Conflit d’intérêts et déontologies : l’échec des déontologies existantes et l’improbable (?) succès de la loi

Abstract

The increasing frequency with which health scandals have come to light since the 1980s has uncovered a great deal of unlawful behavior, both in the pharmaceutical industry and the medical profession, as well as in the world of “experts” (or researchers), along with journalists and specialist media companies. These types of behavior have accumulated and combined to inhibit any reaction from government, thus preventing health policy from playing its role. The State has its share of responsibility in this failure, for having been unable to conserve the impartiality and effectiveness of its administrative actions: it must acknowledge this, which is a whole other problem. However, in the case in point, it is obvious that those texts which must have been breached to allow these health scandals to occur are almost exclusively the result of professional self-regulation, with a wide range of diverse legal values: ethics for the health professions, journalistic ethics, charters between the pharmaceutical industry and media companies, alongside scientific ethical charters. These texts are the result of regulations generated by the professions themselves, drafted to counteract conflicts of interest. The sheer number of cases highlights the failure of these self-regulatory measures, leading to legislation targeting the problem, in particular that of December 29, 2011, which strengthened monitoring in terms of conflicts of interest and penalties against those placing themselves in a conflict of interest situation. Will this legislation, in direct response to the so-called Mediator® case, be able to succeed where self-regulation failed, swept away as it was by financial considerations? The arbitrations that characterized the drafting of this legislation and the resulting complexity, which affects the decrees, seem to promise many difficulties, particularly due to the scarcity of resources the authorities have to enforce it.