Adults with incapacity reform: Expert Working Group - terms of reference

Name

Adults with Incapacity Reform: Expert Working Group. 

Purpose

This group has been convened to advise and collaborate on the changes required to modernise the Adults with Incapacity system in Scotland, including the future amendment of the Adults with Incapacity (Scotland) Act 2000, with a specific focus on enhancing the rights and protections of people affected by incapacity law. 

The overall purpose of the group is to:

• enhance the rights and protections of adults affected by incapacity law in Scotland, ensuring that interventions respect their dignity, autonomy, and wellbeing
• ensure compliance with the European Convention on Human Rights (ECHR), with particular regard to safeguards against arbitrary detention, access to justice, and respect for private and family life
• align incapacity law with international human rights standards, including the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), promoting support to exercise legal capacity wherever possible
• champion a continuous improvement approach, seeking opportunities to improve the experience of those affected by incapacity law
• provide evidence-based recommendations for legislative and procedural reform, informed by expert analysis, lived experience, and comparative best practice
• advise on implementation and practical application, including judicial, medical, and social care processes, to ensure reforms are deliverable, effective, and accessible

The group will take a collective leadership approach in identifying areas for improvement, as well as developing and impacting the policy and operational solutions required to facilitate future legislative change. 

Context

Scottish Government consulted between July and October 2024 on proposed changes to the AWI Act. While it was clear from responses that there is strong support to modernise AWI legislation, we also heard concerns on system resourcing and the need for a further level of detail to be developed to support detailed consideration by partners. We have listened to those concerns and accepted that further work must be prioritised ahead of bringing forward a future Bill in this area. 

This group has been established to draw on expertise in law, medicine, social care, advocacy, and human rights, and will engage with key stakeholders to ensure reforms are inclusive and grounded in the realities of those most affected.

Role and remit 

The role and remit of the group is to: 

• advise and collaborate with Scottish Government on delivery of the AWI workstreams set out at annex A
• support the Scottish Government to gain a shared understanding of the risks, issues and opportunities for improvement within the current AWI system in the short, medium and long-term
• identify and share best practice across the AWI system to inform ongoing, ser-led service design and continuous improvement
• support Scottish Government to develop and refine the changes needed, providing constructive challenge and supporting the co-design of workable policy solutions
• provide advice to support Scottish Government’s understanding of the impact, feasibility and consequences of proposed policy solutions to ensure that duty bearers under any proposed legislation are able to inform the development of future legislative change in this area and implement it effectively once it is law
• champion the needs of adults affected by incapacity law, ensuring that vulnerable adults and their families remain at the heart of decision-making
• support the Scottish Government’s work in raising awareness and increasing the understanding of any future legislative reform across the public sector and assist improvement in accountability

Members should be mindful of Scottish ministers’ commitment to inclusion and diversity in public life and, in fulfilling their role, should strive to assist in creating a culture and environment that enables the Scottish Government to harness the talents of everyone by enabling and promoting the participation of people from under-represented groups. 

Chair and membership

The Chair of this group will be Amy Stuart, Head of Mental Health and Incapacity Law, Scottish Government. Deputy responsibilities will be provided by Scottish Government officials. 

Membership can be found at Adults with incapacity reform: Expert Working Group.

Secretariat will be provided by Scottish Government officials. 

The members detailed above will be permanent. Members may serve in a representative capacity (attending on behalf of a particular organisation or group of organisations) or in a personal capacity (being invited to join based on their insights, experience, and skills which they are able individually to bring to discussions).

Observers may be invited to attend meetings and join discussions at the discretion of the Chair. The Chair has discretion to invite other organisations to join as permanent members. 

At the discretion of the Chair, the group may establish ad-hoc groups to meet and discuss specific topics in more detail. The group may not delegate its function, as set out in this document, to ad-hoc groups unless expressly authorised to do so by the Chair. The decision to create an ad-hoc group or forum, and its membership, activities and outputs, must be agreed by the Chair.

Membership of the group does not constitute a public appointment. There will be no remuneration, financial or otherwise, for the time of members participating in this group. 

Governance

The group is an advisory group, with no decision-making powers and will make recommendations to be escalated to the AWI Reform: Ministerial-led Oversight Group. 

The Secretariat will provide a written highlight report to show the progress the group has made against the critical path for reform. They will also provide a Project Initiation Document (PiD) for each of the workstreams detailed above, to be reviewed and agreed by the group. 

