Urgent and crisis care sits outside the choice

Regulation 40(2) removes any service where it is necessary to provide urgent care, and the NHS lists urgent, emergency or crisis treatment among the situations with no legal right to choose.

The short version

Regulation 40(2) says regulation 39(1) does not apply to any service where it is necessary to provide urgent care.
The NHS lists urgent, emergency or crisis treatment among the situations where you do not have a legal right to choose.
The definition of an elective referral itself excludes treatment identified as immediately required.
If you need help now, the choice framework is not the route, and waiting for it is the wrong move.

This pathway is built for planned care, and it says so three times in three different places. That is worth understanding clearly, because the failure mode here is someone in crisis waiting on a process designed for people who are not.

Three separate exclusions, same effect

The first is in the definition. Regulation 38 defines an elective referral as one for treatment that is not identified as being immediately required at the time of referral. If the need is immediate, the referral is not elective and the duty never engages.

The second is explicit. Regulation 40(2) states that regulation 39(1) does not apply to any service where it is necessary to provide urgent care.

The third is the NHS's own consumer list of when you do not have a legal right to choose, which begins with the situation where you need urgent, emergency or crisis treatment.

What this means in practice

An ADHD assessment is planned care. Someone can be in acute distress and also be waiting for a planned assessment, and those two things are handled by different parts of the NHS at the same time.

The mistake to avoid is treating the assessment queue as the response to an immediate crisis. It is not designed to be, it does not move faster because the need is acute, and the Taskforce's finding that waits reach years for both children and adults makes clear it cannot function as one.

If you need help now

Do not wait on an assessment pathway. Urgent and crisis mental health support runs through routes that exist for that purpose, including your GP practice, NHS 111 and emergency services. This site is an information site about a planned-care pathway and is not a crisis service.

Support that is not the assessment

Between crisis services and an assessment there is a middle layer that many people do not know about. NHS England's advice to systems says they can implement a support offer to help patients live well with ADHD, which could include voluntary sector provision, peer support options, and comprehensive patient information and signposting.

The Taskforce recommends the same from the other direction, saying providers and integrated care boards must ensure support for those waiting and provide clear signposting to local organisations that can provide information and support. Whether that exists where you live is a question for your GP practice and your integrated care board.

Questions people ask about this

Does Right to Choose apply in a mental health crisis?

No. Regulation 40(2) removes any service where it is necessary to provide urgent care, the definition of an elective referral excludes treatment identified as immediately required, and the NHS lists urgent, emergency or crisis treatment first among the situations where there is no legal right to choose. Crisis support runs through separate routes and should not be delayed while waiting on an assessment pathway.

Can an ADHD assessment be made urgent?

Nothing sourced supports that. NHS England has told systems they can review waiting lists and assign patients to the most appropriate list, and the Taskforce has suggested screening lists for severity, comorbidity and risk, while NHS England also warns that untested stratification or clinical triage is likely to present risks including potential harm to patients. Whether any review is happening near you is a local question.