At the Crossroads of Law and Psychiatric Care: Why Patient Rights in Mental Health Care Should Be Non‑Negotiable

Attorney and advocate Ellen Lubensky, Esq.

The modern mental health system sits at a complex intersection between ethics, law, and medicine. For patients, that intersection can either lead to a path of healing and understanding, or, like attorney and advocate Ellen Lubensky, Esq., to a road dotted with hurdles, misdiagnosis, and medical harm.

Lubensky found that her autonomy eroded over the years of following a treatment plan for a condition she didn’t have. The medication that she was prescribed over those years for a mental illness she did not have caused irreparable damage. Now, she is on a mission to educate about informed consent and make sure others do not have to travel the same road that she has.

A misdiagnosis and a mission

Lubensky’s advocacy began with her awakening to a misdiagnosis and a treatment regimen that led to years of confusion, physical decline, and, eventually, a reclaimation of her health and autonomy through tapering and diet-based healing.

“Psychiatric diagnoses are often based on the subjective reporting of symptoms instead of biological markers,” Lubensky explains. “I spent nearly three decades being prescribed psychiatric medications for a condition I firmly believe I never had, and it caused significant harm.”

That harm included tardive dystonia, an often irreversible disorder that causes involuntary movements brought on by the long-term use of certain medications. “I didn’t want to just accept my experience as an isolated incident or simply ‘how things were’ in the industry,” Lubensky says.

Instead, she turned her pain into a platform for advocacy. Today, Lubensky is at the forefront of the fight for patients’ rights in psychiatric care.

A transition from patient to advocate

As Lubensky began to slowly question the treatment she had received and the diagnosis she had been given, she became a vocal critic of what she views as systemic failures in the psychiatric space. “The lack of meaningful informed consent is a glaring issue,” she says.

Informed consent is an ethical and legal process in which a healthcare provider takes care to fully educate a patient on the risks, side effects, and benefits of a suggested course of treatment. It goes along with other patients’ rights, including privacy, confidential treatment plans, psychiatric hospital environments with the least restrictions possible, and other guidelines set forth by the Americans with Disabilities Act (ADA).

However, what should be a cornerstone of ethical medical care has been reduced to a formality in many areas of mental health care. “Patients may receive a brief overview of a medication or quick information about possible risks, but that’s not enough,” says Lubensky.

In psychiatric care, vulnerable individuals can often feel pressured to agree to a treatment or lose autonomy altogether. For informed consent to be truly effective, deeper conversations need to be had.

A legal blind spot

As a lawyer, Lubensky has a deep understanding of the legal gaps within the mental health care industry. While medical malpractice laws apply to all areas of healthcare, successful claims in psychiatry can be hard to come by. Successful litigation can often depend on clear catastrophic outcomes such as death or permanent injury. Even then, many patients can feel left without legal options to protect themselves.

This difficulty in prosecuting mental healthcare providers who cause harm can act as a de facto shield, leading them to continue practicing without fear of legal accountability. As a result, there is less systemic pressure to make what Lubensky and others view as necessary changes.

However, the legal framework for holding these providers accountable already exists — it simply needs to be utilized correctly. Lubensky believes that with better education about informed consent and patient rights, psychiatric malpractice cases will be easier to bring forward and patients will gain more power and autonomy.

Redefining informed consent and the need for dignity

The bedrock of Lubensky’s platform is a call for stronger informed consent adherence. “Patients need full disclosure of potential risks of a proposed treatment, such as side effects, dependency and withdrawal issues, and long-term effects,” she says.

While legal guidelines for the medical community already establish the necessity of informed consent, gaps in public education allow harm to persist. “The standards need to be consistently applied,” says Lubensky. “And people need to understand their right to be informed.”

Lubensky strongly believes that if the doctor who originally misdiagnosed her had followed proper informed consent guidelines, she could have saved herself from nearly three decades of negative, long-lasting medication side effects.

A path toward person-centered care

As Lubensky’s work gains attention, patients, legal professionals, and providers are beginning to better understand the need for reform. Through a resounding call for care to be more person-centered in both her writings and public speaking, Lubensky is helping to put a human face on an ongoing issue in mental healthcare.

“Patient rights should never be negotiable,” says Lubensky. “The consequences of dismissing patient rights to informed consent can last decades.”

Lubensky’s story is both a cautionary tale and a call for necessary action in the mental healthcare space. As long as ethics, the law, and psychiatry continue to intersect, there will be a need for checks and balances, as well as advocacy like Lubensky’s to keep patients safe and their voices heard.