2022 was a decisive year in the strengthening of the control of compulsory hospitalizations in psychiatry, which had already been subject to the control of the judge of freedoms and detention since 2011. The law of last January 22 now establishes a control of isolation measures and restraint.
From 2011 to 2022: a slow realization
This is a little known aspect of Justice, where the judge of freedoms and detention, with his clerk, but also the lawyer, nevertheless intervene regularly in the psychiatric hospital. This closed environment, the evocation of which can frighten because of its ignorance, is however not outside the Law. Everyone should take a close look at it, the vagaries of life, illness, which can lead any reader or someone around him to need to be hospitalized, sometimes under duress.
Since 2011, any measure, whether initiated by a third party (family or guardian), by a doctor in the event of imminent danger or by the prefect, is now controlled by the judge of freedoms and detention within a maximum period of twelve days from its pronouncement, and in the event of an extension, every six months.
It was not until 2016 that the issue of isolation and restraint measures entered the public and legislative debate.
If the legislator adopted article L 3222-5-1 of the Public Health Code, this provision ended up being declared unconstitutional following the decision of June 19, 2020, imposing the adoption of a new text the same year.
The use of measures, such as isolation or restraint, constitutes a major restriction on individual freedom, so that it is an exceptional and time-limited remedy in order to “prevent immediate or imminent for the patient or others, on the decision of a psychiatrist”. Their implementation implies respect for the dignity, safety and comfort of the patient and requires careful clinical monitoring.
However, the legislator had not gone all the way, and it was not until Law No. 2022-46 of January 22, 2022 strengthening the tools for managing the health crisis and amending the Public Health Code, so that these measures are finally submitted to the control of the judge of freedoms and detention.
Isolation, 48 hours maximum?
Isolation means separating a patient from others and locking them in a dedicated and suitable space, called an isolation room, consisting of a tiled room with a bed and a toilet sealed to the floor.
The principle is that of a measure lasting 12 hours renewed four times within the limit of 48 hours, during which two medical assessments must be carried out.
If for the strict reasons of care, the measure should last beyond two days, a member of the family must be notified, and the judge of freedoms and detention, seized immediately and without delay by the director of the care facility before the 72nd hour. The judge will have to rule before the expiry of the 96-hour period. Following the decision and in the event of an extension of the isolation, the measurement can be carried out within the same framework of four days, then thereafter on a weekly basis.
In practice, in Chambéry, even if the procedure takes place without a hearing, the judge, the clerk and the lawyer go to Bassens hospital to hear the patient when he can be heard. Most of the time, either this hearing takes place in the isolation room itself, or in a small room in the unit.
Both the lawyer and third parties (family or guardian) may make submissions in writing, and due to time constraints, this is done by email. The judge then renders his decision before the end of the 96-hour period.
At this stage, if there are no official statistics, a large number of isolation measures are lifted due to procedural problems (failure to inform the family, and even sometimes non-compliance with legal deadlines). It should be noted that the compulsory hospitalization continues, the judge’s order only ending the isolation.
This new litigation represents approximately six to eight decisions per week, in this little-known matter.
It should be noted that the patient and his relatives can directly apply to the judge for a request for control and for the release of the measure, which in the long term risks leading to a significant increase in litigation.
Contention, 24 hours flat!
So-called “mechanical” restraint necessarily occurs in the context of isolation and is defined by the use of all means, methods, materials or clothing preventing or restricting the capacity for voluntary movement of all or part of the patient’s body.
The logic is the same as for isolation, except for the delays, which are even shorter.
The principle is that the measure lasts only 6 hours, renewable by 6 hours, for a duration of 24 hours in total, with two medical evaluations.
In the event of an exceptional extension beyond that, the family must be informed and the matter referred to the judge before the end of the 48-hour period.
The decision must then be pronounced before the end of a period of 72 hours, it being specified that in the event of continuation of the measure after the order of the judge, this rhythm of three days continues.
I will only mention restraint in theory, because to date, within the jurisdiction of the Chambéry court, no restraint measure has been submitted by the director of the hospital to the control of the judge.
Does this mean that this practice has disappeared or that it only lasts 24 hours maximum?
I fear that it will be complicated for a patient under restraint to write a letter to the judge, although he technically has the right to do so… Therefore, the attention of the patient’s relatives is therefore drawn to this point. And they are invited as the law authorizes them to request the judge of freedoms and detention to control this restraint measure.
This expected control, and hoped for in the case of a custodial measure whose effectiveness in terms of care is disputed, has imposed an adaptation of both the medical and the judicial environment to be effective from the summer of 2022 in Chambéry.
If in general, no one would dispute that the medical profession is suffering, psychiatry is a service often forgotten, neglected, much less “seller” than services of the cardiology or neurology type. This reform leads to asking doctors to do more and more administrative work, without having the time necessary for treatment. As for the nursing staff, also understaffed, they do their utmost to ensure that the hospitalization takes place in the best possible conditions with the means made available to them. Isolation and restraint would probably have no medical utility, if the caregivers were sufficient in number and better trained.
As for Justice, for months already the alarm bell has been sounding. Magistrates and clerks take on this new task in addition to the others, with a view to respecting the rights of each litigant. And the Bar Association has responded so that everyone can be assisted in a very short period of time, with support under legal aid.
It is clear that if all have adapted to this new reform, which if necessary, intervenes within the framework of two public services already out of breath.
When will real awareness and real means be given? Let’s hope it’s before Justice ends up in psychiatry…
By Me Delphine Montoya, lawyer at the Chambery Bar.
Leave a Comment