In their otherwise excellent review of the Equality Act 2010 and mental health, ^{Reference Lockwood, Henderson and Thornicroft1} the authors did not highlight how the Department of Health currently discriminates against people with mental health problems.

The National Health Service (NHS) constitution has incorporated the Equality Act in terms of access to NHS care, including on the grounds of disability. However, a fundamental right of the constitution is that of choice. Section 2a states ‘You have the right to make choices about your NHS care and to information to support these choices. The options available to you will develop over time and depend on your individual needs’. ²

Since April 2009, patients have had a right to choose the service that provides their treatment when they are referred for their first out-patient appointment with a consultant-led team. Patients can review outcome data, specialist expertise and user feedback for a service, discuss it with their general practitioner, and be referred for an elective medical or surgical problem to any NHS consultant-led service across the country. However, the Department of Health excludes patients detained under the Mental Health Act 1983, military personnel and prisoners. It also excludes services where speed of access to diagnosis and treatment is important, for example emergency admissions and maternity services. However, under this clause it also excludes elective mental health services. This appears to be discriminatory under the Equality Act for people with mental health problems who are disabled by their disorder. So anyone with a mental disorder who is disabled and has had treatment locally cannot by right obtain a referral to a specialist mental health service. Most National Institute for Health and Clinical Excellence guidelines on mental disorders envisage stepped care. Where treatment has failed, the next step is onward referral to more intensively delivered cognitive–behavioural therapy (e.g. more frequent, longer sessions with more experienced therapists) or to specialised pharmacological advice that may not be available from a local community mental health team or psychology service.

Patients with mental disorders who are disabled therefore have the right to choose where they have treatment for their cancer, for example, but not for their mental disorder. Access depends entirely on the vagaries of local funding panels. The legal right to choice of elective care should be extended to mental health services, or withdrawn from surgery and medicine. The present discrimination is unconscionable.