Adults with Incapacity Reform Expert Working Group minutes: February 2026

Attendees and apologies

• Jennifer Paton (JP), Policy Lead, Law Society of Scotland
• Professor Colin McKay (CM), Professor of Mental Health and Capacity Law, Edinburgh Napier University
•  Ian Waitt (IW), Mental Health Officer Service Manager, Social Work Scotland
• Jo Savege (JS), AWI Project Lead, Mental Welfare Commission for Scotland
• Fiona Brown (FB), Public Guardian, Scottish Courts and Tribunals Service
• Dr Jude Halford (JH), Royal College of Psychiatrists (Scotland)
• Dr Maggie Whyte (MW), Clinical Psychologist, NHS Grampian
• Mark Kubeczka (MK), Legislation Implementation Manager, Scottish Courts and Tribunals Service
• Elaine Longwill (EL) SOLAR representative
• Scottish Government Officials

Apologies

• Adrian Ward (AW), Subject Matter Expert
• Claire Currie (CC), First Legal
• Alex Ruck Keene (KC), Barrister, 39 Essex Chambers
• Siobhan Wilson (SW), SOLAR representative (alternating with EL)

Items and actions

Purpose

The Group considered guardianship policy proposals with a focus on practical reforms rather than legislative drafting. A further session will complete the discussion.

Key points discussed

• Single expert report for guardianship: Broad support to replace the current two medical reports with one high‑quality capacity report from a suitably skilled professional. Members favoured adding clinical psychologists and clinical neuropsychologists to the list of eligible reporters, with proportionate verification of expertise and scope for additional reports in complex cases.

• Mental Health Officer (MHO) report time limit: Support in principle for allowing sheriffs to accept MHO reports submitted beyond 30 days where no material change is confirmed, with expectations set out in guidance.

• Interim guardianship: Agreement in principle to clarify that sheriffs may extend interim orders beyond six months, subject to review to avoid de facto full orders; and to make interim financial guardian remuneration explicit. Members also noted safeguarder timescales/fees and suggested tribunal forum options may improve timeliness.

• Guardianship duration (linked to Deprivation of Liberty): If Deprivation of Liberty is authorised separately, the Group will revisit guardianship durations (currently three years, then five on renewal). This was parked pending the DoL model, with emphasis on case‑specific safeguards.

• Financial abuse: In principle support to address financial abuse in statute; further work will test whether a specific new offence is required, define scope, and ensure alignment with existing criminal law and prosecutorial practice.

• Banking and financial institutions: Members noted Scotland‑wide issues engaging with banks (authority scope, access to information, cross‑border advice) and suggested targeted work to clarify the most appropriate financial orders.

Proposals moving forward

• Develop the single‑report model and guidance (eligibility, expertise verification and multidisciplinary use).

• Add clinical psychologists and clinical neuropsychologists to eligible reporters.

• Provide sheriff discretion (with guidance) to accept out‑of‑time MHO reports where no material change is evidenced.

• Clarify extensions to interim orders and remuneration for interim financial guardians.

• Undertake further legal and policy work on the financial abuse proposal.

Next steps and dates

Related guardianship items will return at the next meeting; technical appendix items can be submitted in writing