Adults with Incapacity Reform: Ministerial Oversight Group Minutes-Meeting 3-March 2026

Attendees and apologies

• Tom Arthur MSP, Minister for Social Care and Wellbeing, Chair
• Dr Roger Smyth, Legislative Oversight Forum Chair, Royal College of Psychiatrists 
• Shelley Gray, Commission Member, Scottish Human Rights Commission 
• Lorna Elliot, Deputy Chair, Mental Health Officer Subgroup, Social Work Scotland 
• Lynda Towers, Convener, Mental Health and Disability Subcommittee, Law Society of Scotland
• Professor Benjamin Shelley, Consultant in Cardiothoracic Anaesthesia and Intensive Care, NHS Golden Jubilee
• Professor Jill Stavert, Professor of Mental Health and Capacity Law, Edinburgh Napier University 
• Tim Barraclough, Executive Director, Tribunals and Office of the Public Guardian, Scottish Courts and Tribunals Service (SCTS)
• Jo Savege, Adults with Incapacity Lead, Mental Welfare Commission (deputising for Julie Paterson).
• Scottish Government Officials, Mental Health and Incapacity Law Unit

Apologies

• Eddie Follan, Chief Officer, Health & Social Care, Convention of Scottish Local Authorities
• Julie Paterson, Chief Executive, Mental Welfare Commission
• Alison White, Chief Officer, West Lothian, Health and Social Care Scotland
• Jenni Cannon, Head of Legal and Policy, Scottish Human Rights Commission

Items and actions

Minister opened the third meeting, reaffirming the shared purpose: robust protections for adults who lack capacity and shaping decisions for an AWI Amendment Bill.

Reform must be workable and costed: policy intent first, then operational impact.

Focus today: proposed changes to Part 1 (General Principles) and Part 6 (Intervention and Guardianship Orders), seeking greater emphasis on dignity, inclusion and equality, simpler processes, and consistency in judicial practice.

Final meeting before dissolution of parliament; Expert Working Group (EWG) continues during pre-election period.

Previous Minutes: agreed subject to one change  - record SG as a commission member, not “Head of Legal and Policy”.

Actions review:

• to review and consider group membership  - complete.
• lived experience engagement plan - in progress
• acute medical representation on EWG -  in progress
• share draft EWG workstream template with group  - complete.

General Principles (Part 1):

Group endorsed the proposed hybrid model prioritising the adult’s will and preferences, integrating Scott Review principles (dignity, inclusion, equality), with further detail and thought needed on the following points.

Define “others” (against whom will and preferences are balanced) and set evidential standards, recognising risk.

Clarify reciprocity; align across the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003, and the Adult Support and Protection (Scotland) Act 2007.

Language matters for culture change; align with the United Nations Convention on the Rights of Persons with Disabilities.

Standardise intimation; encourage in‑person assessment and evidence of supported decision‑making pre‑application; test principles in practice.

Intervention and Guardianship (Part 6):

Single medical report for applications (most cases): broad support with safeguards (qualifications, in‑person assessment, structured content, evidential standards); Royal College of Psychiatrists in Scotland opposes — further EWG discussion needed on recent paper.

Enable clinical psychologists to complete statutory incapacity assessments. Change endorsed but with assurance of appropriate training and scope (particularly regarding deprivation of liberty).

Endorsed Sheriff’s discretion to accept Mental Health Officer reports beyond 30 days when no material change has occurred to avoid unnecessary delays. using updates.

Further clarification needed on the extension of interim orders beyond six months; ensure consistency and rights to challenge. Further EWG discussion on Royal College paper scheduled. 

Endorsed creating a targeted criminal offence (parity with welfare offences); avoid duplication and secure police engagement; align with Office of the Public Guardian investigatory work.

Forum: Sheriff Court for now; tribunal shift could be a longer‑term transformation. 

Require evidence of supported decision‑making before guardianship; increase adult participation.

Deprivation of liberty authorisation model in development, subject to Supreme Court outcome; aim for European Convention on Human Rights compliance, exploring limitation of liability akin to the Mental Capacity Act 2005.

Engage Sheriff Principals and the Sheriffs’ Association.

Expert Working Group — Progress and Plan:

Next EWG meeting: Thursday 19 March 2026 to finalise guardianship for this stage; subsequent focus on powers of attorney and supported decision making.

Deprivation of liberty work continues, to be informed by the Supreme Court outcome.

Actions and Next Steps

Share the Royal College of Psychiatrists in Scotland Legislative Oversight Group paper.

Continue to progress the development of the lived experience engagement strategy and consideration of acute medicine representation on EWG.

Minister closed the meeting with thanks; next meeting date to be set post‑election.