Decision no. 2012-235 QPC of 20 April 2012

On 8 February 2012, 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 Conseil d'État (decision no. 352667-352668 of 8 February 2012) on behalf of the association "Cercle de réflexion et de proposition d'actions sur la psychiatrie" raising the conformity of the provisions of Article L. 3211-2-1 of the Public Health Code, paragraph II of Article L. 3211-12, subparagraph 3 of paragraph I of Article L. 3211-12-1 and Article L. 3213-8 with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Public Health Code;

Having regard to the Code of Criminal Procedure;

Having regard to Constitutional Council decisions no. 2010-71 QPC of 26 November 2010 and no. 2011-135/140 QPC of 9 June 2011;

Having regard to Law no. 2011-803 of 5 July 2011 on the rights and protection of persons subject to psychiatric treatment and the procedures governing their taking into care;

Having regard to the observations filed on behalf of the applicant association by the SELARL Mayet et Perrault, Attorneys at the Versailles Bar, registered on 23 February and 12 March 2012;

Having regard to the observations of the Prime Minister, registered on 1 and 16 March 2012; 2

Having regard to the observations in intervention on behalf of the Association "Groupe information asiles" by Corinne Vaillant Esq., Attorney at the Paris bar, registered on 28 February 2012;

Having regard to the documents produced and appended to the case files;

Having heard Raphaël Mayet Esq. and Gaelle Soulard Esq. for the applicant association, Mr Vaillant Esq. for the intervener association and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing of 10 April 2012;

Having heard the Rapporteur;

1. Considering that Article L. 3211-2-1 of the Public Health Code, as in force following the enactment of the aforementioned Law of 5 July 2011, provides: "A person who is subject to psychiatric treatment pursuant to Chapters II and III of this Title or Article 706-135 of the Code of Criminal Procedure shall be taken into care:

"1. In the form of full sectioning in an establishment referred to in Article L. 3222-1 of this Code;
"2. In another form involving out-patient treatment, which may include treatment at home, provided by an establishment referred to by Article L. 3222-1 or, as the case may be, stays in an establishment of this type.
"During treatment having the form provided for under subparagraph 2, a treatment programme shall be drawn up by a psychiatrist from the receiving establishment. This programme may only be amended by a psychiatrist involved in the taking into care of the patient in order to take account of the development of his state of health.
"The opinion of the patient shall be obtained before the treatment programme is defined and before any modification thereof during a meeting with the psychiatrist from the receiving establishment in which the former shall receive the information specified under Article L. 3211-3 and shall be informed of the provisions of Article L. 3211-11.
"The programme of treatment shall determine the type of treatment, the locations where it is to be provided and its frequency, subject to the conditions specified by decree of the Conseil d'État";

2. Considering that Article L. 3211-12 of the Code, as in force following the enactment of this Law, provides that the custodial judge may be seized at any time to issue a summary order requiring the immediate cessation of psychiatric treatment without the consent of the patient; that pursuant to paragraph II of this Article:

"The custodial judge may only issue a ruling after he has received the opinion of the board referred to in Article L. 3211-9 of this Code:

"1. Where the person is subject to treatment ordered pursuant to Articles L. 3213-7 of this Code or 706-135 of the Code of Criminal Procedure or is subject to treatment pursuant to Article L. 3213-1 of this Code and has already been subject to treatment ordered pursuant to Articles L. 3213-7 of this Code or 706-135 of the Code of Criminal Procedure;
"2. Where the person is subject to treatment pursuant to Article L. 3213-1 of this Code and is currently or has previously been, for a term set by decree of the Conseil d'État, sectioned in a unit for challenging patients referred to in Article L. 3222-3.
"In the cases referred to in subparagraphs 1 and 2 of this paragraph, the judge may only decide to revoke the measure after it has received two expert reports written by psychologists included in the lists referred to in Article L. 3213-5-1.
"The judge shall determine the time limits during which the opinion of the board and the two expert reports provided for under this paragraph shall be submitted within a maximum time limit specified by decree of the Conseil d'État. Once this time limit has elapsed, it shall rule immediately.
"This paragraph shall not apply where the treatment referred to in subparagraphs 1 and 2 ceased more than ten years previously";

