Adults with Incapacity Reform Expert Working Group - August 2026

Attendees and apologies

•    Amy Stuart, Chair, Scottish Government
•    Professor Colin McKay, Edinburgh Napier University
•    Dr Maggie Whyte, NHS Grampian; Association of Clinical Psychologists and British Psychological Society
•    Jenifer Paton, Law Society of Scotland
•    Adrian Ward, Subject Matter Expert
•    James Hogan, Senior Professional Social Work Adviser for Mental Health
•    Dr Conor Maguire, Royal College of Physicians of Edinburgh
•    Lorna Elliott, Social Work Scotland, deputising for Ian Waitt
•    Julie White, SOLAR, deputising for Elaine Longwill
•    Debra Calderwood, Office of the Public Guardian, deputising for Fiona Brown
•    Dr Roger Smyth, Royal College of Psychiatrists, deputising for Dr Jude Halford
•    Audrey Graham, Mental Welfare Commission for Scotland
•    Mark Kubeczka (MK), Legislation Implementation Manager, Scottish Courts and Tribunals Service

•    Scottish Government Adults with Incapacity reform team and Secretariat

Apologies

•    Clare Currie
•    Alex Ruck Keene
•    Dr Jude Halford
•    Ian Waitt
•    Elaine Longwill
•    Fiona Brown

Items and actions

Welcome and previous minutes

The Chair welcomed members to the twelfth meeting of the Expert Working Group.

Subject to minor drafting amendments already provided to the Secretariat, the minutes of the previous meeting were agreed.

Deprivation of liberty safeguards

The Group considered how routine care, restrictions of liberty and deprivation of liberty could be addressed within a coherent legal framework.

Members stressed that the framework must be clear, proportionate and workable. It should protect the adult’s rights, avoid unnecessary processes and provide effective routes for review and challenge.

The Group noted the need to align this work with earlier discussions on medical treatment, covert medication, force and restraint. Clear thresholds will be needed to show when a more formal safeguard is required.

Routine care and treatment: statutory limited liability

Members considered a proposal to extend statutory protection to informal carers and frontline staff carrying out routine care and treatment for an adult who lacks capacity, provided they act reasonably and in accordance with the principles of the Adults with Incapacity legislation.

The proposal was intended to provide greater clarity than reliance on the common law and to reduce the need for broad guardianship powers solely to manage day-to-day care.

Members emphasised that any protection must be tightly defined. It must not create a general power to make welfare decisions or authorise highly restrictive practices.

Recording should be proportionate. Existing care records may be sufficient where they explain significant decisions, the reasons for them and how the adult’s wishes were considered. Requirements for families and unpaid carers must be realistic.

Further work is needed on excluded measures, financial matters, delegation, oversight, routes of challenge and the relationship with adult support and protection procedures and medical treatment provisions.

Agreement

The Group supported further development of statutory limited liability for routine care and treatment in principle.

Members agreed that clear limits, guidance, training, oversight and accessible challenge arrangements would be essential.

Restrictions of liberty

The Group considered whether a proportionate statutory safeguard is needed for significant restrictions that do not amount to a deprivation of liberty.

There was support for addressing the potential gap between ordinary care and formal deprivation of liberty authorisation. However, members considered that the proposed scope required further work.

Some measures, particularly restrictions on contact with family or others, may be highly intrusive and engage the right to private and family life. Members did not consider that such measures should be authorised without stronger safeguards.

The effect of a measure will depend on its intensity, duration and impact on the individual. The adult’s wishes, feelings, conduct and experience must be central to the decision.

Members also raised the risk of creating several overlapping processes. The overall framework should be as simple as possible, with clear escalation points and effective access to advocacy, review and appeal.

Agreement

The Group agreed that there may be a safeguarding gap which requires further policy work.

Members agreed that any process must be proportionate and centred on the adult but must not provide a simplified route for authorising highly intrusive measures.

Further analysis is required on the relevant human rights safeguards, advocacy, legal aid and access to court.

Deprivation of liberty authorisation

The Group considered a possible administrative authorisation process, supported by independent representation for the adult and an effective right of access to court.

Members agreed that powers of attorney or guardianship should not, by themselves, authorise a deprivation of liberty. Attorneys and guardians may nevertheless have an important role in representing the adult and participating in the process.

The proposal suggested that local authorities could act as the responsible authorising body, with national oversight by the Mental Welfare Commission for Scotland.

Members raised concerns about independence and conflicts of interest where a local authority also commissions or provides the adult’s care. They also highlighted workforce, funding and practical delivery issues, particularly for smaller authorities.

Possible alternatives included cross-authority or regional arrangements and a stronger oversight role for the Mental Welfare Commission. A tribunal was also discussed, although establishing or expanding a tribunal could delay reform.

There was support for allowing assessments to be completed by a wider range of suitably qualified professionals where they have the relevant competence. The role of the independent person representing the adult also requires further development.

Agreement

The Group agreed that a separate authorisation process is required where an adult is deprived of liberty.

The process must include independent representation, effective review and access to court where required.

The Group did not reach agreement on which body should authorise a deprivation of liberty. Further options will be developed, with particular attention to independence, resources and public confidence.

Actions and next steps

The Scottish Government will refine the proposed framework and develop clear thresholds between routine care, restrictions of liberty and deprivation of liberty.

Further work will define the scope, safeguards, recording requirements and challenge routes for statutory limited liability.

The proposed restriction of liberty safeguards will be reviewed to identify which measures require stronger or judicial authorisation.

Further analysis will consider the requirements of Articles 5 and 8 of the European Convention on Human Rights, including advocacy, legal aid and access to court.

Further options will be developed for the body responsible for deprivation of liberty authorisations and for independent oversight.

Members will provide further views from their organisations. The Secretariat will arrange a follow-up discussion.

Any other business

Members were reminded that the legal aid consultation was open until 13 October 2026. Details of engagement events would be circulated.

The Secretariat would contact members about updating the Expert Working Group membership information on the Scottish Government website.

Next meeting

Thursday 17 September 2026.