The absence of clear legal powers to prevent people suffering mental health crises from leaving NHS emergency departments has forced lawyers to train healthcare professionals to break the law ‘in the least harmful way’. That is one conclusion of an investigation by the Health Services Safety Investigations Body (HSSIB), which yesterday warned that a ‘significant legal gap’ was putting patients in mental health crisis at risk – and creating an impossible choice for staff trying to keep them safe.

‘Most healthcare professionals described use of physical and chemical restraint to try and stop people leaving, despite knowing it is an unlawful deprivation of liberty, because it was considered the “least worst” scenario,’ the report said.

The investigation was told that the law ‘exists in a fictional zone where there are never any resource complications and everybody is always able to do their job’.

Law Society president Mark Evans said: ‘Legal grey areas in mental health care leave patients without proper safeguards unable to access justice. When staff are forced to choose between breaching human rights or letting a vulnerable person walk away from care, the law fails patients and professionals alike.’

The safety investigations body urges the Department of Health and Social Care to review the legal framework, address gaps and clarify legal powers for healthcare professionals to detain people in the emergency department. The Care Quality Commission is told to produce a position statement on existing legal powers.