[Definition, derogation and application of the professional secrecy within the frame of court ordered cares: A systematic review of the French legal and health literature since 1998]

Abstract

Introduction: Guaranteed by several legal and deontological dispositions, professional secrecy is an essential aspect of medical care, especially concerning the therapeutic alliance. Since the creation in French law of court-ordered treatment, some information is likely to be shared between actors either from the field of healthcare or of justice. This questions the type of information that can be shared and the variances existing between the different types of court-ordered treatments, which are to be known by the professionals.

Methods: Following the methodology of the French Haute Autorité de Santé, a systematic review of the legal and health literature has been conducted. Different databases such as PubMed, Cairn and Legifrance have been reviewed with the following keywords « secret », « injonction de soins » (court-ordered treatment) and « obligation de soins » (obligation of care). Only the French literature since 1998 has been retained and because it is often less pronounced by the courts, the case of the therapeutic injunction, which represents the third type of court-ordered care, has been excluded.

Results: Concerning the court-ordered treatment, on the one hand, the coordinating physician addresses the elements required in the control of measure to the Executive Magistrate. On the other hand, the Executive Magistrate sends a copy of the piece of the procedure to the coordinating physician, who transmits it to the general practitioner. The therapist can derogate from the medical secrecy in some circumstances as said in the law, either through the coordinating physician or the Executive Magistrate. In the case of obligation of care, where there is no coordinating physician, the general practitioner is still submitted to the classical rules of medical secrecy and only has to produce certificates of the follow-up with the patient.

Discussion: Some authors have expressed their reservations about these new laws of derogation, especially concerning the blurred lines of the exception to these laws. Others have underlined the astonishing differences between court-ordered treatment and the obligation of care for almost similar clinical situations.

Conclusion: The rules of shared information must be known by the professionals and stated clearly to the patient at the beginning of treatment. Then, professionals are invited to remain thoughtful concerning the nature of this information. Finally, and as the public hearing of June 2018, promoted by the FFCRIAVS (Fédération Française des Centres Ressources pour les Intervenants auprès des Auteurs de Violences Sexuelles), said, it could be interesting to promote meeting spaces between the different actors of the management of people under court ordered cares, so as to better identify the limits of each one.

Keywords: Court-ordered treatment; Forensic; Injonction de soins; Obligation de soins; Obligation of care; Psychiatrie légale; Secrecy; Secret.