Adults with Incapacity Reform Expert Working Group minutes: September 2025

Attendees and apologies

• Adrian Ward, Subject Matter Expert, Advisor
• Lynda Towers, Mental Health and Disability Sub Committee, 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 and apologies

The Chair welcomed attendees. Introductions and apologies were noted.

AWI reform: overview and purpose

Scottish Government official provided an overview of the Adults with Incapacity (AWI) reform programme, highlighting: 

• the purpose and collaborative approach

• key workstreams and the critical path

• the importance of transparency underpinning the Group’s work

 Scottish government official presented the Deprivation of Liberty (DoL) workstream.

• a legal framework is emerging; a paper will be circulated ahead of the next Expert Working Group (EWG) meeting

• discussion is ongoing about whether DoL should be addressed within the existing guardianship system or via a separate mechanism

An update was provided from the Ministerial Oversight Group meeting that took place on the 10 September 2025.

• following a suggestion from MOG, work on General Principles will also be progressed

• ministers are unlikely to provide specifics on the timing of a future Bill at this time given the proximity of the 2026 Scottish Parliamentary election

• between now and the dissolution of parliament, the Minister is focussed on laying strong foundations for reform

• the aim is not only to introduce a bill but to ensure consensus on its content and swift commencement and implementation

Discussion points

Members agreed they are aligned and ready to move into substantive discussions.

Two key questions were raised:

• limited reference to previous SG engagement (2016, 2018, recent consultations)

• clarification on whether workstreams are progressing in sequence or in parallel

It was noted:

• workstreams will run in parallel, with a clear legislative focus

• lessons from the World Congress 2022 and recent cases (e.g. Aberdeenshire, Argyll & Bute, Edinburgh Council) highlight implementation gaps in the 2000 Act

• a deprivation of liberty scheme is needed that allows judicial procedures to be applied appropriately

• reference made to a current French case in Strasbourg that may influence jurisprudence on DoL

Members agreed:

• work should begin with the DoL issue

• previous engagement must be considered in shaping proposals

• legal requirements are understood, but practical implementation needs further exploration

Concerns were raised about

• the number of workstreams (12) being too high for the available capacity
• overlap between workstreams and the need to review sequencing and critical path
• ensuring that the outcome of the forthcoming UK Supreme Court hearing informs policy discussions

It was noted:

• the Scottish Human Rights Bill may intersect with AWI reform
• language and timing challenges could impact workstreams
• the AWI Act was once a model of good legislative drafting while updates are needed, care should be taken not to discard parts of the Act that are underused due to lack of training rather than flaws

Group terms of reference 

The group were asked to agree the draft Terms of Reference (ToR).

Comments:

• suggestions to align terminology in Sections 2.2 and 4.1, moving away from “service users” and “vulnerable adults” to “adults affected by incapacity law”
• preference for “support to exercise legal capacity” over “supported decision-making”
• importance of an implementation steering group involving key bodies and stakeholders
• typos Flagged in Sections 2.3 (“impacting”) and 4.1 (“ae” should be “are”)
• awaiting final representative from the Royal College of Psychiatrists
• discussion on inviting SOLAR and whether SOLAR is appropriate for Ministerial Oversight Group or better suited to the Expert Working Group
• practitioners may offer valuable perspectives

Lived experience

SG officials outlined two key focus areas for the development alongide the outlined workstream, lived experiance engagemen and Impact Assessments.

• it was suggested involving social care organisations and individuals with lived experience
• question was raised on how lived experience will be captured and integrated
• caution received on selecting appropriate representatives to ensure that engagement is meaningful for all and that input can truly inform future reforms

Action points

• pick up conversation with SOLAR regarding appropriate group involvement

• review Group membership and bring back proposals to the next meeting

• SG officials to present further detail on the critical pathtto the group for consideration