On 6 March 2020, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Cour de Cassation (first civil division, case no. 273 of 5 March 2020). This application was made on behalf of Éric G. by Raphaël Mayet, Attorney at the Versailles Bar. It was registered by the general secretariat of the Constitutional Council under no. 2020-844 QPC. It relates to the conformity with rights and freedoms that the Constitution guarantees of Article L. 3222-5-1 of the Public Health Code, in its formulation resulting from Act No. 2016-41 of 26 January 2016 relating to the modernisation of our healthcare system.
Having regard to the following texts:
- the Constitution;
- Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
- Institutional Act No. 2020-365 of 30 March 2020 on emergency measures for responding to the Covid-19 epidemic;
- the Public Health Code;
- Act No. 2016-41 of 26 January 2016 on the modernisation of our healthcare system;
- the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;
Having regard to the following documents:
- the observations on behalf of the applicant by Raphaël Mayet, registered on 16 March 2020;
— the observations of intervenors on behalf of the Ligue des droits de l’homme association, by SCP Spinosi et Sureau, Attorney for the Conseil d’État and for the Cour de Cassation, registered on 30 March 2020;
- the observations of the Prime Minister, registered on 2 April 2020;
- the observations of intervenors by the Cercle de réflexion et de proposition d’actions sur la psychiatrie association, registered on the same date;
- the observations of intervenors on behalf of the Avocats, droits et psychiatrie association by Corinne Vaillant, Attorney at the Paris Bar, registered on the same date;
- the second observations on behalf of the applicant by Raphaël Mayet, registered on 6 April 2020;
- the second observations of intervenors on behalf of the Cercle de réflexion et de proposition d’actions sur la psychiatrie association by Jean-Marc Panfili, Attorney at the Montauban Bar, registered on 9 April 2020;
- the observations presented on behalf of the Centre hospitalier intercommunal de Poissy Saint-Germain-en-Laye, party to the dispute when the application for a priority preliminary ruling on the issue of constitutionality was made, by SCP Baraduc-Duhamel-Rameix, Attorney for the Conseil d’État and for the Cour de Cassation, registered on 20 April 2020;
- the second observations of the Prime Minister, registered on 21 April 2020;
- the second observations of intervenors on behalf of the Avocats, droits et psychiatrie association by Corinne Vaillant, registered on the same date;
- the additional documents produced and appended to the case files;
After having heard Raphaël Mayet, for the applicant, Elisabeth Baraduc-Bénabent, Attorney for the Conseil d’État and for the Cour de Cassation, on behalf of the Centre hospitalier intercommunal de Poissy Saint-Germain-en-Laye, Patrice Spinosi, Attorney for the Conseil d’État and for the Cour de Cassation, on behalf of La ligue des droits de l’homme, Camille Vaillant, on behalf of the Avocats, droits et psychiatrie association, Jean-Marc Panfili, on behalf of the Cercle de réflexion et de proposition d’actions sur la psychiatrie association, and Philippe Blanc, appointed by the Prime Minister, at the public hearing of 2 June 2020;
And after having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL DECIDED THAT:
1. Article 3222-5-1 of the Public Health Code, in its formulation resulting from the aforementioned Act of 26 January 2016, stipulates:
“Isolation and immobilisation are actions of last resort. They can only be used to prevent immediate or imminent harm for the patient or other persons, as determined by a psychiatrist, and used for a limited time frame. Their use must be subject to strict monitoring that the institution delegates to healthcare professionals that are designated to perform that role.
“A register is maintained at each healthcare institution that is authorised in psychiatry and designated by the managing director of the regional health agency to provide psychiatric care without consent in application of I of Article L. 3222-1. For each isolation or immobilisation measure used, this registry mentions the name of the psychiatrist that decided on the use of the measure, the date, time, duration, and the name of the healthcare professionals that provided monitoring. The register, which can be established in a digital format, must be presented on demand to the departmental commission on psychiatric care, the Controller-general for places of deprivation of liberty or that authority’s delegated officials, or to members of parliament.
“The institution produces an annual report that discloses the admission practices for isolation and immobilisation measures, the policy made to limit the use of these practices, and evaluation of its implementation. This report is sent to collect the opinion of the users’ commission provided for in Article L. 1112-3 and of the supervisory board provided for in Article L. 6143-1.”
2. The applicant, along with the intervenors, maintains that these provisions, as interpreted by the Cour de Cassation, violate individual liberty as protected by Article 66 of the Constitution, in that they do not provide for systematic jurisdictional control of isolation and immobilisation measures used in psychiatric care institutions, nor for any option of appeal for the benefit of the person concerned. One of the intervenors also opposes these provisions in that they violate the right to effective legal protection.
