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France

Restrictions of freedom

Involuntary internment

The right to freedom of movement is a principle of constitutional value. Article 66 of the French Constitution states that: “No one can be arbitrarily detained. The judicial authority, guardian of the freedom of the individual, shall ensure compliance with this principle in the conditions laid down by statute” [1] . Furthermore, the right to freedom of movement is ensured by international treaties that are directly applicable before French Courts [2] .

In the French legal system, the protection of the person’s right to freedom of movement is established by different laws. Provisions to protect the rights of people in need of psychiatric care are determined in the Law of 5 July 2011 [3] that thoroughly reformed involuntary psychiatric internment. Provisions to protect the rights of persons in need of geriatric care are laid out in the law of  2 January 2002 [4] .

Provisions for the protection of rights of persons in need of psychiatric care

In France, legal provisions on involuntary internmentstricto sensuonly apply to involuntary internment in psychiatric institutions. This primarily means that those provisions do not apply to involuntary internment in hospitals or in nursing homes. It also means that those legal provisions mainly apply to people with mental disorders, and rarely to people with dementia, since few people with dementia reside in psychiatric hospitals.

Until recently, involuntary psychiatric internment (13 % of internments in psychiatric institutions) was governed by the Law of 27 June 1990 [5] . This law distinguished between two situations: involuntary internment when there is a threat to the person him/herself (hospitalisation à la demande d’un tiers / involuntary internment at a third party request) and involuntary internment when there is a threat to other individuals or to public order (hospitalisation d’office) [6] .

A new law entered into force on the 1 st August 2011 [7] . This law reaffirms that mental health disorders cannot justify restraining the person’s rights; thus, any restriction on the exercise of individual freedom must be proportionate, necessary and adapted to the person’s mental state. What’s more at every step of the procedure, the person must be informed of his/her rights and the reasons why s/he is kept against his/her will [8] .

The Law of 5 July 2011 contains three main innovations:

Firstly, in order to reduce the number of internments, it introduces the notion of “soins psychiatriques sous contrainte” (involuntary psychiatric care). Beside full-time internment, it enables involuntary part-time internment (e.g. day care or night care), involuntary outpatient care, and involuntary home care (with frequent consultations and therapeutic activities).

Secondly, in order to compensate for the frequent lack of a third party requesting the person’s internment, the law creates - in case of serious and impending danger for the person – the possibility of involuntary internment without any third party request even if there is no threat to public order.

Thirdly, in order to comply with the obligation imposed by the French Constitutional Council, the law initiates a systematic control by the common law judge of the appropriateness of every full-time internment within 15 days.

Involuntary psychiatric care when there is a danger for the person him/herself

Conditions for involuntary psychiatric care

According to article L. 3212-1 of the Public Health Code "a person suffering from mental disorders may require psychiatric care by decision of the director of a care institution [...] only if the two following conditions are met:

His or her disorder renders his or her consent impossible;

His or her state requires immediate treatment."

People entitled to request the internment are (a) family members of the person, (b) the guardian/curator of the adult under legal protection, or (c) anyone acting in the person’s best interest (with the exception of any person employed in the psychiatric institution).

General procedure for involuntary psychiatric care

Before admission

The request must be accompanied by two medical certificates. The first certificate cannot be issued by a doctor employed by the psychiatric institution and must give details of the person's mental condition and explain why his/her state requires treatment. If the second certificate confirms the first one, the director of the psychiatric institution pronounces the admission.

After admission

An initial phase of full-time internment (up to 72 hours) is systematically implemented in order to assess the person’s mental state and to ascertain the necessity of involuntary psychiatric care.

One psychiatric assessment must be carried out during the first 24 hours; another assessment must take place within the first 72 hours of internment.

If one of those assessments concludes that the person does not need psychiatric care, the director of the institution must release the person [9] . If the necessity of psychiatric care is established, a care programme is proposed by the psychiatrist and decided by the director; whether in the form of full-time or part-time internment, or through outpatient care, home care or therapeutic activities.

Between the 6 th and the 8 th day after admission a new assessment takes place, in order to verify that the care programme is still adapted to the person’s needs. On the basis of this assessment, the director can maintain the care programme for a one month period. S/he can also decide to adapt the care programme e.g. to turn partial internment into full-time internment or to turn full-time internment into outpatient care [10] .

Every month a detailed medical certificate must assess the evolution of the disorder and indicate clearly whether the conditions for an involuntary care programme are still justified. When the period of involuntary psychiatric care is longer than a year, the person’s mental state must be examined in detail by acollègecomposed by one psychiatrist involved in the care programme, one who is not, and one member of the psychiatric team.

At any time, the person’s opinion can be sought and the psychiatrist can propose to modify or terminate the care programme in order to comply with the mental state of the person.

