50 cases.

Public Sector

• The Tribunal

As most recorded matters will be considered as part of existing processes for monitoring and reviewing forensic mental health orders it is not anticipated that there will be a significant increase in Tribunal hearings. Where there are standalone hearings related solely to recorded matters (addition, amendment or non-delivery) the members cost per hearing is £1800. If 50% of the estimated 50 cases per year were to fall into this category that would be £45,000. The Tribunal may experience a small increase in administrative workload to process and record recorded matters. The impact on the Tribunal is anticipated to be absorbed within existing resources.

• MWC

The Commission may require minor adjustments to internal processes for monitoring compliance with recorded matters. There would also be ongoing administration and practitioner time on recorded matters. If there were 25 cases per year the estimated cost to the Commission would be around £6,500, rising to £13,000 for 50 cases per year. These changes are expected to be managed within current budgets and staffing levels.

• Forensic Mental Health Inpatient Services

Health Boards will need to ensure that clinical teams are aware of the extended scope of recorded matters and incorporate this into care planning. Training and awareness sessions may be required, but these are expected to be delivered through existing professional development frameworks. RMOs role in recorded matters for civil orders would be extended and is therefore going to require more of their time. Given the expected low number of cases, additional cost to Health Boards is expected to be negligible.

• Scottish Ministers

Ministers’ oversight function of persons subject to a CORO, TTD or HD means that there will be new requirements to consider the need for recorded matters, monitor the existence and delivery of recorded matters and make reference to the Tribunal where recorded matters are not being delivered. These functions are expected to be delivered within existing staffing and resources.

• Legal Representatives and Advocacy Services

There may be a slight increase in time spent advising patients and preparing cases where recorded matters are relevant. However, this is considered part of routine casework and will not result in significant additional costs.

• Health Boards, Integration Authorities and Local Authorities

Recorded matters aim to ensure that individuals receive the care, treatment or services they need. Extending the ability to make recorded matters to forensic orders should therefore put requirements on those who deliver the care, treatment or service the individual needs. Depending on the recorded matter this may impact Health Boards, Integration Authorities and/or Local Authorities. The likely small number of cases per year, together with the fact that it is likely that the recorded matter will formalise a need that is already known, means that the impact is anticipated to be absorbed within existing resources.

Third Sector Providers

• Organisations providing support services may be commissioned to provide additional services for individuals subject to a forensic order and thereby deliver and fulfil the recorded matter(s).

Overall, the policy change is targeted at a small cohort of patients and professionals, and therefore the financial impact on organisations is assessed as low. No significant capital expenditure or recruitment is anticipated.

Other impacts

The intended legislative change is not thought to have any significant unintended consequences or impact on business and care service providers.

Benefits to business

No benefits to business have been identified from the extension of recorded matters to forensic mental health orders.

Small business impacts

The overall impact of the changes is anticipated to be low and no differential impact on small businesses has been identified.

Workforce and Fair Work

No impact on the workforce or the Fair Work First principles have been identified.

Climate change/Circular Economy

The proposed change is not anticipated to contribute to climate and circular economy targets or climate change.

Competition Assessment

There is not anticipated to be any impact on competition arising from the extension of recorded matters to forensic mental health orders.

Consumer Duty

No impact on consumers has been identified in relation to the proposed change.