- In substance:
3. According to Article 66 of the Constitution: “No one shall 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.” Individual freedom, which the judicial authority is charged with protecting, should not be impeded by unnecessary rigour. The infringement to the exercise of this freedom must be appropriate, necessary, and proportional to the pursued objectives.
4. As part of being admitted to an institution providing psychiatric care without consent, isolation involves placing the hospitalised person in a closed room, and immobilisation prevents them from moving. These measures are not necessarily used during an incident of hospitalisation without consent, and as such are not a direct consequence of it. They can be decided without the consent of the person concerned. As a result, isolation and immobilisation constitute a deprivation of liberty.
5. In application of the first section of Article L. 3222-5-1 of the Public Health Code, a person admitted to psychiatric care without consent being placed in isolation or immobilisation can only be decided by a psychiatrist for a limited duration when such measures are the only means to prevent immediate or imminent harm for the person concerned or others. Their use must as such be subject to strict monitoring that the host institution delegates to healthcare professionals designated to perform that role. Moreover, it follows from the two other sections of Article L. 3222-5-1 of the Public Health Code that any healthcare institution charged with providing psychiatric care without consent must, on the one hand, ensure the traceability of isolation and immobilisation measures by keeping a register that mentions, for each time the measures are used, the name of the psychiatrist who made the decision, the date, time, and the names of the healthcare professionals who monitored the patient concerned. This register must be presented on demand to the departmental commission on psychiatric care, the Controller-general for places of deprivation of liberty or that authority’s delegated officials, or to members of parliament. On the other hand, the healthcare institution produces an annual report that discloses the admission practices for isolation and immobilisation measures, the policy made to limit the use of these practices, and evaluation of its implementation. This report is sent to collect the opinion of the users’ commission and of the institution’s supervisory board.
6. By adopting these provisions, the legislator has set the basic conditions and proper procedural guarantees to ensure that placing a patient in isolation or immobilisation, as part of psychiatric care without consent, only takes place when the measures are appropriate, necessary, and proportional to the condition of the person being cared for.
7. If Article 66 of the Constitution requires that any deprivation of liberty be placed under control of the judicial authority, it does not require that the judicial authority receive a referral prior to any measure that constitutes a deprivation of liberty. Consequently, in that they allow for placing a patient in isolation or immobilisation as part of psychiatric care without consent, the disputed provisions do not violate Article 66 of the Constitution.
8. However, individual liberty can only be considered protected if the judge intervenes in the shortest time frame possible. Yet, if the legislator has provided that the use of isolation or immobilisation can only be decided by a psychiatrist for a limited time frame, they did not set limits for this time frame nor did they provide for the conditions outside of a certain time frame for the maintenance of these measures to be subject to the control of the judicial authority. It follows that no legislative provision subjects maintaining isolation or immobilisation measures to control by a judicial jurisdiction under conditions that meet the requirements of Article 66 of the Constitution.
9. Consequently, and without requiring the examination of other objections, the first section of Article L. 3222-5-1 of the Public Health Code must be declared unconstitutional. The same applies, therefore, to the two other sections of this article
- Concerning the effects of the declaration of unconstitutionality:
10. According to the second section of Article 62 of the Constitution: “A provision declared unconstitutional on the basis of Article 61-1 shall be repealed as of the publication of the said decision of the Constitutional Council or as of a subsequent date determined by said decision. The Constitutional Council shall determine the conditions and the limits according to which the effects produced by the provision shall be liable to challenge.” In principle, the declaration of unconstitutionality must benefit the person who brought the application for a priority preliminary ruling on the issue of constitutionality, and the provision declared unconstitutional may not be applied in the proceedings under way on the date of the publication of the decision of the Constitutional Council. However, the provisions of Article 62 of the Constitution maintain the right for the latter both to set the date of the repeal and to postpone its effects, and allowing for challenging the effects that the provision produced before the declaration was made. These same provisions also maintain the Constitutional Council’s power to oppose engaging the government’s responsibility given the provisions declared unconstitutional, or to determine specific conditions or limits.
11. In this case, the immediate repeal of the provisions declared unconstitutional, in that it would block any possibility of placing patients who are admitted for psychiatric care without consent in isolation or immobilisation would bring about clearly excessive consequences. As a result, the date of repeal of the disputed provisions should be postponed to 31 December 2020.
THE CONSTITUTIONAL COUNCIL DECIDES:
Article 1. - Article L. 3222-5-1 of the Public Health Code, in its formulation resulting from Act No. 2016-41 of 26 January 2016 relating to the modernisation of our healthcare system, is unconstitutional.
Article 2. - The declaration of unconstitutionality of Article 1 becomes effective according to the conditions of paragraph 11 of this decision.
Article 3. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned Ordinance of 7 November 1958.
Ruled by the Constitutional Council in its 18 June 2020 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Jacques MÉZARD, François PILLET and Michel PINAULT.
Published on 19 June 2020.