Procedure in case of péril grave et imminent (serious and impending danger) [11]

Exceptionally and in case of a “grave and impending danger” to the person’s health, one of the persons mentioned in 1.1.1. can make a request on the basis of only one certificate that can be provided by one of the institution’s psychiatrists. In that case, the two medical certificates produced within the 72-hour initial period must be delivered by different psychiatrists.

In the same conditions of “grave and impending danger”, if those people are not able to lodge a request, the director of the psychiatric institution may decide to proceed with involuntary internment on the basis of one medical certificate that cannot be issued by one of the institution’s psychiatrists.

Control by the judge

Right to appeal

An appeal against the involuntary care programme [12] may be lodged at any time by simple request to thejuge des libertés et de la détention (liberty and custody judge) of the place where the psychiatric institution is located. The right to appeal applies to full-time internment as well as to part-time internment, outpatient care, home care and therapeutic activities.

The people who are entitled to lodge an appeal are (a) the person him/herself, (b) the spouse or partner, (c) any relative, (d) any person acting in the best interests of the person, (e) the guardian, (f) the person who initiated the request for internment, and (g) the local public prosecutor. Thejuge des libertés et de la détentionmay also introduce a control on his/her own initiative if alerted (or notified) by a third person.

Specific control in case of full-time internment

The new law stipulates that an involuntary full-time internment cannot be maintained for more than 15 days without being controlled by the judge. In order to ensure the appropriateness of the full-time involuntary internment, thejuge des libertés et de la détentioncan order a complementary assessment to be made by two psychiatrists at two different times.

In principle, the judgment shall be delivered in open court. The person in psychiatric care shall be heard (s/he can be assisted by a legal counsel/lawyer) at theTribunal de grande instance(regional Court); if the situation renders it impossible, the hearing may take place at the hospital or by videoconference. If the hearing is contrary to doctor’s order, the person is represented by his/her legal counsel.

Thereafter, thejuge des libertés et de la détentionmust control both the necessity and the proportionality of the measure according to the same procedure every 6 months.

The end of involuntary psychiatric care

The person must be released if:

the request is vitiated (rendered invalid) by formal irregularities;

a decision made necessary by the procedure is not completed within the allocated time;

the end of involuntary psychiatric care is proposed by the psychiatrist and decided by the director of the psychiatric institution;

the judge decides that the care programme is no longer adequate in the circumstances.

Involuntary psychiatric care when there is a threat to other individuals or to public order

Procedure

Thepréfet(local representative of the government) can order involuntary psychiatric care for a person:

if s/he requires psychiatric care;

and s/he is seriously disturbing public order or is a threat to the safety of other individuals [13] .

A medical certificate (delivered by a psychiatrist not employed by the institution) must state the grounds for a psychiatric care [14] .

After admission, involuntary psychiatric care in case of public disturbance or dangerous behaviour follows the same procedure as described in 1.1.2. apart from the fact that thepréfetdecides, not the director of the psychiatric institution. If thepréfetdecides not to follow the psychiatrist’s advice, a new medical certificate must be issued by a second psychiatrist.

After the first 72 hours, psychiatric care can be prolonged by thepréfetfor a period of 1 month. It can subsequently be prolonged for 3 months and then for 6 months according to the same procedure.

The end of psychiatric care

People mentioned in 1.1.4. can make a request to thejugedes libertés et de la détentionto review or to put an end to the measure.

The measure ends:

when the request is vitiated by formal irregularities;

a decision made necessary by the procedure is not completed within the allocated time;

the end of involuntary psychiatric care is proposed by the psychiatrist and decided by the director of the psychiatric institution;

when the judge decides that the care programme is no longer adequate in the circumstances;

when decided by theCommission Départementale des Hospitalisations Psychiatriques(regional psychiatric hospitalisation committee).

At any time, thepréfetmay decide to assess the mental state of any interned person in order to review their situation. The medical expert must not be employed by the institution and is chosen from a list of experts.

Provisions for the protection of the rights of people in need of geriatric care

With regarding to social and medical-social facilities (e.g. nursing homes), theLlaw of 2 January 2002 introduced in the Code de l’action sociale et des familles(social action and family code) that “the exercise of individual rights and liberties is guaranteed to any person in institutional care […]. [People] are insured of: the respect of their dignity, their integrity, their privacy, their intimacy and their security” [15] .

People with full capacity

As long as the person is able to express his/her will, s/he can freely choose to enter and to leave the social or medical-social facilities [16] . Put simply, s/he cannot be interned against his/her will.

