Adults with Incapacity Reform: Expert Working Group Minutes - March 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
• Alex Ruck Keene (KC), Barrister, 39 Essex Chambers

• Scottish Government Officials

Apologies

• Adrian Ward (AW), Subject Matter Expert
• Claire Currie, First Legal
• Siobhan Wilson, Senior Solicitor, Stirling Council

Items and actions

Welcome and purpose

The Chair welcomed members to the seventh meeting and explained that the agenda had been reordered to support the flow of discussion.

• Apologies were received from AW, who sent written input and is expected to rejoin in April.
• The Group agreed the previous minute, subject to adding two attendees and a small wording change on statutory offences and penalties.
• There was a query regarding whether members can share papers with their networks to gather feedback. The Chair confirmed that Scottish Government papers must not be shared with others until after the election in May. Members can continue to have informal discussions with their colleagues during the pre-election period.

Feedback from Ministerial Oversight Group

Officials reported back from the Ministerial Oversight Group.

A three‑stage “gate” process will structure policy development:

(1) agree policy intent with this Group and the Oversight Group

(2) undertake implementation and costing work, including any formal consultation

(3) finalise proposals ahead of drafting, with timing subject to ministerial agreement in light of the election.

• The Ministerial Oversight Group endorsed a hybrid approach to the general principles, adding dignity, inclusion and equality (as highlighted in the Scott Review), with further work required on definitions (such as “others”), reciprocity, and how to proceed where an adult’s will and preferences cannot be followed.
• On Part 6, there was support for enabling clinical psychologists to undertake statutory and capacity assessments where suitably trained, and for allowing sheriffs to accept Mental Health Officer reports that are more than 30 days old where no material change has occurred. The concept of a new offence addressing financial abuse was supported in principle, subject to engagement with justice partners.
• On membership, the Group agreed in principle to add acute medicine expertise and will consider nominees before confirming representation.
• The possible future role of the tribunal in this reform will be brought back for a fuller discussion; any transfer of functions from the sheriff courts would be a substantial change and would need careful scoping and timing.

Guardianship and Intervention Orders

The Group continued its discussion on guardianship and intervention orders.

• Members considered whether to move from two medical reports to one for applications. Views differed: some favoured retaining two reports as a safeguard, while others supported a single report with strong competency requirements and clear criteria for when a second report is needed.
• There was support for an approval and training framework to assure assessor competence, potentially widening the pool beyond psychiatrists where appropriate.
• The Group also discussed how best to authorise deprivation of liberty alongside welfare decisions. Consideration of the possibility of a single, clear process with distinct authorisations to reduce duplication and ensure compliance with the European Convention on Human Rights. Officials will consider who may provide any required medical evidence.
• On interim orders, the Group considered allowing sheriffs to renew beyond six months with active review to avoid gaps in protection during contested cases, while keeping safeguards tight. A forthcoming Sheriff Principal practice note may assist with consistency in court practice.

Actions:

• Engage on acute medicine representation and return with a proposal.
• Develop side‑by‑side scenarios for one‑report and two‑report models (including safeguards, competence, and judicial implications) to aid discussion and engagement with the judiciary.
• Model options for authorising deprivation of liberty, including where no guardianship is in place, and consider who can provide medical evidence.
• Explore strengthened safeguards for interim orders extended beyond six months.

Close

The Chair thanked members. The team will consolidate comments and develop draft models for consideration at the next meeting.