Mental health patients held ‘unlawfully’ in A&Es across the country, experts warn

Mental health patients are being held “unlawfully” in A&Es across the country as long waits for care and beds force staff into “fudging” the law, The Independent has been told.

The University Hospital of North Midland Trust has been sanctioned by the Care Quality Commission (CQC) for holding mental health patients without any legal authority.

However, experts have told The Independent, the problem is widespread and occurs across every emergency department in the country with some patients waiting “days” and even “weeks” in A&E.

Dr Chloe Beale, a consultant psychiatrist, said staff were being forced into “fudging it” when it comes to laws around keeping people in A&E while they waited for ongoing mental health care.

Leaders at Barking, Havering and Redbridge NHS Trust have raised repeated concerns in recent months over patients waiting days in their A&E for mental health care.

The CQC raised concerns about the assessment of mental health patients at UHNM following an inspection in October and served the trust with a warning notice.

In a letter seen by The Independent, the CQC said two patients were “restricted within hospital unlawfully”. It said although staff were working in the patient’s best interests in both cases it was clear that legal procedures “were not being followed”.

“Therefore, this can be seen as a significant infringement of any personal or welfare,” it said,

It comes as MPs last week challenged the new mental health minister over the poor access to mental health care in England during a debate in the House of Commons.

Data previously uncovered by The Independent revealed the proportion of mental health patients waiting 12 hours in A&E was almost double that of all other patients.

Reports previously revealed hundreds of children attending A&E each day for mental health concerns, with some waiting in emergency departments for five days.

Barking Havering and Redbridge NHS Trust said in its board papers last week that during one day in October it had 15 people across its emergency departments, one as young as 13, waiting to be seen by mental health specialists.

Five of those patients were left waiting in EDs for more than two days, while one waited a further 10 days for the correct bed to be found.

Dr Beale toldThe Independent the issue of patients being detained unlawfully happened in every hospital.

She said: “It’s partly because of resources because we don’t have enough people to get to do assessments in time, people leave before an assessment or want to leave before an assessment is completed.

“Section 136 [of the Mental health Act] expires after 24 hours, but most of the time because the bed crisis so bad, even if you’ve been assessed to be detained under the Mental Health Act, a bed hasn’t been identified within that 24-hour [window]. The law doesn’t cover that gap.”

She said the law doesn’t tell clinicians what they should do and staff were using the Mental Capacity Act to “fill the gaps” and “fudging it”.

Dr Beale added: “Lots of places don’t have enough 24/7 liaison psychiatry [capacity] yet and even those that do are so stretched they can’t see everybody in a timely manner or can’t get to people quickly.

“There are lots of people who are waiting for psychiatric beds in emergency departments for days, sometimes weeks. So this is happening every single day. It’s everywhere, every single day, and it’s completely hidden, unlawful deprivation of liberty.”

Dr Beale gave evidence to a House of Lords committee last week when it debated extending the use of mental health act “holding powers”, which currently only apply to patients who are admitted to a ward, to A&E also.

However, some clinicians have warned extending powers would not address the issue of under-resourcing within mental health services.

Dr Alex Thomson, a consultant psychiatrist, told The Independent: “In a mental health emergency, delays in access to beds mean that some patients in the UK may be held for an unreasonably long time in the emergency department before admission. Rather than changing the law to authorise these long waits, what’s needed is sufficient investment in mental health services to end delays.”

Tracy Bullock, chief executive of UHNM, said: “Given notable improvements since the last CQC inspection and a demonstrable trust-wide commitment to ensuring the best possible care for patients with mental health issues, we are disappointed that the CQC felt it necessary to retain the formal notice following their most recent visit.

“However, we were pleased that they recognised the progress made in terms of policies and assessment documentation and we are fully committed to working closely with them to ensure that they have the assurance they need in relation to staff fully completing the documentation.

“We are not a specialist mental health service provider but take the mental health of our patients very seriously which is why we are amongst the minority of acute trusts who have appointed specialist mental health nurses. We acknowledge that we need to continue to improve our documentation and processes in order to ensure that we can demonstrate that patient rights are protected at all times. We remain committed to making any necessary changes in order to demonstrate that we continue to live up to our reputation for providing safe and effective care for everyone.”