The Secretariat will manage and keep the group informed of any risks and issues in line with the Scottish Government’s Guidance on Risk Management. 

All papers, documents and other materials developed by or on behalf of the group will be stored within the Scottish Government’s electronic records and document management system. 

The group will comply with the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (EIRs). 

The Secretariat will ensure that relevant information about the group's discussion is communicated to interested parties and is accessible to the public, for example through the Scottish Government website, and other publication mechanisms. Minutes will be taken and issued for clearance prior to the next meeting. 

Information and data shared with members is intended to inform decisions taken by the group and will be treated as official-sensitive. Papers will not be shared beyond members unless prior consent has been agreed by the Chair. Where required, the Chair shall advise on all aspects of confidentiality with respect to the information presented to and discussed by the membership. 

Meetings

After the initial meeting, the group will meet monthly until the remit has been fulfilled. The exact date will be confirmed by the Chair. It is expected that most meetings will take place remotely (using Microsoft Teams), though in-person may be held, by agreement of the Chair and group members. Meetings will last no longer than two hours. 

Members are expected to attend meetings, however, in exceptional circumstances representatives may attend. Members should notify the Secretariat if they cannot attend a meeting, if they wish to send a designated representative in their place, or if they wish to bring observers or additional contributors. 

Invites will be sent by the Secretariat a minimum of one month in advance. Papers will be sent at least five working days prior to the meeting via email. Members are encouraged to provide feedback, suggestions and comments via email correspondence between meetings as appropriate copying to all members.

Members should discuss accessibility requirements with the Secretariat ahead of meetings to confirm any such arrangements.

Outputs

The group should provide adequate input and information to allow AWI reform to progress, with an understanding of the full impacts of any legislative, policy or practice amendments. 

Members may be asked to carry out actions outwith meetings, such as gathering data or information from those they represent. They are expected to fulfil this action within the agreed timescale.

Review

The first meeting of the workstream group will take place on 18 September 2025 and the group will review the ToR every six months or when the Chair and members feel appropriate, commencing in March 2026.  

Annex A - Workstreams and desired outcomes 

General principles

To ensure that the general principles of the Act remain in line with developing thinking and international standards on human rights.

Deprivation of Liberty 

Develop a Deprivation of Liberty approval system for Scotland, ensuring compliance with ECHR, for adults who lack capacity.

Definition of an adult

Ensure that the Act and any proposed amendments remain compatible with the United Nations Convention on the Rights of the Child (applies to everyone under the age of 18), noting that UNCRC applies to everyone under the age of 18 while the Act applies to individuals aged 16 and over.

Forced detention and covert medication 

To develop any additional safeguards required where force or covert medication may be permitted under Part 5 of the AWI Act

Supported decision making

To embed supported decision making as the default approach for adults who lack capacity and to ensure there is effective recognition of the adults will and preferences, in line with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)

Powers of Attorney 

Review and improve Power of Attorney process and practice (legislative and non-legislative) and ensuring that the adults will and preferences are recognised in accordance with UNCRPD.

Access to funds 

Review Access to Funds process and practice, identifying opportunities for improvement (legislative and non-legislative) and ensuring that the adults will and preferences are recognised in accordance with UNCRPD.

Managing Residents’ Finances 

Review Managing Residents’ Finances process and practice, identifying opportunities for improvement (legislative and non-legislative) and ensuring that the adults will and preferences are recognised in accordance with UNCRPD.

Guardianships and intervention orders 

Review guardianship and intervention order process and practice, identifying opportunities for improvement (legislative and non-legislative) and ensuring that the adults will and preferences are recognised in accordance with UNCRPD.

Medical treatment 

To develop provisions to address a number of discrete issues in relation to medical treatment, examples being; conveying an incapable adult to hospital for non-urgent medical treatment and requiring an incapable adult to remain in hospital for medical treatment; that have been identified in previous consultations on the AWI Act as well as the Scottish Mental Health Law Review.

Data collection 

To collate and consider any improvements required to the data collected centrally in relation to AWI. 

Research 

Review and improve the processes for participation in health research and the ethical review of research proposals involving adults with incapacity in Scotland; whilst ensuring the rights, safety, dignity and wellbeing of research participants are prioritised throughout.