Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss new clause 5—Report: statutory competency test for under-16s—

“Within 12 months of day on which this Act is passed, the Secretary of State must undertake a review of whether a statutory competency test for under-16s in determining their ability to make a relevant decision would be expedient for the purposes of this Act or the Mental Health Act 1983.”

This new clause requires the Secretary of State to undertake a review of whether a statutory competency test for under-16s would be expedient for the purposes of this Bill and the Mental Health Act 1983.

Clause 20 will make changes to wording under the Mental Health Act regarding the patient’s capacity and competence to consent to treatment so that it reflects the terminology used as standard by clinicians. While this amendment is not expected to create a practical change, it ensures consistency with other sections of the Mental Health Act and the Mental Capacity Act 2005.

As for new clause 5, it is our assessment that, were we to bring about legislative change which sought to introduce a statutory test of conscience for people under 16 in a single setting—that is, under the Mental Health Act—this could have unintended consequences for how competence is assessed, both in mental health settings and other linked areas of decision making. This could create additional confusion for clinicians and impact the ability of children to exercise choice and autonomy over their care and treatment in mental health and other settings, and cannot be justified. We therefore do not consider a statutory test under the Mental Health Act, or a review of that issue, to be necessary. We will consult on the guidance for assessing competence for under-16s in mental health settings in the revised code of practice, with the intention of providing further clarity to decision makers.

For those reasons, I commend clause 20 to the Committee and ask the hon. Members for Winchester and for Guildford not to press new clause 5.

Clause 20 addresses a central principle in healthcare, ethics and law: the right of individuals to make informed decisions about their treatment, and the conditions under which that right can be overridden.

Let me begin by recognising the objective of clause 20 as both important and welcome. It replaces the outdated and potentially ambiguous language in the Mental Health Act 1983—language that speaks of whether a patient is

“capable of understanding the nature, purpose and likely effects” of treatment—with a clearer legal standard based on whether a patient has capacity to consent, in accordance with the Mental Capacity Act 2005.

This reform aligns the Mental Health Act with how capacity is already understood and applied across health and social care, and it harmonises part IV of the Act with part 4A, which already uses that language in the context of community patients. So far, so sensible. However, as the Opposition, our role is not only to acknowledge the intention, but to ensure that the implementation matches the ambition, and that patients’ rights are not merely affirmed in law but upheld in practice.

What do these changes actually do? Under clause 20, we see a wholesale substitution of terminology. For example, in sections 57 and 58 of the Act, which deal with certain serious treatments such as neurosurgery and ECT, the language shifts from “capable of understanding” to having or lacking capacity to consent as defined in the Mental Health Act. It also explicitly incorporates advance decisions to refuse treatment under section 25 of the MCA, the role of a donee of lasting power of attorney, and the authority of a deputy appointed by the Court of Protection. This is a welcome acknowledgement of patients’ rights to plan ahead and to have their wishes respected, even when they later lose capacity.

While the Government’s explanatory notes suggest that this is not expected to create practical change, I think we should pause and ask: what if it does? We are told that clinicians interpret “capable of understanding” as meaning “having capacity” under the Mental Capacity Act. But the MCA test is precise: it requires the person to understand the information relevant to the decision, retain that information, use or weigh it as part of the decision-making process, and communicate their decision. So are clinicians routinely applying this test fully, or are they relying on informed judgment?

Can the Minister confirm, for example, whether NHS trusts have audited how consistently the MCA test is being applied in mental health settings? I was a clinician and am now an MP, so I understand the intent behind it, but the legal clarity—now with my MP hat on—is really important to ensure that we truly are interpreting the legislation we pass in this House for this country in the correct way when we are acting as clinicians.

