Examining the legal gap
Two investigations were launched in October 2024 to explore the safety of people in mental health crisis being cared for in urgent and emergency care services. The report published today is an interim report, which are usually published when there are patient safety concerns that need urgent attention.
The investigation identified there is currently no clear legal power to lawfully prevent vulnerable individuals from leaving the emergency department (ED) while they are waiting for assessment or admission. This legal ambiguity exposes people in mental health crisis to increased risk of harm and creates extremely challenging conditions for healthcare staff. Staff and organisations told the investigation they are often forced into impossible decisions, describing situations where they feel they must choose “the least harmful way to break the law” in order to try to keep people safe.
Hearing from healthcare staff
Throughout the report, quotes from staff members, reflect the extreme pressure they face in these situations. One consultant psychiatrist told us that ‘dilemma is stark’ and referred to having to think about holding the person unlawfully, breaching human rights or letting them go, where there is a risk they could come to serious harm. During a site visit for our investgiation, we observed a patient who had been locked in a single room with only a toilet for over four days. The report described that it was not safe for staff to be in the room and not safe for the door to be unlocked as the patient may leave and ‘was desperate to end their life.’ Staff told HSSIB that they were not receiving any therapeutic intervention, and it felt “cruel” and “inhumane” for them to be waiting so long for a bed when they were so mentally unwell, but the risk of harm to the patient if they were allowed to leave was very high. The investigation identified prevention of future deaths reports that made specific reference to coroners’ concerns relating to the legal gap and deaths associated with patients who attend the ED in mental health crisis and were able to leave.
Around 3% of all ED attendances are related to mental health. However, people experiencing mental health problems are twice as likely as other patients to remain in EDs for more than 12 hours. For those who require admission to a mental health hospital, an application under the Mental Health Act 1983 cannot be completed until an inpatient bed has been identified. In some cases, this can take days. During this time, patients may remain in emergency departments. Whilst the emergency department is the right place for many mental health emergencies, it is not designed to provide therapeutic mental health care. Prolonged stays can worsen patients’ distress and create challenges in maintaining a safe environment for patients, staff and other people using the department
Safety recommendations
The report also highlights growing frustration across the system. Concerns about the lack of clear legal powers have previously been raised, notably during parliamentary scrutiny of the draft Mental Health Bill. Despite this, staff continue to work within a legal grey area that offers neither clarity nor protection for patients or professionals.
As a result of these findings, we have made two safety recommendations. The first calls on the Department of Health and Social Care to urgently review the current legal framework and address legislative gaps affecting the care of people in mental health crisis in emergency departments. The second recommendation asks the Care Quality Commission to work with stakeholders to produce a national position statement on existing legal powers and expectations for staff supporting people in mental health crisis in emergency departments who are not detained under a formal legal framework. This is aimed at supporting safe, lawful decision making while minimising harm in the absence of comprehensive legislation.
Investigator's view
Nichola Crust, Senior Safety Investigator at HSSIB said: “People experiencing a mental health crisis are often at their most vulnerable when they arrive at the emergency department. Our report has highlighted that the unclear legal powers don’t just create operational complications for care. They can have a devastating impact on patients, leaving them exposed to uncertainty, emotional distress and an increased risk of harm at a time when being as safe as possible is paramount.
“As we emphasise in the report emergency departments are not designed to meet complex mental health needs, or set up to provide effective therapeutic care, particularly during the prolonged waits for assessment or admission. Without clear legal frameworks, staff repeatedly told us that they are placed in an impossible position when trying to keep people safe.
“The interim report is clear; rapid action is needed to address the legislative gaps and to ensure nationally consistent and lawful approaches that support compassionate, dignified and safe care for people in mental health crisis, while giving staff the clarity and protection they so urgently need.”
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