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

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

By Ellen Lubensky, Esq. — Attorney & Mental Health Reform Advocate

The intersection of law and psychiatry is a complex space. The convergence of clinical judgment, legal standards and precedent, and the ethical obligations of psychiatrists and other mental healthcare providers can often muddy the waters of mental healthcare. Tensions can arise when clinicians breeze past their ethical obligation to obtain informed consent, especially with patients who may seem unable to comprehend a treatment plan or provide the necessary consent.

However, overlooking the importance of legal standards in mental healthcare can drastically impact care outcomes for patients, not to mention the patient’s sense of dignity and autonomy. In many areas of mental health, patient rights have become negotiable, and many patients are not provided sufficient information to advocate for themselves.

The challenge of subjective diagnosis and decision-making

Psychiatric treatment differs from other areas of medicine because diagnoses are often made based on subjective symptom reporting and limited observation, which can open the door to variability in interpretations of mental health symptoms and conditions. These subjective diagnoses can guide treatment decisions for years, sometimes leading to harmful treatment regimens that can cause years of upheaval for the patient physically, psychologically, and professionally.

The margin for error in diagnosis needs to be more than simply theoretical, even in mental healthcare. Clinicians must be guided by more than subjective symptom reporting and educated hunches.

The importance of the informed consent process

Informed consent, the legal requirement to educate patients about the possible side effects, efficacy, long-term effects, risks, and benefits of a chosen treatment, helps make mental healthcare less about guesswork and overriding the rights of patients and more about adhering to ethical standards. Patients should receive clear, concise disclosures about the benefits, risks, and alternatives to a proposed treatment plan. 

Yet, although informed consent follows legal precedent, the practice often falls short.

Many mental health clinicians will point the finger at time constraints, pressure in emergency situations, or the perceived competency of a patient to give informed consent as reasons why the practice is often glossed over. Stakes and pressure can be high in psychiatric settings, and time is often of the essence, so patients may feel as if they cannot refuse treatment. 

For some clinicians, the idea of “informed consent” amounts to little more than a signed consent form. This does not qualify as truly informed consent.

The limits of legal accountability

Accountability in mental health has legal limitations. Malpractice laws apply broadly across all areas of medical practice, but psychiatric malpractice cases can frequently be difficult to litigate, and the harm of a misdiagnosis or the wrong treatment can sometimes take years to reveal itself. The complexities of medical malpractice and negligence in mental healthcare can make it hard for patients not only to advocate for themselves and prove decision-making capacity but also to seek recourse when something goes wrong.

Yet, despite the litigation difficulties, responsibility should remain paramount in the psychiatric space. There is a legal framework in place to protect the patient’s right to make an informed decision about their own care, guidelines around least-restrictive care, and laws about patient autonomy. However, limited public awareness of patient rights can leave patients and their families in situations where the wrong diagnosis or treatment regimen can derail their care.

The need for patient-centered care

Although there are legal and contractual parameters in place to protect patients, they may not be enough to fully protect those experiencing mental health concerns. There must be a renewed commitment to stronger communication between clinicians and patients, as well as to patient education. Patients should feel empowered to choose the treatment regimen that works best for them, make those decisions based on clear, thorough information, and have the right to ask questions or seek second opinions without fear of retribution or being ignored.

With a more person-centered approach to mental health, the gaps between the legal and the ethical can be bridged. This approach makes mental healthcare patients not just a number, but active participants in their care.

While the crossroads of law and psychiatry may always carry some level of complexity, patient rights should remain a constant. Upholding the rights of patients to have autonomy, knowledge, and dignity in their care is the basis for remaining an ethical provider.

As the mental health space continues to evolve with the times, our conversations about patient rights must evolve as well. Medical practitioners in mental health must remain committed to compassion, patient-centered care, and transparency to keep mental healthcare as ethical as possible.

— Ellen Lubensky, Esq. is an attorney and mental health reform advocate working at the intersection of law, patient rights, and psychiatric care accountability. With over 20 years of legal experience—including work in Social Security Disability and medical malpractice—she brings a legal-first lens to a space typically dominated by clinicians. Her mission is to increase transparency, accountability, and informed consent in psychiatric treatment, with a particular focus on the risks of benzodiazepines and antipsychotics, misdiagnosis, and the lack of withdrawal support.