Abstract
The French Republic has had four laws governing the detention of people with a mental illness. The first dates from 1838 and remained in place until 1990. The most recent one was issued on 27 September 2013; it confirmed the role of the judge and strengthened the legal procedures. This new French mental health law is an attempt to find a balance between the protection of patients’ rights and the need for treatment.
On 27 September 2013 France enacted a new mental health law regarding psychiatric involuntary treatment. It is the fourth French mental health law on this matter. The first was issued on 30 June 1838 under the influence of Esquirol, Pinel’s pupil and the father of French psychiatry. This historic law was replaced only on 27 June 1990, after several previous attempts, unsuccessful because of the advantages seen by many in the 1838 law and because of the difficulties in dealing with involuntary treatments in a democratic country. A new law was then issued on 5 July 2011. It introduced an important innovation: the supervision of the limitation of liberty imposed by psychiatric involuntary treatment was shifted from the administrative authority (the prefect, a local representative of the state) to a judge (the Judge of Liberties and Detention). The last law was issued on 27 September 2013 and confirmed the role of the judge in this control, strengthening the importance of legal procedures in this task.
The judicial context of the law of 27 September 2013
As in other democratic countries, this law had to comply with the country’s constitution and the international conventions ratified by the French parliament. The European Convention on Human Rights (ECHR) was very influential in the elaboration of this law. The Convention’s main objective is to protect the individual freedom of European citizens and to control how a state can justify any limitations on freedom it imposes. To reduce the risk of arbitrary decisions, the ECHR imposes judicial control on the limitation of rights by psychiatric involuntary treatment, a disposition with which France did not comply before 2011. The ECHR states that judicial control should be possible at any time and, if needed, repeatedly. Every patient should be able to access judicial review quickly. The ECHR describes in detail the patient’s rights, insisting on the right to information and on the principle of restricting any limitation to liberty to the least needed to allow the necessary psychiatric treatment.
The French constitution was the second strong determinant of the 2011 and 2013 French mental health laws. In 2010 and 2011, the Constitutional Council (the equivalent of the UK Supreme Court) laid down major decisions on this topic. In these rulings the Council decided that the law makers had to reconcile, on the one hand, the protection of the health of patients who are mentally ill and the prevention of public order disturbances (including violence to others) crucial for the preservation of constitutional rights and, on the other hand, the protection of constitutional personal rights (QPC decision number 2010-71 of 26 November 2010, 2011-135 of 9 June 2011, 2011-174 of 6 October 2011, 2011-185 of 21 October 2011 and article L 3211-3 of the Public Health Code; see http://www.conseil-constitutionnel.fr).
The three types of involuntary treatment introduced by the law of 27 September 2013
Three types of involuntary treatment are permitted (Senon et al, 2012a):
psychiatric involuntary treatment by decision of a hospital director at the request of a third party or, without this request, in case of extreme urgency (imminent peril)
psychiatric involuntary treatment at the request of a representative of the state
involuntary out-patient treatment.
Decision of a hospital director
This procedure is used when a patient is diagnosed with a mental disorder needing psychiatric treatment associated with continuous custody (full-time hospitalisation) and when, because of this mental disorder, the patient is not able to give consent to that treatment. The usual procedure used in these cases is to find a third party who can decide on the patient’s behalf (that is to say, in the logic of the French mental health law, to decide in the patient’s interest as the patient would if not impaired by the mental disorder). This type of procedure is called psychiatric treatment at the request of a third party (soins psychiatriques a la demande d’un tiers). In this case, the law requires six certificates: two initial certificates, one certificate after the first 24 hours, one certificate of somatic medical examination, one certificate after the first 72 hours, and one certificate of referral to the Judge for Liberties and Detention.
When no third party is available, the law introduces the possibility of using a procedure unprecedented in France: psychiatric involuntary treatment can be decided by the hospital director without any third-party request, but for a limited period (72 hours).
Request of a representative of the state
The representative in question is generally the ‘prefect’ of the department (the middle level of local government). For this procedure three criteria are required in relation to the patient (Senon et al, 2012b):
the presence of a mental disorder
a need for treatment
a behaviour compromising the person’s safety or seriously threatening public order.
The initial medical certificate has to be issued by a psychiatrist external to the hospital in which the patient will be hospitalised. This certificate has to describe the disorder and give enough evidence to support the fact that it compromises the person’s safety or seriously threatens public order. The local state representative officer has to issue authorisation for this procedure. The 24-hour and 72-hour certificates have to be made by the hospital psychiatrist in charge of the patient’s treatment. Between the fifth and the eighth days of the hospitalisation, a certificate has to be made by this psychiatrist to confirm the procedure for a hearing by the Judge for Liberties and Detention at the 12th day of the hospitalisation. These certificates have then to be issued monthly.
The law also introduces the possibility in extreme urgency of this type of psychiatric treatment by decision of the city’s mayor. In this case the proceeding is grounded on the mayor’s authorisation ordering a provisional hospitalisation. Here again, a detailed medical certificate has to assert that the patient’s mental disorder needs treatment and compromises the person’s safety or seriously threatens public order.
Involuntary out-patient treatment
The 5 July 2011 law introduced the possibility of psychiatric involuntary treatment on the basis of a treatment plan proposed by the treating psychiatrist. This plan has to detail the treatment modalities (day hospital and other out-patient treatments), their frequency and their type. This treatment plan has to be written in reasonable detail but it does not include commitments that are unduly burdensome to the patient’s treatment team. However, the use of force to give medication is not permitted in community clinics or other community settings. The treatment plan has to be modified each time a substantial change is implemented in the patient’s treatment. It has to be elaborated by the psychiatrist at the hospital in which the patient has been hospitalised at the first stage of treatment.
Conclusion
The law of 27 September 2013 represents a new step in psychiatric involuntary treatment in France. One of its main characteristics is to introduce the Judge for Liberties and Detention in the control of treatment without the patient’s consent, shifting to judicial power what was previously an administrative power (Senon & Voyer, 2012). Indeed, it gives to the judge the task of checking if the limitations on individual liberties imposed by the psychiatric involuntary treatment are well adapted to and commensurate with the patient’s therapeutic needs. Decisions of the French Constitutional Council allow the French mental health law to comply with the European recommendations.
References
- Senon, J. L. & Voyer, M. (2012) Modalités et impact de la mise en oeuvre de la loi du 5 juillet 2011: de l’impérieuse nécessité de placer le patient au centre de nos préoccupations. Annales Médico-psychologiques, 170, 693–698. [Google Scholar]
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