One of the most challenging issues in emergency departments currently, from both a clinical and a legal perspective, is that posed by those awaiting detention under the Mental Health Act 1983 ('the MHA'), where the MHA application for detention cannot be made, due to lack of a bed.
The Health Services Safety Investigations Body (HSSIB) has now published - on 9 April 2026 - an interim report into the safety issues for people experiencing a mental health crisis who come into contact with urgent and emergency care services, looking at these issues in the context of emergency care and the emergency department.
In this briefing, we consider the report's findings and what happens next.
The interim report
The HSSIB's report is an interim report following their investigations, launched in October 2025. The first of two reports, this has been published on an interim basis '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'.
The methodology for the investigation is detailed in Appendix 1 and includes data and literature analysis, together with discussions with a range of stakeholders. The final report is expected to be published in summer 2026 and further input is invited (contact investigations@hssib.org.uk).
What are the investigation findings?
The key investigation findings relate to: bed availability; the lack of a clear legal framework; and environmental issues.
Bed availability: the report notes that a MHA application cannot be made without a bed being identified, since, of course, any application (whether for s.4, s.2 or s.3) needs to be addressed to the hospital where the patient is to be admitted, and reports evidence of delays of 'days' before this can happen.
Legal gap/ambiguity: the report finds that: 'There is an absence of clear legal powers to lawfully prevent vulnerable individuals from leaving the ED while awaiting assessment or admission' and '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'.
Safe environment: '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'.
What are the recommendations?
As a result of its findings, the HSSIB makes two recommendations:
- 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
- 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
Our thoughts
As identified, the relevant legal framework can be complex, requiring a clear understanding of the application of both the MHA and the Mental Capacity Act (MCA), and the interface between the two. This will be particularly important moving forward, as the MHA 2025 changes are phased in. In reality, however, if there are gaps in the law (as opposed to gaps in resources impacting on legal processes being applied/followed) then this is likely to require legislative change to the MHA and/or the MCA. There are inherent difficulties in providing any general guidance or 'position statement', whether through a Code of Practice or otherwise, where decisions need to be made by organisations on a case-by-case basis.
As the MHA 2025 passed through Parliament, changes were introduced in the House of Lords to extend the use of emergency powers, so that, for example, the s.136 power to take to and detain in a place of safety would be extended to health and social care professionals in certain circumstances. These changes were rejected in the House of Commons, so that the MHA 2025 makes no changes to the current emergency powers (other than by removal of the police station as a MHA place of safety). However, a commitment was made (as the report notes at 2.1.16 - 2.1.18) to hold a formal consultation on emergency powers, including, but not limited to s.135 and s.136.
What next?
It will be important for organisations to watch out for any consultation on emergency MHA powers and to ensure they 'have a voice' in the process.
In the meantime, organisations will need to ensure, so far as possible, that there is consistent understanding and approach to these issues and a clear understanding and robust application of both the MHA (including the changes introduced by the MHA 2025) and the MCA across the organisation.
We will continue to keep you updated on any developments and can assist by advising on drafting and implementing policies and processes and provide training on all aspects of the MHA, MCA, the interface and the changes introduced by the MHA 2025.
