Hospitalisations sans consentement : repères historiques et contemporains de l’intervention judiciaire dans le contrôle des mesures

Abstract

ObjectivesThe question of judicial control emerged with the debates surrounding the law of 30 June 1838 instituting psychiatric hospitalization. However, it was systematically rejected until the law of 5 July 2011. This article examines the conditions under which such control was introduced. MethodThe aim is to analyze the debates surrounding the protection of the rights of mental patients hospitalized under judicial control during the proposed reforms to compulsory hospitalization. The reasons for the exclusion of judicial control from the 1838 and 1990 legislation will first be examined, before looking at the conditions leading to judicial review in 2011. ResultsThe introduction of systematic judicial control appears to be the result of the mobilization of patients’ associations, who brought the Question Prioritaire de Constitutionnalité (QPC) before the courts. This ability to use the law reflects a more developed legal knowledge, due to the legal route taken to assert their claims. This method of imposing reform bypasses the usual channels for reform. DiscussionThe reform has therefore led to the decision to unify litigation and to a systematic hearing by the juge des libertés et de la détention (JLD) for any patient hospitalized without consent. ConclusionThe use of the QPC as a strategy for imposing reforms in psychiatry has flourished in the years since the reform, in particular to question the legality of other psychiatric practices. However, the ability of the law to prevent these decisions from being arbitrary needs to be questioned.