Adults with Incapacity Reform Expert Working Group minutes - June 2026

Attendees and apologies

•    Adrian Ward (AW), Subject Matter Expert
•    Debra Calderwood (DC), Deputy Public Guardian
•    Elaine Longwill (EL)
•    Dr Jude Halford (JH), Royal College of Psychiatrists in Scotland
•    Ian Waitt (IW), Mental Health Officer Service Manager, Social Work Scotland
•    Jennifer Paton (JP), Policy Lead, Law Society of Scotland
•    Mark Kubeczka (MK)
•    Dr Maggie Whyte (MW), Clinical Psychologist
•    Professor Colin McKay (CM), Professor of Mental Health and Capacity Law, Edinburgh Napier University

Scottish Government Officials

Apologies

•    Claire Currie, First Legal
•    Alex Ruck Keene KC (ARK), Barrister, 39 Essex Chambers
•    Jo Savege (JS), Adults with Incapacity Project Lead, Mental Welfare Commission for Scotland

Items and actions

Welcome and aim

The Chair welcomed members to the tenth meeting of the Expert Working Group. Members agreed the minutes of the previous meeting.
The meeting reviewed progress across the reform workstreams, the Group’s Terms of Reference, plans for lived-experience engagement and the implications of the recent UK Supreme Court judgment for deprivation of liberty work.

Discussion

•    Members reviewed the Terms of Reference and agreed that membership should remain flexible, allowing specialist contributors to participate where required. The Group welcomed Dr Maggie Whyte as a substantive member and supported further work to secure physician representation.

•    Officials reported that all core reform workstreams were under way and that progress was broadly in line with, or slightly ahead of, the agreed timetable.

•    On guardianship orders, the Group discussed a possible single-report model, the professional expertise required to prepare reports, the handling of late Mental Health Officer reports and the need for effective safeguards. Further stakeholder engagement, including with judicial interests, was continuing.

•    On powers of attorney, members considered simpler terminology, stronger certification, clearer information and guidance, and possible arrangements for determining when powers should become active. Members stressed the need to balance safeguards with accessibility and avoid discouraging people from acting as attorneys.

•    On deprivation of liberty, officials advised that work was continuing to identify a framework that is compatible with human rights, proportionate and workable in practice. The recent UK Supreme Court judgment would inform the further development of this workstream.

•    Officials outlined plans for workshops with people with lived experience, carers, practitioners and representative organisations. Initial workshops were expected to cover powers of attorney, guardianship orders and supported decision-making.

•    Members supported inclusive and accessible engagement. They suggested additional engagement with organisations supporting people affected by Parkinson’s, multiple sclerosis, acquired brain injury, stroke and dementia. They also stressed the importance of hearing directly from people with experience of the system, as well as carers and practitioners.

•    The Group considered the immediate practical implications of the UK Supreme Court judgment. Members highlighted uncertainty among practitioners, limited Scottish guidance and the risk of inconsistent approaches to hospital discharge, care planning and community placements.

•    The discussion of the judgment included the importance of a person’s wishes and feelings, the distinction between valid consent, assent and acquiescence, safeguards for people who do not actively object, ongoing review, and the relationship between Article 5 and Article 8 of the European Convention on Human Rights.

•    Several members supported practical guidance for practitioners while the longer-term implications were considered.

Actions

Officials will:

•    Update and circulate the Group’s Terms of Reference.
•    Explore options for physician representation on the Group.
•    Continue stakeholder engagement and policy development across the guardianship orders, powers of attorney and deprivation of liberty workstreams.
•    Continue developing materials for lived-experience workshops and consider the additional organisations and groups suggested by members.

Next meeting

Details of the next meeting will be circulated to members separately.