On 8 April the Health Services Safety Investigations Body (HSSIB) published an interim report on Legislative challenges in emergency departments.
This interim report was published due to early identification of a “significant legal, policy and safety gap” in the care of people in emergency departments (Eds) in mental health crisis.
Readers will recall debates around the use of the Mental Health Act 1983 in EDs during the passage of the Mental Health Bill (now Mental Health Act 2025).
This interim report appears to have been triggered, in part, by at least nine recent prevention of future death reports, delays in publishing an updated Mental Capacity Act Code of Practice and the continued postponement of Liberty Protection Safeguards.
They were told during their investigation that “the law exists in a fictional zone where there are never any resource complications and everyone is always able to do their job”.
HSSIB review sections 2, 3, 5, and section 136 MHA, section 6 MCA, the case of Sessay and Deprivation of Liberty Safeguards (DoLS).
They are aware that formal consultation on the extension of powers available to professionals in different situations and settings under the MHA is planned, which will include those working in urgent and emergency care services. They note that the consultation will include, but will not be limited to, consulting on the operation of sections 135 and 136 powers.
HSSIB summarise their findings as follows:
- There is an absence of clear legal powers to lawfully prevent vulnerable individuals from leaving the ED while awaiting assessment or admission.
- This legal ambiguity exposes patients to increased risk of harm and/or being unlawfully deprived of their liberty, and places staff in a position of uncertainty when attempting to manage safety.
- For those requiring formal admission to a mental health hospital, an application under the Mental Health Act 1983 cannot be completed until a bed has been identified, which can take days.
- Staff and organisations reported they are often faced with choosing “the least harmful way to break the law” in order to try and keep patients safe.
- EDs are not designed to provide therapeutic mental health care and prolonged stays may worsen patients’ conditions and create challenges in maintaining a safe environment for everyone.
In light of this, HSSIB have made two safety recommendations at this stage – one to DHSC and one to CQC:
- DHSC – to urgently review the current legal framework and address the current legislative gaps in emergency care for people in mental health crisis and clarify the extension of legal powers for health professionals to hold someone in the emergency department.
- CQC – to work with stakeholders to produce a position statement on existing legal powers, and the expectations for support for staff, for the care of people experiencing a mental health crisis in emergency departments (including mental health emergency departments and mental health crisis assessment services), who are not detained under a formal legal framework. This should include a review of current guidance and existing powers to help support safe, consistent, and legally compliant care in the absence of comprehensive legislation, while minimising harm and addressing the unique challenges of prolonged stays in the emergency department.
They are continuing with their exploration of the care of patients in crisis who attend EDs. We await their final report (anticipated to be available in summer 2026) and the responses of DHSC and CQC.
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