Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026: partial business and regulatory impact assessment
Partial business and regulatory impact assessment (BRIA) on the Order to amend the Mental Health (Care and Treatment) (Scotland) Act 2003, to extend the ability to specify "recorded matters" to patients subject to a Compulsion Order, Compulsion Order with Restriction Order, Hospital Direction and Transfer for Treatment Direction.
Next steps and implementation
Recommendations/ preferred options
Scottish Ministers’ preferred option is the broader fix (Option 2) in extending recorded matters to patients subject to COs and, for parity across forensic pathways, to COROs, HDs and TTDs. This achieves greater parity and aligns with ECHR compliance objectives. Scottish Ministers also consider there are compelling reasons to proceed by Remedial Order under section 12 of the Convention Rights (Compliance) (Scotland) Act 2001, which includes the power to amend primary legislation.
Implementation considerations/ plan
The proposed changes will be made under a Remedial Order via the general procedure. The draft changes will be laid in the Scottish Parliament and a 60‑day consultation will be held to gather the views of stakeholders. The consultation period will last from 23 January 2026 until 23 March 2026. Specific stakeholders will be targeted with a particular emphasis on patients and named persons and those a direct interest in forensic mental health care and criminal justice.
Following the consultation, all responses will be carefully analysed and one-to-one discussions will be offered to individuals and organisations who responded to the consultation. Scottish Ministers will then look to make changes to the draft proposal if necessary and refine the draft Order to address stakeholder feedback. This will ensure readiness for implementation of the changes prior to the second laying period.
The revised Order will be subsequently laid again for approval in the Scottish Parliament on 4 September 2026. Public notice of the Order will be published on the Scottish Government website on 23 January 2026. Impact assessments (EQIA, CRWIA, Partial BRIA) will be laid alongside the draft Order, and these will be updated and revised after consultation.
Consultation scope and engagement approach
Engagement with the Tribunal and MWC is ongoing and officials will also engage Local Authorities and Integration Authorities to identify operational impacts, including information‑sharing for assessments such as housing or housing support where relevant.
The Restricted Patients Team will provide specialist oversight and coordination and will be engaged throughout implementation as the team that delivers Ministers’ functions in relation to Restricted Patients, including new functions around the inclusion and amendment of recorded matters.
Implementation support
Primary assurance will sit with Health Boards, Integration Authorities and Local Authorities for services they deliver or commission, with independent scrutiny supported through existing regulators/inspectorates where relevant. Compliance with the changes will begin on 12 November 2026.
Post implementation review
Following conclusion of the consultation, a full list of consultees (where permission to publish is provided) will be made available with the final Order. A report on the consultation will also be published on the Scottish Government website. The Final BRIA, and other impact assessments, will be published alongside the laid draft Order.
A post implementation review will be conducted within 3–5 years to assess whether objectives of parity, clarity and effective remedy have been met, with consideration of adjustments to guidance or processes where evidence indicates a need. Initial monitoring of the changes will include analysis of data on recorded matter and feedback will be sought from Health Boards, Integration Authorities, Local Authorities, the Tribunal and the MWC on the changes.