Adults with Incapacity Reform Expert Working Group minutes-July 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
•    Audrey Graham (AG), Social Work Officer, Mental Welfare Commission for Scotland
•    Dr Jude Halford (JH), Royal College of Psychiatrists in 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
•    Debra Calderwood (DC), Office of the Public Guardian

Scottish Government Officials

Apologies

•    Adrian Ward (AW), Subject Matter Expert
•    Alex Ruck Keene KC (ARK), Barrister, 39 Essex Chambers
•    Fiona Brown (FB), Office of the Public Guardian
•    Claire Currie (CC), First Legal
 

Items and actions

Welcome and aim

The Chair welcomed members to the eleventh meeting of the Expert Working Group. James Hogan joined the Group as Professional Social Work Adviser for Mental Health within the National Social Work Agency. Audrey Graham was welcomed as the Mental Welfare Commission for Scotland representative.

The minute of the previous meeting, held on 18 June 2026, was agreed. Members also received an update on work to secure additional clinical representation, including acute medicine, general practice and primary care.

The main purpose of the meeting was to consider reform of Part 5 of the Adults with Incapacity (Scotland) Act 2000 and safeguards relating to medical treatment, force, detention, conveyance, restrictive practice and covert medication.

Discussion

The Group considered a high-level policy paper regarding Part 5 of the Adults with Incapacity Act (AWI) drawing on previous consultations, guidance, stakeholder engagement and the Scottish Mental Health Law Review. Members were asked to focus on the intended policy direction, with detailed implementation to be developed through further work with the Group and people with lived experience, including carers.

Members noted that force, detention and covert medication had been brought together in one workstream because the underlying issues and an adult’s practical journey through primary care, conveyance, admission, treatment and discharge are closely connected.

Members recognised that advance choices may be relevant to Part 5 reform, particularly where reform seeks to give greater effect to an adult’s will and preferences. The principal focus of this meeting was, however, safeguards associated with section 47 treatment.

Interim treatment and dispute resolution

Members supported the overall direction of proposals to modernise interim treatment and dispute resolution so that necessary treatment, including palliative care, can continue lawfully and appropriately while an application or dispute is unresolved.

Further work is needed on routes of challenge and the respective roles of the Mental Welfare Commission for Scotland, independent review, tribunals and the courts.

Members stressed that reform must address decisions to withhold or withdraw treatment as well as decisions to provide treatment.

The distinction between urgent and non-urgent treatment may be difficult to apply in practice. Members also noted that the use of section 47 in hospitals and in community settings may require different approaches to duration, oversight and safeguards.

Supported decision-making should be central, particularly where an adult may regain capacity. Members also supported an effective independent route of challenge where an adult disagrees with a decision made under section 47.

Modernising section 48 safeguards

Members supported modernising safeguards for adults who lack capacity to consent to serious or ongoing treatment.

The Group noted that artificial nutrition is used in different circumstances, including treatment for mental disorder and treatment for physical health conditions. The purpose and nature of the treatment, and the professionals involved, should inform the safeguards required.

Members highlighted the complexity of decisions not to provide treatment or to withdraw treatment, including in later-stage dementia.

The Group discussed medication used to manage behavioural disturbance or agitation, including antipsychotic medication in dementia and learning disability settings. Members noted that safeguards may need to be strengthened and considered alongside relevant protections in mental health law.

Members considered the relationship between treatment safeguards, deprivation of liberty and the implications of the recent UK Supreme Court judgment. They agreed that the Part 5 and deprivation of liberty workstreams should be developed together.

Members also highlighted the need to consider conveyance, authority to use restraint, safeguards at admission, discharge and routes out of hospital where treatment has ended.

The implications for 16 and 17 year olds should be considered through a children’s rights lens, including the United Nations Convention on the Rights of the Child.

Consensus

The Group supported the broad direction of reform to Part 5, subject to further detailed work on implementation, safeguards and routes of challenge.

Reform should better reflect modern health and social care delivery and should address an adult’s journey from community care and conveyance through admission, treatment and discharge.

Supported decision-making and respect for an adult’s will and preferences should be central to the reformed framework.

Safeguards should be proportionate to the nature, purpose, duration and setting of treatment. A single approach may not be suitable for all forms of serious treatment or artificial nutrition.

The framework must provide effective oversight and routes of challenge, including where treatment is withheld or withdrawn.

Part 5 reform should be aligned with the deprivation of liberty workstream and informed by wider work on digital health and social care records.

Actions

Officials will:

• develop options for safeguards around serious treatment, covert medication, restrictive practices and hospital-based restrictions;
• consider whether and how independent review, second opinions, tribunal routes or court routes should operate;
• develop further thinking on conveyance, including certification before conveyance, authority to convey, the use of restraint and safeguards at admission;
• consider discharge and exit routes where treatment has ended but the adult remains in hospital;
• link the Part 5 workstream with the deprivation of liberty workstream;
• consider the implications for 16 and 17 year olds through a United Nations Convention on the Rights of the Child lens;
• engage with wider work on digital health and social care records;

Any other business

No further substantive business was raised.

Next meeting

The next meeting will take place on 20 August 2026 and will focus on deprivation of liberty, building on the issues discussed at this meeting.