When it comes to advance decisions in acute settings, clause 20 provides that an advance decision to refuse treatment must be both valid and applicable, as per section 25 of the Mental Capacity Act, but in the real world of psychiatric in-patient care, clinicians may encounter such decisions during a crisis, when patients are at serious risk of self-harm or suicide. How will the Government support clinicians in determining validity and application quickly, safely and lawfully? I assume— I think the Minister hinted at this—that that will be part of the code of practice.

On the power to override consent, perhaps most crucially the Mental Health Act allows for treatment without consent, even when the person has capacity, if they are detained under the Act. Again, we touched on this in relation to amendments discussed on the first day. That is a profound legal power. Does the clause change it in any way, or does it simply confirm that capacity is assessed, but not necessarily respected, under compulsion? If the Government intend the law to remain as it is—that patients with capacity can still be treated without their agreement—they may well need to specify and set that out. I urge Ministers to consider how we communicate that reality to patients, whose sense of agency and trust in the system may otherwise be undermined.

I turn to the matter of Gillick competence for children under 16. The clause clarifies that the standard for under-16s is Gillick competence, not capacity under the Mental Capacity Act. This reflects the long-standing legal test established in the 1986 case of Gillick v. West Norfolk and Wisbech Area Health Authority. Under Gillick, a child can consent to their own medical treatment if they have sufficient understanding and intelligence to comprehend what is proposed.

The Gillick test has advantages. It allows for a case-by-case assessment, not a rigid age threshold, and respects the emerging autonomy of young people. However, there are also risks: it can lead to inconsistency between clinicians and does not offer the same structured framework as the MCA. What safeguards will be put in place to ensure consistency and rigour in applying the Gillick test? Will the Government commit to updating the code of practice with guidance on assessing Gillick competence specifically in mental health contexts?

I turn to deputies, attorneys and verifying authority. The clause references lasting powers of attorney and deputies—that is right and proper—but we need to ask how a clinician will verify that a donee is acting within the scope of their authority. Will the Government consider a national standard protocol to support clinicians in checking LPAs and court orders, particularly in urgent situations? For example, could this be part of the checklist, which we have already discussed, or is it implied that it will be part of that in the first place?

Many of those concerns were shared in the other place. They were partly addressed in the letter for Baroness Merron, which is worth reviewing. It sought to clarify a number of concerns raised on Second Reading in the other place. I welcome the tone of the letter and the Minister’s stated willingness to listen. In particular, I acknowledge the recognition of the “challenges…to decision makers” that may be presented by

“the complex interface between the Mental Health Bill and the Mental Capacity Act”,

and I welcome the Government’s commitment to engage with clinicians and stakeholders during the revision of the code of practice. That is important.

However, the letter also raises some further issues that deserve scrutiny. First, the Minister says:

“Both Acts provide appropriate procedural safeguards to ensure that the individual’s Article 5 human right to liberty and security is protected during their detention. The nature of the safeguards provided under the two Acts are different”.

That is undeniably true, but therein lies the concern: where the safeguards differ, so too may the thresholds, the review mechanisms and the practical experience of those subject to detention. In cases in which a person might meet criteria under both Acts, what clear guidance will clinicians be given on how to decide which legal framework to apply and how to ensure that the individual receives the most appropriate and proportionate protection?

In the same letter, the Minister addresses the potential unintended consequences of reforms to section 3 of the Mental Health Act, namely that

“people with a learning disability and autistic people, who lack capacity, could, in certain circumstances, be detained under the Mental Capacity Act rather than the Mental Health Act”.

The Government’s stated intention is to prevent that outcome by strengthening community-based services. The letter states that

“the proposed changes to Part 2, section 3…will only be commenced when we are assured that there are strong community services in place.”

In the absence of clear statutory criteria, that could be seen as moving the target, so will the Government publish a set of benchmarks or a public readiness test? The Minister has said that the implementation will take place over 10 years, but a readiness test with criteria setting out how that will apply would help us to deal with a lot of the issues that we have talked about during the passage of the Bill.

