Mental Health Bill [Lords]

Josh Dean Excerpts

Report stage
Tuesday 14th October 2025 Commons Chamber

[Ian Sollom]

I agree that resources need to be put in place to support the many good measures in the Bill and in many of the proposed amendments. In Declan’s case, services were created in the wake of tragedy and funding was found, but too often such services disappear when attention moves elsewhere.

I recognise that the implementation challenges are real, and I appreciate that the Minister has committed to providing annual written statements on progress, but I believe the principles in the amendments around crisis provision, proactive intervention, accountability and co-production with autistic people merit consideration. As much as I would like him to, I do not expect that the Minister will have a late change of heart on the amendments today. However, I hope he will be willing to meet me after the Bill receives Royal Assent to discuss how we can work together to ensure the systemic failures that led to Declan’s death are properly addressed during implementation of the measures in the Bill. In stopping those systemic failures, we would honour the memory of Declan.

[Josh Dean (Hertford and Stortford) (Lab)]

In the interest of time, I will turn straight to new clause 25, tabled in my name.

The Bill sets out a range of situations where the competence of a patient aged under 16 will be relevant, but it does not set out a framework for how it should be determined. That puts patients under 16 years old at a huge disadvantage. Unlike those aged 16 and over, there is no clear mechanism for determining whether a child under 16 can make decisions and the law assumes that under-16s cannot make decisions for themselves, unless they demonstrate they are able to do so. That means that under-16s may not benefit fully from the rights and safeguards set out in the Bill because they are assumed to lack competence to make the relevant decision. For example, they may not be able to exercise their right to choose a nominated person or to access enhanced safeguards around treatment.

There is currently no statutory test for determining a child’s ability to make decisions. While some may refer to Gillick competence, the Joint Committee on the draft Mental Health Bill noted that Gillick competence is “broad”, “ambiguous” and that there were significant inconsistencies in its application. A similar observation was made by the Court of Appeal in a decision earlier this year, which also indicated the Court’s approval of a functional test to determine a child’s competence.

New clause 25 addresses this disparity by introducing a “functional test” to determine an under-16’s ability to decide. This reflects the suggested approach in the current code of practice, adopted by some judges. The Law Commission has recommended a similar test as part of its proposed legal reform concerning disabled children’s social care. This test fills a significant gap in the Bill, providing important clarity for professionals when a child’s competence needs to be determined. Crucially, the test set out in new clause 25 is explicitly limited to decisions made under the reformed Mental Health Act. It does not cover decisions falling outside of the Act, so does not affect the existing decision-making powers of the courts or those with parental responsibility. A clear and consistent approach to assessing a child’s competence can only be achieved by including a test on the face of the Bill, as the code of practice can only reflect the law—it cannot prescribe a test for competence. I would be grateful if the Minister addressed that point at the end of this debate, and if he would consider meeting me to discuss my amendment in more detail. This Bill has many strengths that will deliver for people and modernise mental health care, and it is crucial that we ensure children and young people can benefit from those strengths in the same way adults can benefit.