INFORMATION OF A PERSON BEING SECTIONED AND LEGALITY OF THE DECISION. WHENEVER THE JUDICIAL JUDGE PLAYS AT BEING THE ADMINISTRATIVE JUDGE, THE PATIENT LOSES OUT

Abstract

The issue of rights of patients placed in enforced hospitalization has always generated a special attention by the
judge, either administrative or judicial. With the jurisdictional dualism, both were competent. Since the reform of
5 July 2011, the litigation relating to mental care without
consent falls within the exclusive competence of judiciary
courts. The attribution of competences should have allowed
for magistrates of his jurisdiction to promote jurisprudence
would be more protective of patients’ rights, but administrative and judiciary jurisdictions chose the same method
of assessing. The judgment delivered on 15 January 2015
by the Court of Cassation is an illustration. In that decision, the judicial judge makes a decision on the impact of
non-compliance with the obligation to provide the information to patient who has received mental care without
consent, in accordance with article L. 3211-3 of the Code
of public health. In a formal legal ground of principle, the
First Civil Division considers that the administrative authority that takes the involuntary hospitalization measure,
must inform the patient of his rights and his legal position.
However, failure to meet this obligation does not affect the
legality. With this decision, the Supreme Court complicates
the assessment of the legality of the psychiatric hospitalization measures without consent, but allows a diminution of
patients’ rights was admitted in this context.