3. Considering that pursuant to subparagraph 3 of paragraph I of Article L. 3211-12-1 of the Code, as in force following the enactment of that Law, the full sectioning of a patient may only occur if the custodial judge has been seized in advance by the director of the establishment and sectioning was ordered pursuant to Chapter II of Title I of Book II of Part III of the Code or by the representative of the State in the Department where it was ordered pursuant to Chapter III also of Title I, Article L. 3214-3 or Article 706-135 of the Code of Criminal Procedure, and has ruled on this measure: "Prior to expiry of a time limit of six months after any judicial ruling ordering sectioning pursuant to Article 706-135 of the Code of Criminal Procedure or any ruling adopted by the custodial judge pursuant to Article L. 3211-12 or L. 3213-5 of this Code or pursuant to this Article, where the patient has been subject to full sectioning on a continuous basis after this decision. Any decision of the custodial judge adopted after expiry of this time limit on the basis of Articles 706-135 of the Code of Criminal Procedure, or L. 3211-12 or L. 3213-5 of this Code or pursuant to this Article shall have the effect of recommencing the relevant period";

4. Considering that pursuant to Article L. 3213-8 of the Code, as in force following the enactment of the Law: "The representative of the State in the department may only decide to put an end to psychiatric treatment after he has obtained the opinion of the Board referred to in Article L. 3211-9, provided that two concurring opinions regarding the mental state of the patient have been issued by two psychiatrists chosen under the conditions set forth in Article L. 3213-5-1:

"Where the person is currently or has previously been sectioned pursuant to Articles L. 3213-7 of this Code or 706-135 of the Code of Criminal Procedure;
"Where the person is currently or has previously been, for a term set by decree of the Conseil d'État, sectioned in a unit for challenging patients referred to in Article L. 3222-3 of this Code.
"This paragraph shall not apply where the treatment referred to in subparagraphs 1 and 2 ceased at least ten years previously.
"The representative of the State in the department shall set the time limit before which the opinion of the board and of the two psychiatrists referred to in the first subparagraph shall be submitted, which may not exceed the maximum time limit set by decree of the Conseil d'État. Upon expiry of these time limits, the representative of the State shall decide immediately. The conditions under which the opinion of the board and of the two psychiatrists are to be received shall be determined in the same decree of the Conseil d'État";

5. Considering that the applicant association contests first the regime of psychiatric treatment without consent ordered without full sectioning in accordance with the procedures provided for under Article L. 3211-2-1, secondly the time limit provided for under subparagraph 3 of paragraph I of Article L. 3211-12-1 for review by the custodial judge of the full sectioning ordered or extended by a court and, thirdly the exceptional arrangements provided for under paragraph II of Article L. 3211-12 and Article L. 3213-8 applicable to the revocation of treatment for persons recognised to be criminally insane or who have stayed in a unit for challenging patients;

• WITH RESPECT TO THE APPLICABLE PROVISIONS OF THE CONSTITUTION:

6. Considering that Article 66 of the Constitution provides that: “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"; that when exercising its powers, the legislator may determine the procedures governing the intervention by the judicial authorities that differ in line with the nature and scope of the measures affecting individual freedom that it intends to enact;

7. Considering that pursuant to the eleventh paragraph of the Preamble to the Constitution of 1946, the Nation guarantees to all the right to protection of health; that Article 34 of the Constitution provides that the law determines the rules concerning the fundamental guarantees granted to citizens for the exercise of their civil liberties; that the legislator is free at any time, when ruling on matters within its competence, to adopt new provisions that are in its view appropriate, and to amend previous legislation or repeal it and, depending on the circumstances, replace it with other provisions, provided that when exercising this power, he does not deprive these constitutional requirements of legal guarantees;

8. Considering that the sectioning of a person suffering from a mental illness without its consent must respect the principle enshrined in Article 66 of the Constitution whereby individual freedom may not be restricted to an unnecessary extent; that it is for the legislature to ensure that a balance is struck between, on the one hand, the protection of the health of persons suffering from mental illness and the prevention of breaches of public order necessary in order to safeguard rights and principles with constitutional status and, on the other hand, the exercise of the freedoms guaranteed under the Constitution; that these include the freedom of movement and the respect for private life, protected under Articles 2 and 4 of the 1789 Declaration of the Rights of Man and the Citizen, as well as the individual freedom which Article 66 of the Constitution reserves to the protection of the judicial authorities; that any restrictions imposed on the exercise of these freedoms must be adapted to, necessary for and proportionate with the objectives pursued;

