Adults with Incapacity Reform Expert Working Group minutes: November 2025

Attendees and apologies

•  Adrian Ward (AW), Subject Matter Expert
•  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, Subgroup Social Work Scotland 
•  Jo Savege (JS), AWI Project Lead, Mental Welfare Commission 
• Fiona Brown (FB), Public Guardian, SCTS
• Dr Jude Halford (JH), RPsych Legislative Oversight Group and Consultant Liaison Psychiatrist, NHS Lothian
• Scottish Government Officials - Adults with Incapacity Team

Apologies

•  Claire Currie, First Legal 
• Alex Ruck Keene KC (Hon), Barrister, 39 Essex Chambers 
• Siobhan Wilson, Senior Solicitor, Stirling Council

Items and actions

Welcome and apologies

The Chair welcomed attendees and introduced new member Dr Jude Halford, representative of the Royal College of Psychiatrists Legislative Oversight Group.

Agreement of previous minutes and updates

Minutes from the previous meeting (16 October) were agreed without amendment.
An update was provided on the recent Legal Aid consultation and engagement with the Legal Aid team to ensure alignment with AWI reform proposals. Members stressed the importance of transparency and safeguarding access to justice.

Deprivation of Liberty (DoL) workstream

Scottish Government officials presented a paper exploring whether Scotland should adopt a separate DoL authorisation regime as per the Deprivation of Liberty Safeguards and Liberty Protection Safeguards in England/Wales, and the Northern Ireland panel system..

Discussion points included:

• assessment framework: Members agreed mental disorder and capacity should be assessed separately. Suggestions included allowing trained professionals beyond doctors to undertake capacity assessments, supported by accreditation
• professional roles and training: Support for expanding assessors to include speech and language therapists. Training and independence were highlighted as critical

• authorising authority: Options considered were judicial routes, administrative panels, and local authority-led models. Members noted the Scott Review’s recommendation for a judicial system and discussed a tribunal-style body for Scotland
• safeguards and Human Rights Compliance: Any system must comply with Articles 5 and 8 ECHR, provide judicial review, advocacy, and protections against undue influence

• urgent authorisations: Members debated introducing a mechanism similar to England’s revised Section 4B powers for urgent authorisations

Consensus:

• Scotland requires a DoL framework that is rights-based, practical, and resource-aware
• urgent authorisation options should be explored with robust safeguards

Action:

• further work to compare judicial, tribunal, and administrative models and assess feasibility. A paper will be produced for the next meeting

General principles workstream

Officials introduced proposals to strengthen principles underpinning AWI law, including:

• prioritising the adult’s will and preferences over other consultees

• updating terminology from “wishes and feelings” to “will and preferences.” Embedding a duty to take every reasonable step to ascertain the adult’s will and preferences and a shift to prioritise the wills and preferences of the adult over others

Discussion points included:

• moving from passive language to active duties for accountability

• alignment with the Scott Review’s recommendation for a new set of principles across mental health and incapacity law

• practical challenges in prioritising will and preferences where principles conflict

• improving accessibility and understanding for practitioners and families

• retaining distinctions between will, preferences, and wishes, consistent with UN Disability Convention language

• members were invited to submit additional comments by email ahead of the next meeting

Ministerial oversight group update

The next meeting will take place on 9 December 2025. A highlight report summarising progress and key discussion points will be prepared for Ministers. Members were advised that turnaround for feedback will be short.

Closing remarks

The Chair thanked members for their constructive contributions and emphasised the importance of detailed engagement in shaping robust, rights-based reform proposals.

Action points

Draft report to be circulated for comment prior to submission.

Continue work on DoL and General Principles over December and January meetings.