Clause 20 is definitely a step forward in legal clarity, and the Opposition support the principles behind it. We want to ensure that capacity is not only assessed but assessed properly, that advance decisions are not only recognised but respected, that children’s rights are not only preserved but protected, and that patients’ voices are not only heard but heeded wherever possible.

Liberal Democrat new clause 5 calls for a review into whether statutory competence tests for under-16s should be introduced for the purposes of the Bill and the Mental Health Act 1983. I acknowledge the principle of where it is trying to go: it reflects a deeply important issue. How we assess and support the ability of children and young people to participate in decisions about their mental health care, particularly when that care involves complex, sometimes coercive interventions, is of paramount importance, and I know it will come up later in the Bill.

At present, as I have outlined, we rely on the long-established principle of Gillick competence, which allows children under the age of 16 to consent to treatment if they are judged to have sufficient understanding and intelligence to comprehend the proposed intervention. This principle is embedded in case law and has been repeatedly reaffirmed in medical ethics and judicial practice. It provides a degree of flexibility that many clinicians value, especially when dealing with young children, whose maturity and understanding often varies case by case. That said, I understand the case that the hon. Member for Guildford is making in the new clause. There are legitimate questions about whether the current reliance on Gillick competence is always applied consistently across services, particularly in mental health contexts, where decisions may involve not just consent to treatment but the implications of detention or long-term care.

We have touched on some of those issues, but I could go further. Are clinicians across the country being supported with adequate tools and training to assess the context appropriately? Do families and young people understand the rights and protections that they have under the system as it is, and therefore would changing it make things even more complex? Are there safeguards or protocols that we ought to consider in mental health contexts that may differ from those relating to general physical health?

I urge caution before introducing a statutory competency test, given that even introducing a formal review may unintentionally suggest moving towards rigid, one- size-fits-all thresholds that could undermine the current child-centred, flexible approach. There is also a risk that such a framework could raise the bar for children to participate in their own care decisions, rather than empowering them, particularly for those on the cusp of adolescence, who already navigate stigma and disempower-ment within the mental health system.

Although I am not opposed to reviewing the current practice, I suggest that we could take a different route—one that builds on existing legal and clinical principles without undermining them. Instead of a statutory review, I propose including the issue in the examination when we come to the code of practice. That would allow for a review of current clinical practice around Gillick competence, an assessment of the training tools and support available for professionals, and consideration of whether guidance or illustrative frameworks can be included in the code to help decision making for under-16s in the mental health context. Again, I think the Minister seemed to suggest that that is coming, but it is worth stating in this House on the record that we want that to happen.

I welcome the thinking behind the new clause, and I share the concern that young people need strong and clear safeguards, but I gently suggest that the best way forward would be to enhance guidance, clinical standards and meaningful consultation, rather than to introduce a new statutory requirement. I hope that my comments to the Liberal Democrats are clear, and that I have adequately set out my concerns about clause 20 to the Government. We will not divide the Committee.

It is an honour to serve under your chairmanship, Mr Vickers. I will speak briefly in support of clause 20 and comment on some of the issues surrounding new clause 5. Clause 20 aims to update wording in the Mental Health Act 1983 in regard to a patient’s capacity and competence to consent to treatment. That is in line with terms that clinicians use in practice across the piece. It provides consistency with the Mental Capacity Act 2005.

Although the clause is not expected to create practical change in clinical care, it does something vital that I would like to draw out. These changes bring forward the recognised and well-established ways that we give people the power to inform their future care and treatment if they get ill in the future. As my hon. Friend the Member for Thurrock so eloquently put it earlier, the ability to plan ahead for one’s care speaks to the heart of what we are trying to do with the Bill, namely to put people at the centre of it, but allow dignity in treatment and authority over one’s own healthcare. That is an important point to draw out in this clause.