The law provides tools to ensure the exercise of the client’s rights. Every client must receive the livret d’accueil(resident’s booklet), which contains the Charte des droits et libertés de la personne accueillie(Charter of the residents’ rights and liberties) and the rules governing the functioning of the establishment [17] . Moreover, acontrat de séjour (residence agreement) must be established. This agreement must contain the person’s opinion regarding the nature and objectives of the care programme.

People under legal protection

When the person is unable to express his/her will, the legal framework is to be found in the new guardianship law [18] .

According to this law, the guardian or the curator cannot decide on the person’s behalf to move the latter into a social or medical-social facility without the person’s consent or assent [19] , except when there is a serious threat to the person’s health. But even in that case, the guardian must inform the guardianship judge [20] .

When there is a conflict between the person and his/her guardian regarding the person’s place of residence, the advice of the latter cannot substitute the opinion of the person; s/he must obtain the authorisation of theConseil de famille(family council) or the guardianship judge.

 

 

People without legal protection

However, as noted in the Third Alzheimer’s Plan, “while the new provisions of the 5 March 2007 law respond to situations of accommodation against the client’s will or without their consent [...], those provisions only apply to people under guardianship.” [21] . Actually, no provisions exist when the person cannot consent to his/her admission, or when his/her capacity to decide is unclear, and when the person is not under guardianship.

Coercive measures

Moreover, as the Law of 2 January 2002 emphasises the clients’ right to security, the clients’ rights to freedom of movement is sometimes challenged within the institution. According to the Third Alzheimer’s Plan: “In the client’s own interest, caring for the client may involve using techniques that seriously restrict his/her freedom (closed units, magnetic bracelets, restraint belts). Without questioning medical protocol and the reality of these methods being indicated, it must be admitted that the consequent deprivation of liberty must be legally supervised. This question is familiar in the field of psychiatry. But the legal provisions in force in this area do not apply to medical-social institutions. The result is a legal vacuum that needs to be filled” [22] .

Mistreatment/abuse

Definition

In France, national reports on mistreatment have emerged in the last ten years. They were aimed at analysing where those acts were committed and at identifying the victims as well as the offenders.

Despite the fact that no legal definition of mistreatment can be found within the Criminal Code, the definition given in 1992 by the Council of Europe [23] seems to be generally accepted [24] . This definition specifies the different forms of mistreatment: physical, sexual, psychological or financial abuse; negligence, abandonment and deprivation.

Professional secrecy

As a rule, the doctor is bound to professional secrecy. However, it is his/her duty to take the necessary measures to protect the patient from being abused [25] .

In case of a person of particular vulnerability, defined in the Criminal Code as being one who is “unable to defend him/herself due to his/her age or physical/mental state”, the doctor notified of the abuse should inform the relevant authorities.

With the necessary approval of the victim or the family, the doctor is given the opportunity to notify theprocureur de la République(public prosecutor) of the abuse.  The doctor must report the facts and not the name of the offender.

Sanctions

The general framework is provided by theprincipe delégalité des délits et des peines(principle of legality of criminal offences and penalty) which requires that only the relevant punishable conducts described in the Criminal Code may be punished. Under this provision, a few acts are defined as acts of mistreatment. They may be both voluntary and involuntary, and committed by a natural or a legal person.

More specifically, the Criminal Code expressly covers the protection of people of particular vulnerability. In this respect, alongside general incriminations (physical and sexual mistreatment, breach of trust…), the protection of vulnerability is envisaged in two ways:

it includes vulnerability as an aggravating circumstance of the offence. This means that the penalty imposed on the offender is aggravated when the victim is recognised as being particularly vulnerable.

it also creates specific punishable offenses. Conducts such as neglect (wherever it takes place) and minor acts of violence may be considered as offences solely on the basis of the particular vulnerability of the person. It must be noted that for minor acts of mistreatment, such vulnerability must be known to the offender or be visible.

In any case, both the length of the sentence and the fine depend on the gravity of the act of mistreatment, on the consequences on the person’s body and mind and on the level of vulnerability of the person.

Driving

Obligation to inform the person

The doctor cannot forbid a person to drive. Nevertheless, the doctor is legally bound to inform and warn the person of the risk that a treatment or a cognitive impairment may affect his/her ability to drive e.g. frequent or serious risks that are normally foreseeable [26] . At every medical consultation or when modifying treatment, the doctor must renew the information. The doctor may be liable under civil or criminal law if it is proved that s/he failed to inform the person of the risks normally foreseeable. Nevertheless, it is still the person’s responsibility to inform the relevant authorities.

When the person’s mental state renders the expression of his/her will impossible, thepersonne de confiance(trustee/trusted person), if s/he has designated one, can receive the information in order to help the person.

The Insurance Code requires, for running contracts, that any change in circumstances that may increase risks or create new ones be declared   [27] . If people hide the risk from the insurer, the contract may be considered void and in case of traffic accident, they run the risk of not being insured and reimbursed.