• WITH RESPECT TO ARTICLE L. 3211-2-1:

9. Considering that, according to the applicant association, by allowing psychiatric treatment entailing in particular "stays made in an establishment" to be imposed on a person without being subject to systematic review by the courts, the provisions of Article L. 3211-2-1 of the Code of Public Health violate the constitutional protection of individual freedom;

10. Considering that the aforementioned Law of 5 July 2011 permits a person to be subject to psychiatric treatment without its consent either in the form of "full sectioning" or "in another form involving out-patient treatment, which may include treatment at home, provided by a [psychiatric] establishment" and, as the case may be, any stays in such an establishment; that whilst Article L. 3211-12 of the Public Health Code provides that the custodial judge may be seized at any time to issue a summary order requiring the immediate cessation of a form of psychiatric treatment without the consent of the person receiving the treatment, according to the first subparagraph of Article L. 3211-12-1 of the Code, only psychiatric treatment ordered in the form of full sectioning may not be implemented unless the custodial judge has ordered that it be maintained;

11. Considering first that when a person subject to psychiatric treatment without its consent is not taken into care according to full sectioning procedures, a "treatment programme" is drawn up by a psychiatrist from the establishment; that the patient's opinion is obtained before it is finalised and before any change to this programme during a meeting with the psychiatrist from the receiving establishment during which the former receives the information specified under Article L. 3211-3 and is informed of the provisions of Article L. 3211-11; that the second subparagraph of Article L. 3211-11 of the Public Health Code provides that, where the psychiatrist determines that taking into care on an out-patient basis will no longer enable, having regard in particular to the person's conduct, the provision of the treatment necessary for its situation, it shall "immediately transmit to the director of the receiving establishment a medical certificate supported by reasons proposing full sectioning"; that the last subparagraph of Article L. 3212-4 and paragraph III of Article L. 3213-3 lay down the procedures according to which a decision to take into care pursuant to Title 2 of Article L. 3211-2-1 may be amended to this effect;

12. Considering that according to these provisions, in enabling persons who have not been taken into care under "full sectioning" procedures to be subject to mandatory psychiatric treatment which may entail, as the case may be, stays in the establishment, the provisions of Article L. 3211-2-1 do not authorise that obligation to be enforced against the patient's will; that these persons cannot be administered treatment forcefully nor be accompanied or detained forcefully in order to complete the stays in the establishment provided for under the treatment programme; that no measure of constraint against a person taken into care under the conditions provided for by subparagraph 2 of Article L. 3211-2-1 may be implemented unless the decision to take into care has been transformed in advance into full sectioning; that, under these conditions, the objection alleging the violation of individual freedom is factually misconstrued;

13. Considering secondly that according to the combined provisions of Article L. 3211-2-1 and Articles L. 3212-1 and L. 3213-1, a person suffering from mental illness may not be subject to treatment provided without its consent by a psychiatric establishment, even under conditions of full sectioning, unless "its mental illness means that it is not able to provide its consent" to treatment whereas "its mental condition calls for immediate treatment associated with constant medical surveillance" or where these disturbances "require treatment and compromise the safety of other persons or cause serious disruption to public order"; that under all circumstances the custodial judge may be seized at any time, under the conditions set forth in Article L. 3211-12, to issue a summary order requiring the immediate cessation of that measure; that in adopting these provisions, the legislature ensured that a balance was struck which is not manifestly unreasonable between the protection of health and the protection of public order on the one hand, and individual freedom, protected by Articles 2 and 4 of the 1789 Declaration on the other hand;

14. Considering that according to the above, Article L. 3211-2-1 of the Public Health Code, which does not violate any right or freedom guaranteed under the Constitution, must be ruled constitutional;

• WITH RESPECT TO PARAGRAPH I OF ARTICLE L. 3211-12-1 :

15. Considering that according to the applicant association, in providing that the full sectioning may be extended up to a maximum term of six months without systematic review by a court, subparagraph 3 of paragraph I of Article L. 3211-12-1 of the Public Health Code violates the requirements set forth under Article 66 of the Constitution;

