Doctors take an oath before taking office: It is the Hippocratic Oath.
This act marks their affiliation to the order of physicians and their submission to the code of medical ethics which fixes the duties and obligations of health professionals (doctors, surgeons, dentists, midwives, etc.).
The National Order of Physicians is a private institution, charged with a public service mission responsible for " ensure the maintenance of the principles of morality, probity, competence and dedication essential to the practice of medicine and to the observance, by all its members, of professional duties as well as of the rules enacted by the Code of Ethics provided for in Article L. 4127-1 of the public health code ».
If physicians fail to meet their ethical or disciplinary obligations, they will be judged by their peers.
Law n ° 2002-303 of March 4, 2002, on “patients' rights” codified several ethical rules, already enshrined in case law, to raise them to the level of wrongdoing.
This is why for the same fault, a doctor can be sued before the civil, administrative or criminal courts. et before the ordinal authorities.
However, ethical and judicial procedures are independent of each other. A doctor convicted by his peers may be acquitted by the courts. And vice versa.
This is a principle often recalled by case law (Cass. Social ch. Of 7 November 2006 n ° 04-47.683).
As part of the proper administration of justice, the prosecution must inform the departmental council of all convictions handed down against a health professional (but, in fact, there are often omissions and some doctors convicted. may continue to exercise).
Emergency administrative measures taken by the Prefect
Article L.4113-14 of the public health code allows the prefect of the department to immediately and on his own initiative suspend the right to exercise of certain health professionals in an emergency and in a case of serious danger to the patient. patient.
The prefect must at the same time seize the ordinal authorities which will have to rule within 4 months.
He will also have to inform the health organizations of the suspension measure affecting the doctor since he can no longer make a prescription.
For more transparency, laws n ° 2002-303 of March 4, 2002 and n ° 2007-127 of January 30, 2007, allow the patient, under certain conditions, to be party to the disciplinary procedure of medical professions practicing in the private sector. (not those of the public service).
But the Order will not award him damages. The disciplinary procedure is there only to sanction the faults of the doctor not to repair the damage suffered. Only the judicial courts may order him to pay damages.
The ethical mistakes
The main obligations of the doctor are:
- To personally ensure conscientious and dedicated care based on data acquired from science (article R.4127-2 of the public health code).
- To prepare his diagnosis with the greatest care, devoting the necessary time to it, using as far as possible the most suitable scientific methods and, if there is appropriate assistance (article R. 4127-33 of the public health code).
- To inform patients in a clear, precise and understandable way about their state of health.
- To ensure a follow-up of care (article R.4127-34 of the public health code)
Any breach of one or more of these obligations will be liable to result in a sanction.
The organization of the Order of Physicians
The Order of Physicians is present on the national territory at 3 levels.
The departmental council of the Order
It performs an essentially administrative role (registration of doctors after having checked their qualifications, keeping of the Table, examination and control of all contracts concluded by doctors, issuance of replacement authorizations, organization of on-going care, etc.).
It does not have disciplinary power, if it receives complaints, it must forward them to the regional council.
The regional council of the Order
He is competent to exercise disciplinary procedures. He receives and transmits complaints filed against practitioners within his jurisdiction to the disciplinary chamber of first instance which comes under his jurisdiction.
The national council
He coordinates and harmonizes the activity of all the ordinal councils. He acts at the administrative and judicial level.
The disciplinary procedure
Each doctor is registered on the roll of the Order of a region.
Only the regional council of the Order where the doctor is registered will be competent to carry out disciplinary proceedings.
Direct referral to the Bar Council
Anyone can lodge a complaint against a doctor with the Order. But there are 2 filters for patients.
Each complaint lodged directly by a patient before the disciplinary chamber will first of all be handled by the president of the departmental council who will convene the two parties for a conciliation.
If this is not successful, the complaint will be forwarded to the disciplinary chamber of first instance with a reasoned opinion from the departmental council.
The fine for abusive procedure
In the event of an abusive complaint before the disciplinary chamber of first instance. According to article R.741-12 of the administrative code, the judge can impose a fine, the amount of which cannot exceed 3 euros.
Referral to the disciplinary chamber
Each regional council of the Order of Physicians has a disciplinary chamber of first instance made up of assessor ordinal advisers and an administrative magistrate.
The disciplinary chamber of first instance can only be seized by:
- The national council or a departmental council (upon complaint from a patient and after conciliation)
- A union or association of doctors
- The director general of the regional health agency (ARS)
- The prosecutor
The procedure before the disciplinary chamber is written, adversarial and public. This means that the presence of a lawyer is not compulsory.
The ordinal jurisdiction rules within a maximum period of 6 months from the filing of the complaint.
The Order may, as main or additional penalties, impose one or more of the penalties provided for in article L.4124-6 of the public health code.
The main penalties
- The blame
- Temporary ban with or without suspension or permanent ban from exercising one, more or all of the functions of doctor, dentist or midwife.
- Temporary prohibition from practicing with or without suspension (three years maximum)
- Removal from the order board.
Radiation is the heaviest penalty, the Council of the Order pronounces 2 or 3 each year. The doctor can no longer practice in France and the radiation is communicated to all the departmental councils. It is generally pronounced for a serious ethical fault, a lack of information, or any deviant behavior such as rape or abuse.
To know :
According to article L.4124-6-1 of the public health code when "the charges against a doctor, a dental surgeon or a midwife have revealed a lack of professional competence, the disciplinary chamber of first instance may (…) Order the person concerned to take training. "
There are several, but we can cite as an example the deprivation of the right to be part of the ordinal bodies for a certain period.
The remedies of the doctor
The appeal to the national disciplinary chamber
An appeal of the decision is possible before the national disciplinary chamber (L.4122-3 of the public health code).
A doctor sanctioned at first instance by a regional council has a month to appeal to the national disciplinary chamber of the National Council of the Order of Physicians, made up of national ordinal advisers and chaired by a magistrate of the Council of State.
The decision rendered by this chamber will itself be subject to appeal before the Council of State within two months of its notification.
The appeal is suspensive. The decision is suspended until the end of all legal remedies.
The other parties (Trade unions, ARS, prefects, prosecutor, national council ...) can also appeal the decision and request the aggravation (or reduction of a sentence)
The cassation appeal before the Council of State
Since the contested decision is that of an ordinal authority, it is administrative in nature. The doctor can therefore only appeal to the Council of State before the Council of State; before the Council of State, the Order of Physicians is not represented.
To know :
A doctor struck off the roll can request a re-examination of his case after 3 years in order to obtain the cancellation of the strike off by the ordinal authorities.