Both Wilson and Ehjaz are right to highlight the fact that the Mental Health Act does allow for the transfer to hospital of prisoners who are assessed as meeting the criteria for urgent treatment. However, our thinking occurs in the context of considering what is in the best interests of mentally ill non-capacitous patients in prison where the consent to treatment provisions of the Mental Health Act do not apply. We explored whether the Mental Capacity Act could assist in rationalising both medical treatment and other aspects of care, such as enforced washing of non-capacitous patients in their best interests, in particular in light of case law concerning Article 3 of the Human Rights Act highlighting breaches which may occur from omissions of treatment (e.g. from offering no treatment while awaiting potential transfer to hospital).

In relation to juveniles, there are adequate numbers of secure hospital beds available and well-developed links between the in-reach team and the psychiatrists with access to beds hence transfer to hospital is speedy. However, in relation to the over 18-year-olds there is often a significant delay in patients being assessed and accepted by the relevant hospital, which is not infrequently compounded by disagreements about whether they are unwell enough to meet the urgent treatment threshold, what level of security is needed (leading to repeated assessments by different parts of the same service) as well as arguments about who is the responsible service (in a mobile population, often with uncertainty about their address or general practitioner). Thus, we are often caring for an unwell, incapacitous patient declining medication for weeks and sometimes months while processes and protocols grind on despite the best efforts of our experienced team.

In our service, most people who present with symptoms suggesting a psychotic illness can be admitted to the healthcare assessment centre where they can access a structured multidisciplinary team group programme, 24-hour nursing care and regular assessment by an experienced psychiatrist. There is also contact with family/supportive adults. It is unusual for there to be diagnostic uncertainty following such an assessment, although it does happen occasionally if the patient is on a restricted regime due to their level of aggressive or uncooperative behaviour.

We would agree that the ideal would be to practise in a system where transfer of mentally ill prisoners to hospital happened speedily. However, we propose that thinking about prisoners/patients and their best interests in the framework of the Mental Capacity Act may offer a way to rationalise treatment of mental healthcare in prison. We do not ‘advocate’ the use of depot medication; rather suggest that a best interests/significant harm approach using the Mental Capacity Act could provide adequate legal safeguards for both patients and staff and may be helpful in addressing some of the very real clinical dilemmas that we face as psychiatrists working within prison.