16. Considering that, in its aforementioned decisions of 26 November 2010 and 9 June 2011, the Constitutional Council ruled that the continuation of sectioning without the consent of a person suffering from mental illness for longer than fifteen days without confirmation by a court violates the requirements set forth under Article 66 of the Constitution; that following these decisions, the aforementioned Law of 5 July 2011 inserted Article L. 3211-12-1 into the Public Health Code in particular; that the first three subparagraphs of paragraph I of that Article provide that the full sectioning of a patient ordered by an administrative authority may not be continued unless the custodial judge issues a ruling on this measure within fifteen days;

17. Considering that subparagraph 3 of paragraph I provides that any sectioning order issued by a court pursuant to Article 706-135 of the Code of Criminal Procedure or regarding which the custodial judge has already issued a ruling under the conditions provided for in the Public Health Code may not be continued unless it is confirmed by a court within six months; that these provisions thus require regular review, at least every six months, of treatment provided without consent in the form of full sectioning which have already been upheld by a court; that the contested provisions do not preclude the custodial judge from being seized at any time of a request to order to immediate cessation of treatment; that accordingly, in adopting these provisions, the legislature ensured that a balance was struck which is not manifestly unreasonable between the requirements of Article 66 of the Constitution and the objective of constitutional standing of the proper administration of justice, resulting from Articles 12, 15 and 16 of the 1789 Declaration of the Rights of Man and the Citizen;

18. Considering that according to the above, subparagraph 3 of paragraph I of Article L. 3211-2-1 of the Public Health Code, which does not violate any right or freedom guaranteed under the Constitution, must be ruled constitutional;

• WITH RESPECT TO PARAGRAPH II OF ARTICLE L. 3211-12 AND ARTICLE L. 3213-8:

19. Considering that paragraph II of Article L. 3211-12 concerns mandatory treatment ordered by the representative of the State where it has been informed by the judicial authorities that the mental condition of a person who has benefited from a discontinuation order, a decision that it is criminally insane or a ruling or judgment stating that it is criminally insane calls for treatment and jeopardises the safety of other persons or causes serious disruption to public order; that Article L. 3213-8 only applies where a person is or has been subject to a "sectioning" order issued by the representative of the State under the same conditions and on the same grounds;

20. Considering that paragraph II of Article L. 3211-12 and Article L. 3213-8 apply to persons who are subject, or who have been subject during the previous ten years, either to a measure requiring admission for psychiatric treatment in the form of full sectioning within a psychiatric establishment ordered by a examining board or a court issuing a decision or judgment that the person is insane on the grounds of mental illness pursuant to Article 706-135 of the Code of Criminal Procedure, or to sectioning ordered by the representative of the State where these persons were also admitted to units for challenging patients during the course of their sectioning for a term set by decree of the Conseil d'État;

21. Considering that Article L. 3211-12 concerns the conditions under which the custodial judge may be seized with an application to order the immediate cessation of psychiatric treatment ordered without the patient's consent; that paragraph II provides on the one hand that the custodial judge may only issue an order after it has received an opinion from the board of care staff provided for under Article L. 3211-9 and, on the other hand, that it may not decide to revoke the measure unless it has commissioned two supplementary expert reports drawn up by two psychiatrists;

22. Considering that Article L. 3213-8 provides, as regards the persons covered by this legislation, that the representative of the State may only decide to put an end to psychiatric treatment after it has received an opinion from the board of care staff referred to under Article L. 3211-9 along with two opinions to the same effect on the patient's mental condition provided by two psychiatrists;

23. Considering moreover that Article L 3213-9-1 provides that, where the representative of the State has decided not to endorse the opinion provided by a psychiatrist from the receiving establishment stating that the psychiatric treatment taking the form of full sectioning is no longer necessary, and following a review of the patient by a second psychiatrist confirming this opinion, it may not order that this measure be maintained for the persons referred to in paragraph III of Article L. 3213-1, who are the same as those referred to in Article L. 3213-8, or the adoption of another form of treatment unless each of these opinions and expert reports provided for under the latter Article conclude that full sectioning is no longer necessary; that moreover, for these persons, the last subparagraph of Article L. 3213-4 releases the representative of the State from the formal requirements stipulated in order to maintain a measure which he has ordered;

