Adults with Incapacity Reform Expert Working Group minutes: December 2025

Attendees and apologies

• Adrian Ward (AW), Subject Matter Expert
• 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, Subgroup Social Work Scotland 
• Jo Savege (JS), AWI Project Lead, Mental Welfare Commission 
• Fiona Brown (FB), Public Guardian, SCTS
• Jude Halford (JH), Royal College of Psychiatrists, Consultant Liaison Psychiatry, NHS Lothian
• Elaine Longwill (EL), Senior Solicitor, SOLAR
• Scottish Government officials, Adults with Incapacity Team

Apologies

•  Claire Currie, First Legal 
•  Alex Ruck Keene (KC), Barrister, 39 Essex Chambers 
•  Siobhan Wilson, Senior Solicitor, Stirling Council

Items and actions

Welcome and purpose

The Chair welcomed members to the meeting and outlined the plan to proceed with the planned agenda focusing on Deprivation of Liberty.

• minutes of Meeting 3 (20 November) were circulated in advance. No amendments were requested
• minutes of Meeting 3 were approved. The group will return to General Principles at the January meeting

Definition of incapacity

• members raised concerns about the clarity of the statutory definition of incapacity in the Adults with Incapacity (Scotland) Act
• examples were shared of people giving consistent instructions but not recalling prior conversations, creating uncertainty about how memory and decision‑making are assessed. Related mental disorder issues are being considered in mental health law workstreams
• although not currently within the scope of this reform phase, the definition of incapacity should be scheduled for a future, dedicated discussion
• actions: Add ‘Definition of Incapacity’ to a future agenda

Deprivation of liberty

Members discussed approaches to authorising Deprivation of Liberty in Scotland, including estimated volumes, liability protections, lengths of orders and urgent authorisations, with reference to compliance with the European Convention on Human Rights.

Discussion:

• Scotland does not collect national data on Deprivation of Liberty. Proxies (such as guardianship or powers of attorney) are imperfect and comparisons with other jurisdictions have limits
• a significant number of deprivations may be unrecognised at present; implementation of a new scheme could create an initial backlog
• assessment and authorisation are distinct; not all assessments will result in authorisation, and both volumes must be planned for
• the system should be workable for families and practitioners. Where both guardianship and Deprivation of Liberty apply, options to link or conjoin processes should be available to avoid duplication

Consensus:

• Scotland needs a rights‑compliant, practical and properly resourced system
• assessment capacity is the critical constraint; the design of the authorising body is secondary to ensuring a trained and sufficient workforce
• Guardianship alone should not be relied upon to authorise repeated deprivations of liberty over time; timely, explicit authorisation is required

Actions:

• Develop options that (i) plan for a potential backlog, (ii) streamline assessment and authorisation, and (iii) enable conjoined applications where appropriate

Limited liability

Members considered whether liability protections for those providing care or treatment to adults who lack capacity should be reformed.

Discussion:

• current Scottish protections focus on formal decision‑makers acting reasonably, in good faith and in line with statutory principles, with gaps noted for medical practitioners
• other jurisdictions offer broader or tiered protections
• any extension of protections must be matched by clear safeguards: codes of practice, training, oversight, and strong links with Adult Support and Protection

Consensus:
Favour a principles‑based, human‑rights‑aligned approach with proportionate, tiered safeguards, avoiding an overly broad ‘best interests’ test.

Actions:
Reflect these parameters in any liability reform proposals, noting that medical treatment issues will be considered in a separate workstream.

Length of authorisation – review and proportionality

Members considered proportionate durations and review cycles for Deprivation of Liberty authorisations, balancing European Convention on Human Rights compliance with system practicality.

Discussion:

• comparative models use stepped renewals (for example, 12 months, then 24 months, then up to 36 months)
• standard guardianship periods (often three to five years) may be too long without review for deprivations of liberty
• members favoured grading by restrictiveness: more frequent review for higher‑intensity restrictions; lighter‑touch review for low‑intensity measures. Reviews should focus on changes in the person and in restrictions rather than repeating a full assessment each time

Consensus:
Adopt a stepped, proportionate review model (for example, ceilings at 12, 24 and 36 months), ensure access to a court or tribunal, and embed advocacy and representation throughout.

Actions:
Include graded durations and review pathways in the options paper.

Authorising body – independence and feasibility

Options considered included judicial authorisation, a national administrative model, and enhanced roles for existing national bodies.

Discussion:

• the model must ensure independence, consistency, and simple routes to appeal
• national standard‑setting and scrutiny are essential, while avoiding conflicts of interest
• workforce capacity for assessments is the pivotal constraint; authorisation arrangements must be deliverable in practice
• process streamlining should prioritise a single robust assessment that informs both care planning and authorisation, with proportionate quality assurance. Conjoining with guardianship should be possible where both apply, even if resulting in two orders

Consensus:
Any model should avoid conflicts of interest, maintain national consistency, and guarantee straightforward judicial redress.

Actions:
Seek views from the Law Society of Scotland on preferences for authorisation (judicial versus administrative) and perceived risks of concentrating powers locally.

Urgent authorisations

Time did not allow full discussion.

Actions:
Circulate proposals for temporary urgent powers with strict time limits and oversight for written comment.

Decisions and immediate actions

• minutes of meeting 3 approved
• proceed to draft a Deprivation of Liberty options paper (covering authorising body, durations and review, assessment workflow, independence safeguards, and potential backlog)
• schedule a dedicated discussion on the definition of incapacity
• members to continue submitting comments by email for inclusion in modelling work
• note change in local authority legal representation

Close

The Chair thanked members. The team will consolidate comments and develop draft models for consideration in the New Year.