The Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026 draft proposal
Overview
This page gives public notice of the proposed draft Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026 (“the 2026 Proposed Draft Order”) under section 13(3)(b) of the Convention Rights Compliance (Scotland) Act 2001.
All observations will be considered by Scottish Ministers. The final date for written observations will be 23 March 2026. As soon as practicable after this date, we intend to lay a statement before the Scottish Parliament together with a draft Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026. That statement will summarise all the observations received and will also specify whether or not any modifications have been made to the draft Order and the reasons for those changes.
Purpose of this consultation
This consultation seeks views on a proposed Remedial Order that would amend the Mental Health (Care and Treatment) (Scotland) Act 2003, to extend the legal framework for ‘recorded matters’ across certain forensic mental health orders. In plain terms, ‘recorded matters’ are specific treatments, services or supports that the Mental Health Tribunal for Scotland can specify with the expectation that action is taken to meet the needs identified in the recorded matter(s).
At present, recorded matters are available for Compulsory Treatment Orders (“CTOs”) but not for Compulsion Orders (“COs”) imposed by criminal courts. This difference has been found to be discriminatory. The Scottish Government therefore proposes to remedy this by introducing a parallel recorded‑matters framework for COs, as well as Compulsion Orders with Restriction Orders (“COROs”), Hospital Directions (“HDs”) and Transfer for Treatment Directions (“TTDs”). Collectively these orders and directions are referred to as forensic mental health orders in this consultation.
Recorded matters are defined under the 2003 Act as: “such medical treatment, community care services, relevant services, other treatment, care or service as the Tribunal considers appropriate”. The definition is deliberately broad to accommodate a wide range of individual needs.
Examples of recorded matters are provided for illustrative purposes below:
The Mental Health Officer (MHO) should liaise with the patient’s named person and … to arrange such assistance as is possible to facilitate the continued visits by family to see the patient. The MHO agreed to do this at the hearing.
Dr [Dr’s name], [Hospital name and address], the responsible medical officer for [the patient], shall make a referral to Learning Disability Services for a Speech and Language Communication Assessment for [the patient]. The referral shall be made no later than [specified date]. The referral shall be made to [Dr’s name and contact address]. The Learning Disability Service shall prepare and produce the Speech and Language Communication Assessment no later than [specified date]. If the Assessment is not available by that date, Dr [Dr’s Name] shall refer the matter back to the Tribunal.
Within two months of the date of the tribunal hearing, the MHO, or some other suitably qualified member of social work staff will carry out a Comprehensive Community Care Needs Assessment in respect of [the patient].
Not later than [specified date], NHS [ ] Health Board shall produce and the patient’s multi-disciplinary team (under the direction of the patient’s RMO) shall procure a forensic learning disability assessment of the patient’s current clinical condition. It shall include assessment of the patient’s suitability for transition to a community care service.
Not later than [specified date] will provide the patient with staff trained to support the patient’s recreational and social needs for as long as the patient’s detention in hospital continues.
Not later than [specified date] will support the patient’s discharge from hospital into community accommodation.
Responding to this consultation
The consultation paper contains full background information for this consultation. Please read or refer to it while responding.
An Easy Read consultation paper has also been designed.
In addition, links are provided below to the to the CRWIA, Interim EQIA and Partial BRIA for this consultation:
Child Rights and Wellbeing Impact Assessment (CRWIA)
Interim Equality Impact Assessment (EQIA)
Partial Business and Regulatory Impact Assessment (BRIA)
Consultation questions preview
The consultation questions are included here for your reference. Please click 'Begin consultation' at the bottom of this page to proceed.
Question 1: Do you have any views on the proposed application rights for patients and their named person?
Question 2: Do you have any comments on the proposed duties and powers across all parties involved in reviews, including RMOs, MHOs, Scottish Ministers, and the Tribunal?
Question 3: What, if any, operational challenges do you foresee for services, and how might these be mitigated (e.g. training, guidance, forms)?
Question 4: What impacts - positive or negative - do you anticipate for people with lived experience, families and carers?
Question 5: In relation to the Interim Equality Impact Assessment, please tell us about any potential impacts you think there may be on protected characteristics?
Question 6: In relation to the Child Rights and Wellbeing Impact Assessment, please tell us about any potential impacts you think there may be on children’s wellbeing?
Question 7: In relation to the Partial Business Regulatory Impact Assessment, please tell us about any potential impacts you think there may be to particular businesses or organisations?
Question 8: What do you think about how the changes will be introduced and when they will start?
Question 9: In your view, are there any unintended consequences that could arise as a result of changes to the 2003 Act?
Question 10: Do you have any other comments on the 2026 Proposed Draft Order?
Useful information about responding to this consultation
As you complete your response, each page will provide the option to 'Save and come back later' at the bottom. This means you can save your progress and return to the consultation at any time before it closes. If you don't use this feature and leave the consultation midway through, your response will be lost.
Once you have submitted your response, you can enter your email address to get a pdf copy of your answers sent to you.
On the 'About You' page at the end of this consultation, organisations will have the opportunity to tell us more about their work and/or how their response was informed.
After the consultation has closed there will be a few months delay before any responses are published. This is because we must check any responses to be published abide by our Terms of Use.
All relevant submitted responses will be analysed. This may be carried out by third party organisations who Scottish Government, its executive agencies or non-ministerial offices, contract to do this work. Such data sharing will be governed by appropriate contractual arrangements to keep your data secure.
An analysis report will usually be published some months after the consultation has closed. This report will summarise the findings based on all responses submitted. It will be published on the Scottish Government website and you may be notified about it if you choose to share your email address with us.
You can also join our consultation mailing list where we regularly list newly published analysis reports (as well as new consultations).
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