Adults with Incapacity Reform Expert Working Group minutes: October 2025

Attendees and apologies

• Adrian Ward, Subject Matter Expert, Advisor
• Jennifer Paton, Policy Lead, Law Society of Scotland
• Professor Colin McKay, Professor of Mental Health and Capacity Law, Edinburgh Napier University
• Ian Waitt, Mental Health Officer Service Manager, Subgroup Social Work Scotland
• Jo Savege, Adults with Incapacity Project Lead, Mental Welfare Commission 
• Fiona Brown, Public Guardian, Office of the Public Guardian 
• Adults with Incapacity Team, Scottish Government Officials 

Items and actions

Welcome, apologies, and minutes

The Chair welcomed attendees and noted introductions and apologies.

The minutes of the previous meeting were confirmed as accurate, with one member noting they had submitted comments separately by email for future consideration. No objections were raised, and the minutes were agreed.

Updated terms of reference

The Chair confirmed that the Terms of Reference (ToR) had been updated following the last meeting but requires further revision based on recent feedback. It was agreed that SG officials will revise the ToR and circulate via email for member approval. A new addition was agreed: input received via email on any workstream should be shared with the full membership list to ensure transparency and inclusivity.

Action: Update ToR to address feedback, include new stipulation on communication, and re-circulate.

Update on previous actions

Engagement has begun with representative organisations including Carers Trust, People First, Scottish Independent Advocacy Alliance, and VOX and further meetings are planned with Alzheimer Scotland. Discussions are also ongoing with COSLA regarding SOLAR joining the group, and with Health and Social Care Scotland regarding nomination of a Chief Officer for the Ministerial Oversight Group and possibly the Expert Working Group. Members were assured updates will be shared as they progress.

In discussion, the group noted:

• importance of including experts focused on deprivation of liberty
• need to consider group composition and potential sub-working groups for specific workstreams
• flexibility to engage external experts on an ad hoc basis

Actions:

• SG officials to continue engagement and report back to the group
• SG officials to follow up with COSLA and Health and Social Care Scotland on membership, and liaise with Adrian Ward (AW) on expert suggestions for deprivation of liberty
• all members to consider structure and composition of sub-working groups

Update on Critical Path

An update was shared on the critical path, outlining key workstreams and decision points, extending to June 2027 with flexibility for external dependencies (e.g. Scottish Parliamentary election, UK Supreme Court case). Decision points begin in November, with policy development expected to conclude by June 2027. The Chair also suggested in-person or hybrid meetings at key decision points and will seek views via email. 

In discussion, the group noted:

• the critical path should include pre-parliamentary processes, impact assessments, and consultation phases
• AW stressed the importance of visualising the full legislative journey to avoid confusion on timelines
• SG Officials clarified that June 2027 marks end of policy development, not start of parliamentary proceedings
• Colin McKay (CM) highlighted the need to include the Ministerial Oversight Group in the diagram

Action: SG officials to extend chart to include pre-parliamentary phases and oversight group input; circulate before next meeting.

Discussion of Deprivation of Liberty Paper

SG officials introduced the DoL paper and outlined the UK Supreme Court reference raised by the Attorney General for Northern Ireland, concerning whether individuals lacking capacity can consent to confinement through expressed wishes and feelings. The Lord Advocate is participating in the reference to ensure safeguards for Scotland, and the outcome will influence Scotland’s legal framework, particularly regarding the Cheshire West “acid test” and potential shift to a multi-factorial test.

In discussion, the group noted:

• the need for a Scottish approach that is human rights compliant, operationally feasible, and legally robust
• AW raised concerns about lack of clarity and consistency in current DoL procedures; rights must be upheld in practice
• models explored for authorising DoL; judicial processes (courts or tribunals), administrative panels with oversight, local authorities or health boards (England/Wales model)
• CM highlighted conflict of interest if local authorities both provide care and authorise restrictions; suggested Northern Ireland model with tribunal oversight
• Jo Savege (JS) and Ian Waitt (IW) raised resource constraints, particularly shortage of MHOs and need for training
• members agreed any system must include: judicial review, independent safeguards, advocacy support, and clear legal authority
• Jennifer Paton (JP) raised concerns about concentration of power; Fiona Brown (FB) stressed need to estimate case volumes
• JS suggested using Care Inspectorate data; AW recommended proportional estimates from other jurisdictions

Legal and Policy Considerations:

• Winterwerp case criteria discussed; need for lawful process with easy judicial review
• AW highlighted distinction between authorising guardianship and actual exercise of DoL powers
• debate on Scottish Law Commission proposals vs Mental Health Tribunal model; possibility of new authorising authority (as in Ireland)
• alignment with Scottish Mental Health Law Review recommendations noted

Actions:

• explore legality and feasibility of non-judicial authorising bodies
• investigate models from NI, Ireland, and England/Wales; circulate relevant documents
•  prepare comparative paper on authorisation models and projected case volumes
• FB to liaise with Scottish Courts and Tribunals Service on tribunal vs sheriff-led processes
• SG officials to gather data on current DoL scenarios; explore Care Inspectorate data
• AW to share references and expert contacts

Any other business

The Chair invited final comments: 

• members emphasised need for whole-system approach to AWI reform
• SG Official raised limited liability provisions (England/Wales) to reduce welfare guardianship orders; access to funds requires further attention (separate workstream ongoing)
• niscussion on tribunals vs sheriff courts: concerns about inconsistency; IW and JS highlighted benefits of tribunal panels
• need for liaison with Scottish Courts and Tribunal Service confirmed
• members stressed importance of stakeholder engagement and lived experience representation
• JS suggested reviewing lessons-learned paper from English DoLS system

Actions:

• circulate DoLS lessons-learned paper from England
• group members to consider implications of limited liability provisions and share views via email
• explore stakeholder engagement models, including lived experience representation