The Mental Health (National Secure Adolescent Inpatient Service: Miscellaneous Amendments) (Scotland) Regulations 2023: BRIA

Regulatory and EU Alignment Impacts

Intra-UK Trade

These proposals have no impact on intra-UK trade.

International Trade

These proposals have no impact on international trade and investment.

EU Alignment

These proposals have no impact on the Scottish Government’s policy to maintain alignment with the EU.

Scottish Firms Impact Test

Competition Assessment

In our view, having applied the Competition and Markets Authority competition filter, the proposals will have a limited impact on competition. The 2015 Regulations limit the number or range of suppliers and limit the ability of suppliers to compete for the provision of a supportive report to accompany an application to the Tribunal as the regulations restrict the provision of these reports to approved medical practitioners, defined in section 22 (approved medical practitioners) of the 2003 Act. Approved medical practitioners have to meet certain levels of qualification, training and experience as well as be approved by a health board. Neither the 2015 Regulations, the 2005 Regulations, nor these proposals reduce suppliers’ incentives to compete vigorously.

Test run of business forms

There are existing forms for appeals by patients.

Legal Aid Impact Test

The right of appeal against detention in conditions of excessive security was introduced in the 2003 Act. Adding the NSAIS to the 2015 Regulations does not create a new right but will give effect to the right in the 2003 Act for patients in the NSAIS.

Patients in the NSAIS will have access to legal aid and therefore, the amendments made by the 2023 Regulations will have legal aid implications. These cases are funded by a type of legal aid called “assistance by way of representation” (ABWOR), which is granted by the solicitor without any merits test.

The average cost to the Tribunal of hearing an appeal is £1,941. The Scottish Legal Aid Board has given an estimated cost to the Legal Aid Fund of £1,500 per appeal.

The NSAIS will initially have 4 patients in the service, with the possibility of 12 beds being available in the future. Expenditure from the Legal Aid Fund is demand led so the actual figure will vary from year to year depending on the number and nature of cases.

As above, there would be legal aid costs in relation to those patients in the NSAIS who sought to obtain an independent report in order to make an application but where the report was not supportive.