Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026: Statement of Reasons
Statement of Reasons on the Order to amend the Mental Health (Care and Treatment) (Scotland) Act 2003, 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.
Convention Rights (Compliance) (Scotland) Act 2001
Statement of Reasons
This Statement of Reasons is provided by the Scottish Ministers in accordance with section 13(3)(a) of the Convention Rights (Compliance) (Scotland) Act 2001 (“the 2001 Act”).
The Scottish Ministers are proposing to make the draft Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026 for the following reasons:
On 19 October 2022, Lord Harrower (sitting in the Outer House of the Court Session) issued a judgment in X v Mental Health Tribunal for Scotland [2022] CSOH 78, following a petition for judicial review. The Petitioner was a patient detained in hospital under a Compulsion Order (COs) in terms of sections 51A and 57A of the Criminal Procedure (Scotland) Act 1995. The Court held that provisions in the Mental Health (Care and Treatment) (Scotland) Act 2003 (2003 Act) were incompatible with Article 14 (protection from discrimination) of the European Convention on Human Rights (ECHR), because civil patients subject to Compulsory Treatment Orders (CTOs) can have 'recorded matters' specified by the Mental Health Tribunal for Scotland (the Tribunal), whereas forensic patients subject to COs cannot.
The incompatibility in the law arises from the absence of provisions for recorded matters in COs. In analysing the judgment, Scottish Ministers considered that the principles and rationale set out in the judgment would likely apply to all COs not just those who had been acquitted on section 51A grounds. Careful consideration was given to other related orders, including Compulsion Orders with Restriction Orders, Hospital Directions and Transfer for Treatment Directions. Following this review, Scottish Ministers determined that there was no reasonable justification for excluding patients subject to these related orders from the recorded matters process.
Scottish Ministers must act compatibly with the requirements of the ECHR and they therefore propose to remedy the interference using the general procedure under section 13 of the 2001 Act.
Scottish Ministers have powers under section 12 of the 2001 Act to make a Remedial Order where legislation is or may be incompatible with Convention Rights. Scottish Ministers consider that there are compelling reasons for making an order under section 12 of the 2001 Act as distinct from taking any other action. Legislative change is required to deal with the incompatibility of the 2003 Act following a court judgment identifying a defect.
The changes being proposed will extend recorded matters provisions to COs and related orders, in order to bring those orders into equivalence with comparable civil orders. Responsible Medical Officers and Mental Health Officers will be required to consider and modify recorded matters during reviews. When proposing variations, Responsible Medical Officers must refer cases to the Tribunal where recorded matters are not being provided. Scottish Ministers must consult and make references to the Tribunal in defined circumstances. Tribunal powers will be extended so that they may vary orders and recorded matters, including interim powers, and allow patients and named persons to apply to modify recorded matters.
Scottish Ministers consider that a Remedial Order under the general procedure is the most appropriate and proportionate means of remedying the legislative defect, ensuring equality of treatment for civil and forensic patients while maintaining safeguards and flexibility within the mental health system. A Remedial Order enables a focused and timely fix without waiting until wider mental health law reform is introduced. It also provides for consultation on the draft instrument and parliamentary scrutiny under the general procedure, and it avoids the risk of calls for broader amendments that could delay progress.
Therefore, the Scottish Ministers consider that there are compelling reasons for making an Order under section 12 of the 2001 Act as distinct from taking any other action.