Mental health crisis care and the legal gap in emergency departments
In October 2025, the Health Services Safety Investigations Body (HSSIB) launched two investigations into the safety issues facing people in mental health crisis who come into contact with urgent and emergency care services. An interim report, published in April 2026 due to the urgency of the issues identified, exposes a significant and longstanding legal gap that leaves both patients and frontline staff in an impossible position.
What did HSSIB find?
The central finding of the report is stark: there is an absence of clear legal powers to lawfully prevent vulnerable individuals from leaving the emergency department (ED) of an acute trust while awaiting mental health assessment or admission under the Mental Health Act (MHA). 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. 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.
Why does this problem arise?
When a patient in mental health crisis arrives at an ED, they may need to be assessed for admission to a mental health hospital under the MHA. Delays in these assessments, and/or the lack of availability of mental health inpatient beds once a person has been recommended for admission, can lead to patients remaining in EDs for prolonged periods. For those requiring formal admission to a mental health hospital, an application under the MHA cannot be completed until a bed has been identified, which can take days. During that time, there remains a lack of clarity about whether health professionals can legally hold someone in an ED until they can be assessed or admitted.
In addition, 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. Lord Darzi's 'Independent Investigation of the NHS in England' (September 2024), cited in the report, put it plainly: "bright busy and noisy A&E Departments are completely inappropriate places for someone in mental health distress."
The legal gap in practice
The report sets out in detail why existing legal frameworks fail to provide the authority required to hold individuals experiencing a mental health crisis in ED while they await assessment or admission. Current legal frameworks, including the MHA and the Mental Capacity Act 2005 (MCA), do not provide timely or practical solutions for urgent detention outside inpatient settings.
For example:
- The powers of detention under section 2 or 3 of the MHA only come into force once a patient has been admitted to the hospital named in the application, so they cannot be relied upon whilst a patient is waiting in ED.
- Section 5 of the MHA – an emergency holding power – can only be used for patients already admitted to hospital (including an acute trust), but not in an ED.
- Section 136 of the MHA allows the police to take an individual to, or hold them in, a place of safety and could be used in an ED. However, police could decline to attend when called and the power only lasts for 24 hours. It can be extended by 12 hours, but only for clinical reasons and not because of a delay in finding a bed. Further, it can be potentially traumatising for individuals to be restrained by police in a healthcare setting.
- Section 6 of the MCA provides authority to restrain an incapacitated individual, provided it is a necessary and proportionate response. However, this provision can only be relied upon if the individual lacks capacity to agree to stay in ED and should only be a temporary measure in an urgent situation.
- Options such as granting an urgent authorisation under the Deprivation of Liberty Safeguards (DoLS) or applying for a standard authorisation under DoLS are not usually done in an ED setting as the environment is meant to be a transient one. The report highlights that DoLS cannot be used to a detain a person for purposes of assessment or treatment of mental disorder where they are objecting to admission or treatment. It is therefore highly questionable whether it would be appropriate for a hospital to grant a self-authorisation where the intention is to bring about such an admission, and the only reason that it has not happened is because of a shortage of beds.
- An application to the Court of Protection to authorise a deprivation of liberty can be made but there would need to be very clear evidence as to why there was no other setting available for the patient. However, court applications take time and cost money.
- The court in R (Sessay) v South London & Maudsley NHS Foundation Trust [2011] EWHC 2617 (QB) held that hospitals cannot rely on the doctrine of necessity where a person is being preventing from leaving hospital pending completion of the process of assessment for admission under the MHA.
The result is that staff are left navigating an impossible choice.
Other concerning factors
The report highlights that CQC previously undertook an assessment of mental health services in acute trusts found that staff in acute hospitals were often not clear about the legal process for detaining someone in hospital, and that there was confusion around the MHA and MCA and when to use which piece of legislation. CQC also found that restrictive measures, such as locked doors or physical redirection, were not always recognised as requiring authorisation, increasing the risk that unlawful practices have become embedded in hospital culture.
Ongoing delays in publishing an updated MCA Code of Practice, and the continued postponement of the Liberty Protection Safeguards, have compounded these issues and are reported to be leaving the healthcare system under severe strain.
HSSIB's recommendations
HSSIB recommended that:
- The Department of Health and Social Care urgently reviews the current legal framework and addresses the current legislative gaps in emergency care for people in mental health crisis and clarifies the extension of legal powers for health professionals to hold someone in the emergency department.
- The CQC works 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 who are not detained under a formal legal framework.
Practical takeaways
This report confirms what many ED and mental health staff already know from experience – that the system is placing them in an impossible position, and that patients are being put at risk as a result.
A few key points for healthcare organisations to consider now:
1. Know your current legal position
The report is clear that neither the MHA nor the MCA provides a reliable legal basis for keeping a patient in the ED against their will while awaiting assessment or admission, whether or not they have capacity. Staff should not assume that acting in a patient's best interests provides automatic legal cover.
We offer specialist advice on mental health law and mental capacity law, including the application of the MHA and MCA in ED settings as well as determining the appropriate legal framework for various situations. Our team can advise on when an application to the Court of Protection may be required to obtain lawful authority for detention. Please do get in touch if you need help or advice.
2. Document everything
Given the patient safety risks and possibility of claims for unlawful detention, contemporaneous and thorough documentation of clinical decision-making is essential. If restraint or detention without formal legal authority is occurring, the reasoning and the lack of available alternatives must be clearly recorded. Our safety and learning team can support with robust clinical documentation and governance, and our clinical negligence team can assist healthcare providers facing unlawful detention claims.
3. Establish a collaborative framework between acute and mental health trusts
It is important to establish a clear collaborative framework or protocol between the local acute trust and the mental health trust, setting out the respective clinical responsibilities of each organisation for patients who are in the ED awaiting psychiatric assessment or admission. We have seen difficulties arise in practice where no such document exists, or where existing documents have gaps around division of clinical responsibility between the two organisations.
We are experienced in advising mental health trusts and acute trusts on inter-trust protocols, governance frameworks, and division of clinical responsibility.
4. Work with partner agencies and review escalation pathways
When an individual is brought to the ED under s.136 MHA, disputes may arise between the police and ED staff regarding patient responsibility, the appropriate time for police departure and how to manage the person in the least restrictive manner. Senior representatives from the police, the acute trust and the mental health trust should meet regularly to foster positive working relationships and address safety concerns. Joint escalation protocols must be established, routinely reviewed, and accessible to both police and healthcare staff.
Our experienced mental health lawyers can advise on s.135 and s.136 MHA powers and assist in drafting and reviewing joint escalation protocols between police, acute trusts and mental health trusts.
5. Watch for the next steps
A formal consultation on the extension of powers available to professionals in different situations and settings under the MHA is planned, including for those working in urgent and emergency care services. This will include but not be limited to consulting on the operation of the section 135 and 136 MHA powers. Healthcare organisations should engage with this consultation when it opens.
A final HSSIB investigation report will also follow, with additional findings and safety learning.
