Updates to the Code of Practice for the Mental Health (Care and Treatment) (Scotland) Act 2003

Overview

Background

The Scottish Government is consulting on proposed updates to parts of volume 1 of the Code of Practice made under section 274 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the Act”), focusing specifically on the use of restraint and seclusion.

This consultation seeks views on proposed guidance that would be included in a new chapter to volume 1 of the  Code of Practice to support safe and rights‑based practice when restraint and seclusion are used. The responses will inform revisions to the Code of Practice, with the aim of strengthening protections for individuals receiving care and treatment, while supporting staff and services to deliver high‑quality care in challenging circumstances. The consultation also seeks views on updates to chapter 14 and a new chapter 17 of the Code, which focus on cross-border transfers and excessive security.

We note that this is a limited update to certain chapters within volume 1 of the Code of Practice, and we anticipate there will be further, more comprehensive revisions to the Code in the future.

The Code of Practice is a published document which provides guidance to practitioners discharging functions under the  Act. The guidance in the Code of Practice applies to any practitioner, such as a doctor, nurse, social worker or mental health officer who is carrying out a function or exercising a duty under the Act in relation to a patient.

Why change is needed around restraint and seclusion

The current Code of Practice was first published in October 2005 and has not been updated since. During this time, both the legislative framework and the wider rights landscape have evolved significantly.

In recent years, the use of restraint and seclusion, particularly with children and young people, has been an increasing area of concern. Although the principles of the  Act are clear that any intervention should involve the minimum restriction on a patient’s freedom that is necessary in the circumstances, we recognise that guidance is required on the use of restraint and seclusion and the proposed update to the Code of Practice aims to provide this. We have drafted a new chapter with a specific focus on restraint and seclusion.

We have heard that guidance around restraint and seclusion is particularly important for people subject to compulsory care and treatment and for children and young people, where the potential impact of restraint and seclusion can be profound. Similarly, we recognise that autistic people and people with learning disabilities are more likely to experience restraint and seclusion when accessing care and treatment under the Act, and the use of these interventions should be carefully considered and monitored to ensure that their use is appropriate. As such, the new chapter includes specific advice on the use of these practices for practitioners providing care and treatment for these groups.

We recognise that nasogastric tube feeding, particularly when conducted under restraint, can be distressing, invasive and traumatic. We have included guidance on best practice for practitioners, to ensure that the use of this intervention is carefully considered and conducted appropriately.

The human rights framework has also developed substantially since 2005. In particular, the enactment of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 places duties on public authorities to not act incompatibly with UNCRC requirements. The new chapter aims to support practitioners and health boards to ensure that the use of restraint and seclusion respects the rights protected under the UNCRC, the European Convention on Human Rights (ECHR), and the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

Following the BBC documentary on Skye House broadcast in 2025, the Minister for Social Care, Mental Wellbeing and Sport asked the Mental Welfare Commission for Scotland and Healthcare Improvement Scotland to undertake a programme of joint visits and inspections across all Child and Adolescent Mental Health Services (CAMHS) inpatient units in Scotland. These visits highlighted both areas of good practice and areas where further clarity, consistency and safeguards are needed, such as the use of restraint and seclusion. The new chapter is informed by the findings and recommendations from these visits.

Scope of the proposed update

This update to the Code of Practice is intentionally focused on specific priority areas. While we recognise that the Code of Practice would benefit from a more comprehensive review, this targeted update reflects the urgency of concerns raised about restraint and seclusion and our commitment to act promptly in this area. We remain committed to updating all three volumes of the Code as part of wider Mental Health Law reform.

The proposed revisions to the Code of Practice include guidance on:

• clear definitions of restraint and seclusion.
• the lawful limits of restraint, including safeguards required to comply with human rights obligations and examples of practices that could amount to unlawful restraint.
• the use of restraint and seclusion with children and young people, grounded in UNCRC principles: use as a last resort, the best interests of the child, the child’s right to be heard, and the provision of age‑appropriate care.
• the use of restraint in relation to people with learning disabilities or autistic people, in line with non‑discrimination principles in the 2003 Act, the UNCRPD and the UNCRC.
• the use of restraint in the specific context of nasogastric tube feeding.

Alongside this, the Mental Welfare Commission for Scotland will undertake national reporting on the use of restraint and seclusion in inpatient mental health units, as recommended by the Scottish Mental Health Law Review. The Commission will work with Health Boards to improve and standardise data collection, enabling national‑level understanding and monitoring of restraint and seclusion.

Other changes to the Code of Practice

Two changes to volume 1 are also being proposed at this time to reflect legislative changes already made through the Mental Health (Scotland) Act 2015 (“the 2015 Act”).

The 2015 Act and its associated regulations made significant amendments to two processes within the 2003 Act: (i) cross-border transfer arrangements, and (ii) the system for applications to the Mental Health Tribunal for Scotland regarding detention in conditions of excessive security. These revised processes have been in place for several years and are now well understood by services and practitioners. The opportunity is now being taken to update volume 1 of the Code of Practice so that it reflects these legislative changes and provides clear guidance on the processes as they currently operate.

The purpose of this consultation is therefore not to introduce new processes, nor to signal any intention to make further changes to legislation or operational systems at this time. Instead, the objective is to ensure that the Code of Practice accurately reflects the law as it stands and supports practitioners, people with lived experience, carers and services through clear, up‑to‑date guidance.

Two chapters have been updated for this purpose:

• Chapter 14: Cross‑Border Transfers – revised to reflect the changes introduced through the 2015 Act, the Mental Health (Cross‑border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Amendment Regulations 2017 and the Mental Health (Cross‑border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2017. These amendments include updated pathways for transfers into and out of Scotland, and procedural requirements for responsible medical officers, mental health officers, hospital managers and the Scottish Ministers.
   
• Chapter 17 (new): Detention in Conditions of Excessive Security – a new chapter providing guidance on the statutory framework for applications to the Tribunal seeking an order declaring that a patient is being detained in conditions of excessive security, as enabled by the 2015 Act and the Mental Health (Detention in Conditions of Excessive Security) (Scotland) Regulations 2015.

The Scottish Government welcomes feedback from individuals, organisations and professionals to ensure that the revised guidance is clear, accurate and useful for all who rely on it.

Read the consultation paper. The consultation paper contains full background information for this consultation. You may find it useful to read or refer to while responding.

An Easy Read Consultation paper has also been designed.

Why your views matter

Who this consultation is for

This consultation will be of interest to practitioners working in mental health settings, people with lived experience of using mental health services, and their families and carers as well as organisations and stakeholders with an interest in mental health law, human rights and service improvement.