Many people have experienced psychiatric harm or misdiagnosis from mental health clinicians or therapists. Ellen Lubensky is just one such person. Her misdiagnosis and the subsequent harm caused by years of taking the wrong medication have driven her to become a staunch advocate for holding mental health systems accountable and educating people about informed consent.
An attorney and mental health reform advocate, Lubensky has survived 28 years battling the devastating effects of medication harm. Her own story involves a misdiagnosis and eventual tardive dyskinesia, a movement disorder caused by long-term use of certain medications.
With over 20 years of legal experience, including work in Social Security Disability and as a medical malpractice lawyer, Lubensky brings a legal-first lens to a space typically dominated by clinicians’ thoughts and opinions. Now, she is channeling her expertise into change in the mental health space, demanding truth and accountability from medical professionals.
From misdiagnosis to disability
Lubensky’s own story begins with a mental health misdiagnosis. She was prescribed psychiatric medication that, over three decades of her life, left her in physical decline.
“I woke up and realized that I needed a change, but even as a medical malpractice attorney, I did not know where to look. I looked into holistic options. I started asking questions, but I was not certain what questions to ask,” Lubensky says.
Today, Lubensky is carefully tapering off the harmful medication and has moved towards more diet-based healing. Along with addressing her physical needs, she felt empowered to address the problems within the mental healthcare system that led to her medication injuries in the first place.
“There needs to be an increase in transparency, accountability, and informed consent in psychiatric care,” she says.
Lubensky is speaking publicly and writing to push the mental health clinicians to move beyond vague information and “coercive consent.”
Psychiatrist malpractice and what needs to change in the standard of care
Malpractice claims in the mental health industry mirror those in other medical care spaces. Medical malpractice claims require proving a patient-provider relationship, a breach of care standards, resulting harm, and causation. Psychiatric malpractice claims are the same.
However, there is a sense of immunity among mental health providers because malpractice suits against them rarely succeed unless there is a resulting death, seizure, or other substantial injury. Psychiatric medical malpractice has one of the lowest rates of litigation among all medical fields, with the vast majority of physicians winning cases that make it to trial.
Knowing that people like her face a formidable foe, Lubensky draws her inspiration from disability law, where protections under the Americans with Disabilities Act (ADA) emphasize reasonable accommodations and non-discrimination principles that can often be ignored in psychiatry in favor of quick treatments and assumptions that people experiencing a mental health issue cannot be their own best advocates.
“Failure to diagnose properly and improper treatment can exacerbate harm,” says Lubensky. “We need to hold the system accountable for misdiagnoses, wanton prescribing of psychiatric medications, and failure to follow informed consent.”
The informed consent component of Lubensky’s platform is paramount. When providers use complex medical jargon, pressure vulnerable patients, or omit risks when discussing medications, they violate their legal duty to ensure voluntary, informed consent to treatment.
Action and advocacy
Lubensky has worked hard to humanize the mental health malpractice crisis.
“I want to challenge the misconceptions surrounding mental health care and medication,” she says. “I want physicians to realize that vague information and brief warnings are not enough. True informed consent requires deeper discussions.”
Lubensky’s message has resonated with other people who have experienced harm from being misdiagnosed or prescribed a medication that proved ultimately harmful. She believes that with widespread education for patients, clinicians, and law firms, information about holistic treatment options, and a push for patient safety through accountability, real change can finally begin to affect the mental healthcare space.
“Disability laws like the ADA offer a blueprint,” Lubensky explains. “Providers can be held liable if their negligence increases the risk of harm to the patient, even if the patient has preexisting conditions.”
Precedent demands full disclosure of risks. In the psychiatric field, that means disclosure of dependency possibilities, withdrawal expectations, and irreversible effects such as the ones Lubensky has encountered.
A path forward in mental health care
Lubensky’s platform represents a possible path forward for psychiatric care, one that advocates for informed consent and causes less harm.
“Care needs to be person-centered,” she says. “I am providing one voice to draw attention to the blind spots in psychiatry.”
Armed with knowledge of the law and the resilience necessary to survive decades of medical harm, Ellen Lubensky is well-positioned to spread awareness of what occurs within the mental health industry and hold providers accountable.