Let me turn to new clause 5. The shadow Minister teased out a lot of detail around the Gillick competence test, which is used not just in one setting, but across multiple settings. I completely understand the need to ensure that our young people are empowered to make decisions, but the new clause may have the unintended consequence of making it harder for young people to be involved in their own treatment and have control over what they want to do with their health. We are not quite in the place where we need that statutory test.

It would be helpful to tease out from the Minister a little more about the plans to review the code of practice, which he mentioned in his opening remarks. What does he hope to see when we consult with clinicians on this? How can we be confident that clinicians will feel empowered to allow young people to take some control in their healthcare?

I rise to speak in favour of new clause 5, which would require the Secretary of State to undertake a review into whether the statutory competency test for under-16s would be expedited under the Mental Health Act. It has been great to hear so many contributions from colleagues on the Committee about the challenges that young people face when discussing their mental health and wellbeing and being involved in decision making around their health.

As my colleague Baroness Tyler noted in the Lords, and as the hon. Member for Hinckley and Bosworth noted in his early comments, the consistency with which Gillick competency is interpreted in the case of young people is a bit of a grey area. That is the key reason why we have tabled this new clause. We want young people to be empowered to be involved with decisions around their mental health. It is not hard to imagine how traumatic it must be for an under-16 to refuse treatment when they fully understand and object to it, yet be overridden because no one is quite sure how to assess their competency robustly. We believe that, at the very least, we owe it to young people to ensure that our legal framework is coherent, fair and protective of their rights.

The new clause would allow the Government to lead that conversation in a measured and consultative way. A statutory review would bring much-needed evidence and direction to a complex but critical issue. I am disappointed that the Minister will not consider the new clause, but I will withdraw it for expediency. However, it has been good to hear the commitment from the Minister to consulting on and reviewing this issue. The Liberal Democrats look forward to hearing more detail on it in the future and to being part of that conversation.

One theme raised by hon. Members on both sides of the Committee is the need for clarity and safeguards so that clinicians are clear on how best to assess competence. The Mental Health Act code of practice already provides guidance on establishing competence in under-16s. We will consult on the guidance for assessing competence in mental health settings in the revised code of practice, with the intention of providing further clarity to decision makers. That will include engagement with key stakeholders and clinical decision makers with experience of assessing competence in children.

We think it is better to focus on improving the practical application of Gillick and assessment of competency rather than reinventing the wheel, with the risk that that might cause confusion. The Department will work with NHS England, Social Work England and other partners to develop appropriate training for staff on the reforms. Once the code of practice has been updated, professionals working under the Act will be required to undergo training to maintain their competence and awareness of the Act.

I cannot resist the opportunity to probe the Minister on something so important. He said that NHS England will predominantly look at this, but changes are happening there. Will he ensure that Gillick competence and the assessment of capacity will be at the heart of this? It is unclear now, given that it will take two years for NHS England to be abolished, who will take that on. Will he ensure that that is given due attention, as we have with physical health?

Absolutely. We must ensure that we act rapidly as soon as the Bill gets Royal Assent by launching the consultation process on the code of practice. It will be vital that the question of the practical application of Gillick and the need for clarity is universalised right across the system.

The shadow Minister asked about the interface between the Bill and the Mental Capacity Act. We recognise the complex nature of that interface, which presents challenges for decision makers. We will continue to consider this interface as we implement our reforms, and we will engage with stakeholders to understand what support and guidance could help to improve application of the interface when we consult on the new code of practice.

My hon. Friend the Member for Croydon East made some powerful and important points about the risk of unintended consequences if we try to reinvent the wheel on this. She is absolutely right. She asked what we want to see in the consultation on the code of practice. For me, the two key areas would be clarity and ensuring practical application of Gillick, by understanding the case law and the complexity of the interface between the pieces of legislation. It is about ensuring that we get that clarity. We cannot do that in an ivory tower. We have to do it with Social Work England and a range of partners with practical, hands-on experience to ensure that the code of practice is the bible for addressing these important issues.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.