Official Report 544KB pdf
Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026 [Draft]
The next item on our agenda is an evidence session with Maree Todd, Minister for Mental Wellbeing, Public Health, Sport, Alcohol and Drugs, on the Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026.
The Minister is joined by the following Scottish Government officials: Joanne Farrow, deputy director, complex care and rights division; and Ivan Boemer, solicitor, mental health, adults with incapacity, palliative care and digital health branch, legal directorate—quite a few titles there.
I welcome you all to the meeting and invite the minister to make a short opening statement.
Thank you for the opportunity to speak to the committee about the order.
The order removes an unjustified difference between the rights of civil and forensic mental health patients. It will allow the Mental Health Tribunal for Scotland to specify, review and modify recorded matters for patients subject to compulsion orders, compulsion orders with restriction orders, hospital directions and transfer-for-treatment directions.
A recorded matter is a treatment, care or a service that the tribunal considers appropriate to specify formally. It may relate to medical treatment, rehabilitation, communication support or discharge planning. That provision is already available to patients who are subject to civil compulsory treatment orders.
In October 2022, the Court of Session held that the absence of an equivalent power for patients subject to a compulsion order amounted to unjustified discrimination under article 14 of the European convention on human rights, and the Scottish Government accepted that legislation was needed to remedy that.
The order extends the remedy across the main relevant forensic orders. We consider that fair, coherent and proportionate, as limiting it to compulsion orders would leave patients on other forensic orders without equivalent access.
The order will integrate recorded matters into existing review and tribunal processes. It will enable patients and named persons to seek modifications, place duties on relevant professionals and Scottish ministers, and provide a route back to the tribunal where a recorded matter is not delivered.
Our consultation received 23 responses, which broadly supported the policy intention. Respondents highlighted the need for clear guidance, accessible information, advocacy and legal support, alongside concerns about capacity and service availability. We are working with delivery partners to address those points.
This is a targeted change. Around 635 people were subject to the relevant forensic orders on 1 January 2025, based on the most recent data available from the Mental Welfare Commission. The estimated number of recorded matter cases is around 19 to 64 each year. The additional activity should be modest and largely accommodated through existing processes.
We acknowledge that progressing the remedy has taken some time. However, the work required careful legal development across several forensic orders and completion of the statutory remedial order process. Subject to Parliament’s approval, the changes will take effect from 13 November 2026.
This is a necessary, rights-based and proportionate reform. It addresses the incompatibility that was identified by the court and supports parity between civil and forensic patients. I invite the committee to recommend that the order be approved.
Does anyone have any questions that they wish to put to the minister?
As everyone appears to be content, I invite the minister to speak to and move the motion.
Motion moved,
That the Health, Care and Sport Committee recommends that the Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026 [draft] be approved.—[Maree Todd]
Motion agreed to.
We will publish a short report to the Parliament setting out our decision. I thank the minister and her officials for attending.
That is the last item on our agenda. The Parliament will be in recess for the next two weeks, and our next meeting will be on Wednesday 28 October.
Meeting closed at 12:05.
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