Adults with Incapacity Reform Expert Working Group minutes - May 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
• Dr Maggie Whyte (MW), Clinical Psychologist, NHS Grampian
• Mark Kubeczka (MK), Legislation Implementation Manager, Scottish Courts and Tribunals Service
• Elaine Longwill (EL) SOLAR representative
• Adrian Ward (AW), Subject Matter Expert
• Dr Jana De Villiers (JDV) Royal College of Psychiatrists representative (for Jude Halford)
• Danielle Rose (DR) Office of the Public Guardian (for Fiona Brown)
• Debra Calderwood (DC) Office of the Public Guardian 
  
Scottish Government Officials

Apologies

• Alex Ruck Keene (KC), Barrister, 39 Essex Chambers
• Fiona Brown (FB) Office of the Public Guardian
• Dr Jude Halford, Royal College of Psychiatrists

Items and actions

1.    Welcome and aim

The Chair welcomed everyone to the ninth meeting of the Expert Working Group. 

Members agreed the previous meeting Minute, with a correction to the attendance record. 

The main discussion launched the workstream on supported decision making, focusing on whether reform should strengthen legislative duties and/or prioritise practice change through guidance, training, resourcing and evaluation.

2.    Discussion

•    Officials outlined an approach where support for the exercise of legal capacity is treated as the default, particularly before use of restrictive interventions under the Act; this would include proportionate recording of support offered and the outcome. 

•    Members emphasised that culture, training, tools and resources are likely to be as important as legislation, and that the term “supported decision making” is used inconsistently and may need clearer definition for the Scottish AWI context. 

•    The Group discussed where any strengthened duty would sit (for example, within general principles), noting practical issues where duties are currently framed around established incapacity rather than supporting retained capacity. 

•    Who any duty would apply to was explored. Views differed on whether responsibilities should attach broadly to those proposing to use powers under the Act, or whether expectations should fall primarily on public bodies and professionals given resource and access constraints for private applicants (often family members). 

•    There was broad support for meaningful (non tick box) recording of support, while keeping requirements proportionate and workable in urgent or straightforward cases. 

•    Members highlighted complex scenarios requiring guidance, including situations where expressed wishes cannot be actioned due to illegality, feasibility, cost or risk of harm, and the need for clearer justification where practice departs from expressed wishes. 

•    The Group supported building in evaluation, cautioning against using guardianship volumes as a simple measure of success and preferring metrics focused on evidence that support was considered and offered before interventions. 

3.    Consensus

•    Support for the exercise of legal capacity should be central to AWI reform and considered before restrictive interventions are pursued. 

•    Legislative change alone is unlikely to deliver consistent improvement without accompanying action on training, resourcing, guidance and system leadership. 

•    Any recording expectations should be proportionate but sufficient to demonstrate what support was offered and with what outcome, particularly where an intervention proceeds. 

•    A clearer shared definition (and potentially revised terminology) is needed for communication and implementation.

•    Evaluation and monitoring should be built in, with success measures focused on practice evidence rather than headline volume metrics alone. 

4.    Actions

Officials will:

1.    Develop options for strengthening duties relating to support (including where such duties would sit in legislation and how they would operate in practice)

2.    Bring back analysis on who any duty would apply to (including implications for public bodies, professionals and private applicants), and how issues of resources, accountability and remedies would be addressed. 

3.    Propose a proportionate approach to recording support, supported by practical scenario examples for guidance and/or codes of practice. 

4.    Revisit terminology and develop a clear definition for the Scottish AWI reform context. 

5.    Note and progress further exploration of concepts raised, including a “registered supporter” model and any potential impacts for courts and the Office of the Public Guardian, as policy develops. 

Next meeting:

18 June 2026