Medical assessment

With the exception of a few categories of workers, people do not need to pass a medical examination to be issued with a driving licence [28] . Under the provisions of the Highway Code, once the driver’s license has been issued, thepréfet, on the basis of convincing relevant information that someone may be unable to drive, may decide to order a medical examination by theCommission médicale primaire départementale (departmental primary medical commission) to assess the person’s mental state. Thepréfet can also order an assessment if the person is involved in a traffic accident.

When there is a danger for the person’s health and security, the doctor, a member of the family or a relative may also send a request for medical examination to theCommission médicale primaire départementale.

Based on that medical assessment, the préfetmay pronounce the renewal of the licence with regular medical control, the suspension or the revocation of the driving licence [29] .

Acknowledgement

Harold Kasprzak, Programme Assistant, Social Studies Department, Fondation Médéric Alzheimer, Paris

Fabrice Gzil, PhD, Manager, Social Studies Department, Fondation Médéric Alzheimer, Paris

Acknowledgment to Federico Palermiti, Programme Manager at Association Monégasque pour la Recherche sur la maladie d’Alzheimer (AMPA), Monaco, for his kind advice and careful review of the manuscript.

[1] Constitution de la Ve République française du 4 octobre 1958

[2] Convention de sauvegarde des droits de l’homme et des libertés fondamentales / Convention for the Protection of Human Rights and Fundamental Freedoms, article 5

[3] Loi n°2011-803 du 5 juillet 2011 relative aux droits et à la protection des personnes faisant l’objet de soins psychiatriques et aux modalités de leur prise en charge

[4] Loi n°2002-2 du 2 janvier 2002 rénovant l’action sociale et médico-sociale

[5] Loi n°90-527 du 27 juin 1990 relative aux droits et à la protection des personnes hospitalisées en raison de troubles mentaux et à leurs conditions d'internement

[6] In 2008, the first procedure applied to approximately 60,000 people each year, the second for 10,000 people each year.

[7] Loi n°2011-803 du 5 juillet 2011 relative aux droits et à la protection des personnes faisant l’objet de soins psychiatriques et aux modalités de leur prise en charge

[8] Code de la santé publique, article L.326-3

[9] Code de la santé publique, article L. 3212-4

[10] When outpatient care is decided, the psychiatrist in charge of the person establishes a timetable in order to regularly monitor the person’s mental state within the hospital. In case of failure to cope with the timetable, the director of the institution notifies thepréfet (local representative of the government). The latter can order a new internement.

[11] Code de la santé publique, article L. 3212-1 sq.

[12] Code la santé publique, article R. 3211-8

[13] Code de la santé publique, article L. 3213-1

[14] In case of impending danger to the safety of individuals, a person may be interned on the basis of a medical certificate by the Mayor or in Paris by thecommissaire depolice (Police commissioner). Thepréfet must then be notified within 24 hours in order to decide whether involuntary psychiatric care is justified.

[15] Code de l’action sociale et des familles, article L. 311-3

[16] Code de l’action sociale et des familles, article L. 311-3. 3°

[17] Code de l’action sociale et des familles, article L. 311-4

[18] Loi n° 2007-308 du 5 mars 2007 portant réforme de la protection juridique des majeurs

[19] Code civil, article 459-2

[20] Code civil, article 459-4

[21] Plan Alzheimer 2008-2012, mesure 39

[22] Ibid.

[23]  “A non-accidental act or omission, which undermines the life, the physical and psychological integrity of an older person or harms the development of his or her personality and or undermines or damages his or her financial security”.

[24] A. Koskas, «Rapport de la mission sur la maltraitance financière à l’égard des personnes âgées dans les établissements sanitaires, sociaux et médico-sociaux », 2011.

[25] Code de déontologie médicale, article 44.

[26] Code de la santé publique, Article L. 1111-2

[27] Code des assurances, article L. 113-2

[28] Code de la route, articles R. 221-10 et R. 221-14

[29] Article R. 221-14 refers to a ministerial decree of the 7 th May 1997 that foresees a list of affections that allows thepréfet to decide on the suspension or the withdrawal of the driving licence. If Alzheimer’s disease is not explicitly mentioned this procedure may  nevertheless apply to people with cognitive impairment.

 

 
 

Last Updated: mercredi 14 mars 2012

 

 
  • Acknowledgements

    The above information was published in the 2011 Dementia in Europe Yearbook as part of Alzheimer Europe's 2011 Work Plan which received funding from the European Union in the framework of the Health Programme. AE also gratefully acknowledges the support it received from Fondation Médéric Alzheimer for its project on restrictions of freedom and for the publication of its Yearbook.
  • European Union
  • Fondation Médéric Alzheimer
 
 

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