Mental health crisis care: legislative challenges in emergency departments (HSSIB report 1 of 2)

Summary

This Health Services Safety Investigations Body (HSSIB) report is intended for healthcare organisations, policymakers and the public to help improve patient safety in relation to safety issues identified for people experiencing a mental health crisis who come into contact with urgent and emergency care services.

This report focuses on the significant legal, policy and safety gap in the care of people in emergency departments (EDs) in mental health crisis. During consultation on this report, concerns were shared with HSSIB about the current challenges in relation to the resourcing and configuration of mental health services that exacerbate challenges faced in the ED.

This is the first of two reports. The second report can be found here.

Content

In October 2025 HSSIB launched two investigations that explore the safety issues for people experiencing a mental health crisis who come into contact with urgent and emergency care services. This interim report was produced due to the early identification of a significant legal, policy and safety gap in the care of people in emergency departments (EDs) in mental health crisis.

It is reported that around 3% of all ED attendances are mental health related. However, people experiencing mental health problems are twice as likely as other patients to remain in the ED for more than 12 hours.

People in mental health crisis may need to be assessed for admission to a mental health hospital in line with the Mental Health Act 1983. Delays in these assessments being undertaken, 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.

Findings

• 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.

HSSIB makes the following safety recommendations:

• HSSIB recommends 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 clarify the extension of legal powers for health professionals to hold someone in the emergency department. This will safeguard people who are currently arriving at the emergency department in a mental health crisis and the staff who care for them to support safe, consistent and legally compliant care.

• HSSIB recommends that the Care Quality Commission 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 (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.