Adults with Incapacity Reform Expert Working Group minutes: January 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 
• Alex Ruck Keene [KC] (ARK), Barrister, 39 Essex Chambers 
• 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
• Dr Jude Halford (JH), Royal College of Psychiatrists in Scotland
• Elaine Longwill (EL), SOLAR Representative 
• Scottish Government Officials

Apologies

• Claire Currie, First Legal 
• Adrian Ward, Subject Matter Expert
   

Items and actions

Welcome and apologies

The Chair welcomed members to the meeting and noted that this was the first meeting of the Expert Working Group in 2026. The Chair welcomed DR, who attended in place of FB to represent the Office of the Public Guardian.

Agreement of Previous Minutes and updates

Minutes of previous meeting agreed subject to clarification that JH was attending in her capacity as a representative of the Royal College of Psychiatrists in Scotland

Discussion of General Principles

The focus of the meeting was to shape the general principles that will guide future reform of Adults with Incapacity law in Scotland, and to consider how an adult’s will and preferences should be prioritised in decisions about their care and life.

Discussion points

• Whether to keep and strengthen the current principles in Adults with Incapacity law, or adopt the approach suggested by the Scottish Mental Health Law Review. Members talked about clarity, accessibility for the public and families, and how any changes would work in practice
• How to give clear priority to the adult’s will and preferences, while recognising real‑world issues such as fluctuating health, possible undue influence, and urgent situations
• The evidence decision‑makers should record to show that actions reflect the adult’s wishes, with expectations that are proportionate to the seriousness and urgency of the decision.

Consensus

• Hybrid approach to principles: Keep the current Adults with Incapacity principles as the core, and strengthen them to highlight dignity, inclusion, equality and support for decision‑making. Guidance, codes of practice and training will be essential to make this work in practice
• Priority for will and preferences: The adult’s will and preferences should usually take priority over the views of others when deciding if an intervention is needed and what it should be, while managing risks such as undue influence and safeguarding concerns.

Actions

• Officials will prepare a revised set of strengthened principles for a future meeting
• Further work will set out: how to express the priority of will and preferences in law; what evidence should be recorded (proportionately); and how this interacts with safeguarding.

Next Meeting: 19 February 2026