Question to the Department of Health and Social Care:

To ask His Majesty's Government whether they plan to amend the Mental Health Bill to provide professionals with clarity about how to assess whether children under 16 are competent to make relevant decisions under the Bill in the light of the judgment in Re S (Wardship: Removal to Ghana) [2025] EWCA Civ 1011.

We agree that it is right to focus on improving the practical application of Gillick and the assessments of competency. We have already committed to consulting on the guidance for assessing competence in mental health settings in the revised Mental Health Act Code of Practice, with the intention to provide further clarity to decision makers. This will include engagement with key stakeholders and clinical decision makers with experience of assessing competence in children.

As part of this, we can look to summarise and explain what case law has said on how competence should be assessed, including Re S (Wardship: Removal to Ghana). It remains our position that we would not consider a statutory test in the Mental Health Act.