Adults with Incapacity Reform Expert Working Group minutes - September 2026

Attendees and apologies

•    Amy Stuart, Chair, Scottish Government
•    Professor Colin McKay, Edinburgh Napier University
•    Dr Maggie Whyte, NHS Grampian; Association of Clinical Psychologists and British Psychological Society
•    Jenifer Paton, Law Society of Scotland
•    Adrian Ward, Subject Matter Expert
•    James Hogan, Senior Professional Social Work Adviser for Mental Health
•    Lorna Elliott, Social Work Scotland
•    Elaine Longwill, SOLAR
•    Fiona Brown, Public Guardian
•    Audrey Graham, Mental Welfare Commission for Scotland
•    Alex Ruck Keene, Subject Matter Expert
•    Dr David Findlay, NHS Fife, deputising for Dr Jude Halford
•    Mark Kubeczka, Scottish Courts and Tribunals Service
•    Scottish Government Adults with Incapacity reform team and Secretariat

Apologies

•    Dr Jude Halford
•    Dr Conor Maguire
•    Ian Waitt
 

Items and actions

Welcome and previous minutes

The Chair welcomed members to the thirteenth meeting of the Expert Working Group.

Subject to a correction clarifying that some restrictive measures may require guardianship, another judicial route and/or deprivation of liberty authorisation, the minutes of the previous meeting were agreed.

Members asked that future papers should be clearly dated and version controlled.

Deprivation of liberty safeguards

The Group concluded its earlier discussion on deprivation of liberty and considered a possible urgent authorisation process.

Following concerns about independence and conflicts of interest, the Scottish Government is no longer proposing that local authorities should authorise deprivation of liberty. A court-based route will be explored.

Officials will consider how deprivation of liberty authorisation could link with guardianship and other Adults with Incapacity processes without requiring unnecessary duplicate applications or assessments.

Scenarios will be used to test how the different routes fit together and to support a clear and workable system for adults, families and practitioners.

Urgent deprivation of liberty authorisation

The proposed urgent route would apply where an adult is being, or is likely to be, deprived of liberty and waiting for the standard process would expose the adult or others to an immediate and serious risk.

The applicant would need evidence, or a reasonable belief pending assessment, that the adult lacks capacity for the relevant decision. Less restrictive alternatives would need to have been considered.

The initial proposal was for authorisation lasting up to seven days, with one possible extension of up to seven further days, while a standard court application was progressed.

Members supported an urgent process in principle but questioned whether a maximum of fourteen days would allow enough time for assessment, care planning and arranging less restrictive services.

The Group distinguished urgent cases from genuine emergencies where immediate action is unavoidable. It also noted that some urgent situations may arise after extensive efforts to maintain a less restrictive care plan and should not automatically be treated as a failure to plan.

Members stressed the need for a clear decision maker and safeguards in different settings, including hospitals, care homes, supported living and the adult’s own home.

The adult’s wishes, verbal or non-verbal objection, any disagreement among those close to the adult and any advance choices statement should influence the route and level of scrutiny.

The process should provide independent representation, advocacy, a practical right of challenge and appropriate access to non-means-tested legal aid.

Members agreed that the final framework must be understandable to frontline staff and supported by clear pathways, guidance and training. Safeguards and appeal routes under mental health legislation may offer useful comparative context, while remaining distinct from Adults with Incapacity law.

Agreement

The Group supported further development of an urgent deprivation of liberty route in principle.

Further work is required on time limits, the distinction between urgent and emergency situations, the decision maker, professional evidence, safeguards and routes of challenge.

The Scottish Government will develop a court-based proposal and use scenarios to test the interaction between deprivation of liberty, guardianship, powers of attorney, section 13ZA arrangements and restrictions of liberty.

Supported decision-making: possible statutory supporter role

The Group considered whether Scotland should create a statutory role for a person chosen by an adult to support them in exercising legal capacity and navigating services.

Members strongly supported the principle that adults should receive all practicable support to make their own decisions before substitute decision-making is considered.

Possible benefits included formal recognition of the supporter, clearer access to relevant information and meetings, and stronger participation by the adult. Risks included additional complexity, cost, bureaucracy, undue influence and formalising support that already happens in everyday life.

Members considered how a supporter would differ from independent advocacy, a named person or an attorney. Some favoured a simple statutory role, while others suggested adapting existing power of attorney arrangements or improving advocacy and information-sharing practices.

The Group highlighted unequal access to powers of attorney because of cost, awareness and access to legal services. Any approach should be accessible and should clearly explain what a supporter can and cannot do.

Supported decision-making may include practical steps to improve the adult’s understanding, memory, communication and participation. Support may be provided by trusted people and, where appropriate, professionals with relevant skills.

Any option must distinguish support from substitute decision-making and include proportionate safeguards against coercion, exploitation, abuse and undue influence.

Members noted that guidance and training may help but may not overcome all legal and practical barriers, including concerns about confidentiality and information sharing.

Agreement

There was agreement on the objective of supporting adults to exercise legal capacity and reducing unnecessary substitute decision-making.

The Group did not reach agreement that a new statutory supporter role is required. The problem to be addressed and the gaps in current arrangements need to be defined more clearly.

Further work will consider a statutory supporter, a named person-style model, changes to powers of attorney, improved advocacy, information-sharing mechanisms, guidance, training and service improvement.

Some improvements to supported decision-making may be progressed without waiting for legislation.

Actions and next steps

• The Scottish Government will develop and test a court-based deprivation of liberty model, including an urgent authorisation process and its interaction with existing Adults with Incapacity routes.
• Officials will review the proposed urgent time limits, decision-making arrangements, evidential requirements, safeguards, advocacy, legal aid and challenge routes.
• The Scottish Government will define the barriers to effective supported decision-making and undertake an options appraisal of legislative and non-legislative approaches.

Members may provide further comments by email. Revised proposals will be circulated for feedback.

Next meeting

Thursday 15 October 2026.