24. Considering that, according to the applicants, by imposing more stringent conditions on the continuation of psychiatric treatment for persons who have been declared criminally insane or who have stayed in a unit for challenging patients, these provisions establish a different treatment which is not grounded on objective and rational criteria and, accordingly, violate the principle of equality before the law; that the classification of the conditions under which the court may order the continuation of treatment also violate the independence of the judiciary, as the guardian of individual freedom;

25. Considering that due to the specific nature of the situation of individuals who have committed criminal offences whilst suffering from mental illness or who appear to be particularly dangerous during sectioning, the legislature was able to apply particular conditions to the revocation of the treatment without consent to which these persons are subject; that nevertheless, it is for the legislature to put in place the legal guarantees against the risk of arbitrary action applicable to the implementation of these particular arrangements;

26. Considering first that Article L. 3222-3 of the Public Health Code provides that individuals who are subject by the representative of the State to psychiatric treatment in the form of full sectioning may be taken into care in a unit for challenging patients where they "represent a danger for others which is such that the necessary treatment, surveillance and security measures can only be implemented in a specific unit"; that neither this Article nor any other legislative provision regulates the procedures or specifies the conditions under which such a decision will be made by the administrative authorities; that the contested provisions thus provide that sectioning within a unit for challenging patients, which is imposed without sufficient legal guarantees, may result in more stringent rules than those applicable to other persons admitted to full sectioning, in particular as regards the revocation of such treatment; that accordingly they violate the constitutional requirements mentioned above;

27. Considering secondly that the contested provisions apply where the representative of the State has ordered treatment in accordance with Article L. 3213-7 of the Public Health Code; that this Article provides that, where the judicial authorities consider that the mental condition of a person who has benefited pursuant to the first subparagraph of Article 122-1 of the Criminal Code from a discontinuation order, a decision that it is criminally insane or a ruling or judgment stating that it is criminally insane requires treatment and endangers the safety of other persons or causes serious disruption to public order, they shall immediately "inform" the departmental psychiatric treatment board and the representative of the State in the department; that the latter may issue an order requiring admission for psychiatric treatment after ordering the presentation of a medical certificate on the patient's condition;

28. Considering that the notice may be issued to the representative of the State by the judicial authorities irrespective of the gravity and nature of the offence committed whilst suffering from mental illness; that the contested provisions do not require that the individual concerned be informed in advance; that accordingly, absent specific provisions requiring that offences be taken into account or an adapted procedure, according to these provisions, this decision to give notice, without sufficient legal guarantees, may result in more stringent rules than those applicable to other persons under an obligation to receive psychiatric treatment, in particular as regards the revocation of such treatment; that, for the same reasons, these provisions also violate the aforementioned constitutional requirements;

29. Considering that it is apparent from the above that paragraph II of Article L. 3211-12 of the Public Health Code and Article L. 3213-8 must be ruled unconstitutional;

• ON THE EFFECTS OF THE RULING OF UNCONSTITUTIONALITY:

30. Considering that the second paragraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61-1 is revoked as from the publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits under which the effects produced by the provision may be questioned"; that, if, as a matter of principle, the declaration of unconstitutionality must benefit the party submitting the priority question on constitutionality and the provision ruled unconstitutional cannot be applied to proceedings in progress at the time the decision of the Constitutional Council is published, the provisions of Article 62 of the Constitution grant the Council the power both to set the date of repeal and to defer its effects as well as to provide for the review of the effects that the provision generates before this declaration takes effect;

31. Considering that the immediate repeal of paragraph II of Article L. 3211-12 and Article L. 3213-8 would have manifestly excessive consequences; that accordingly, in order to enable the legislature to remedy this unconstitutionality, it is appropriate to defer the date of repeal to 1 October 2013; that any decisions adopted prior to this date applying the provisions ruled unconstitutional may not be contested on the grounds of such unconstitutionality,

HELD:

Article 1.- Article L. 3213-8 and paragraph II of Article L. 3211-12 of the Public Health Code are unconstitutional.

Article 2.- The declaration of unconstitutionality contained in Article 1 shall take effect on 1 October 2013 in the conditions specified in recital 31.

Article 3.- Article L. 3211-2-1 and subparagraph 3 of paragraph I of Article L. 3211-12-1 are constitutional.

Article 4..- This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session on 19 April 2012, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on 20 April 2012.