Key Benefits:
Mr. President,
This Order, pursuant to sections 73 and 84 of Law No. 2004-1343 of 9 December 2004 on Simplification of Law, contains three broad sets of measures to harmonize and alleviate certain procedures concerning health professions.
In accordance with Article 73 (2°) of the above-mentioned Act, the first part is to simplify the organization and operation of the orders of the health professions, including by adapting the procedure and composition of the disciplinary bodies, by simplifying the execution of their decisions and by adjusting the rules for the dissemination of the lists of health professionals listed in the tables.
Additional provisions, made under 11°, 12° and 13° of the same article, simplify in a second part the registration procedures applicable to psychologists and social service assistants, the replacement of health professionals, and the creation or change of operator of pharmacies.
The third part responds to the objective of Article 73 (3°) by harmonizing the repressive provisions applicable to the offences of the illegal use of the professions regulated by the Public Health Code.
Section 84 (3°), which makes it possible to correct any errors or deficiencies in codification, including the Public Health Code, is also applicable in this Order.
Title I of the order deals with the organization and operation of the health professions.
Act No. 2002-303 of 4 March 2002 on the rights of the sick and the quality of the health system had already laid down a number of principles for reforming these institutions. In particular, disciplinary chambers of first instance independent of administrative structures and chaired by a magistrate were created with the aim of guaranteeing the complainants' rights and ensuring the transparent functioning of these courts. In addition, rules relating to the suspension procedure of dangerous practitioners and the modalities of certain ordinal elections were introduced.
Initial supplements were made under Act No. 2004-806 of 9 August 2004 on public health policy. However, this law could not provide the appropriate support for all desirable amendments, so that the current provisions remain lacking in terms of the original objectives.
The purpose of this Order is to supplement the reform undertaken by the Act of 4 March 2002 and pursued by the Act of 9 August 2004 and to allow for the effective implementation of it.
In addition, it operates a number of formal clarifications by consolidating in common articles the provisions contained in the various chapters concerning each order, as well as a correction of the social security code under section 84 of the above-mentioned Act of 9 December 2004.
Section 1 concerns the orders of medical professions: doctors, dentists and midwives, and amends the following articles of the Public Health Code.
Section L. 4113-9 extends to midwives the obligation to transmit contracts for the exercise of their profession to the departmental board of order, which so far only apply to physicians and dental surgeons.
In addition to the transparency measures between practitioners and the orders contained in this article, members of the three medical professions in society also have an obligation to transmit to their order the statutes, contracts and amendments relating to the operation of this society or to the relationship between the partners.
Article L. 4113-12 also gives midwives the opportunity to transmit contract projects to national councils.
In article L. 4113-14, the current drafting requires the representative of the State in the department who pronounces the immediate suspension of a practitioner if his behaviour presents a serious danger to patients to inform the president of the competent departmental council who must then refer to the regional or interregional council. This order simplifies and accelerates the procedure by providing that the State representative seizes the regional council or the first instance disciplinary board of the decision.
Article L. 4122-1-1 relating to the appointment of state councillors serving on the national council of each order is inserted in a common provision to avoid the repetition that existed in articles L. 4132-4, L. 4142-2 and L. 4152-5.
Article L. 4122-1-2 introduces interim measures in the event that national councils are unable to meet because of the resignation of their members. These measures are similar to those already existing for departmental councils of the three orders, in article L. 4123-10.
Article L. 4122-2 deals with statutory contributions in order to allow, for orders that wish, to modulate this amount according to the situation of professionals, as they exercise in a liberal or employee capacity and to take into account any particular situation.
In addition, like pharmacists, it is anticipated that medical professions' liberal practice companies will be assessed. Indeed, the registration of these companies and the review of their statutory amendments represent a cost of operation for the boards of the order.
The fifth preambular paragraph aims to correct a material error of the Act of 4 March 2002: the National Council monitors the management of departmental councils, regional and interregional councils.
The sixth paragraph allows regional and interregional councils, like departmental councils, to receive funding from the national council.
The following amendments, including articles L. 4122-3, L. 4124-7 and L. 4124-11, tend to include in the same article the common provisions concerning national disciplinary chambers, first instance disciplinary chambers and regional councils of each order, respectively.
Section L. 4122-3 includes the provisions common to the three orders relating to the national disciplinary chambers, which were identical in sections L. 4132-5, L. 4142-3 and L. 4152-6.
The first paragraph concerning the decisions of the regional councils, contained in article L. 4124-11 on regional councils, is deleted.
Other provisions include the composition and operation of national disciplinary chambers as well as the conditions of ineligibility and incompatibility to which members are subjected. The incompatibility of duties between assessor of a disciplinary chamber of first instance and appeal allows to respect the principle of double jurisdiction.
Article L. 4123-2 specifies the operation of the conciliation commission in departmental councils, including the possibility of organizing a conciliation in another department where one or more members of the council are either concerned or parties to the dispute.
The authorization given to the departmental council to transmit to the board a complaint without conciliation applies to cases where the nature of the grievance made by itself hinders conciliation.
Section L. 4124-3 provides for the removal of professional secrecy with respect to the physician responsible for an investigation.
Section L. 4124-6 rectifies a material error introduced in the codification of the new legislation.
Section L. 4124-7 contains provisions common to the three orders relating to the disciplinary chambers of first instance, which were identical in sections L. 4132-7, L. 4142-4 and L. 4152-7.
Section L. 4124-8 states that applications for rehabilitation of disability are tried by the board that held in the first instance. This allows for the resolution of situations in which the sanction was pronounced on appeal and not at first instance, preserving the dual degree of jurisdiction.
In article L. 4124-9, the last paragraph that provided for the participation of the members of the departmental council of the order of midwives of the Meeting in the election of members of the disciplinary chamber of first instance in the Ile-de-France region is abolished since the disciplinary chambers of first instance of midwives are now elected by members of the interregional councils.
In article L. 4124-10, the last paragraph is deleted in the same way for midwives in the Caribbean-Guyane.
Article L. 4124-11 includes provisions common to the three orders relating to regional councils and contained in various articles.
It sets out, inter alia, the skills, composition and electoral college of regional councils.
With regard to regional councils, articles L. 4124-12 and L. 4124-13 have the same purpose as articles L. 4124-9 and L. 4124-10 for the first instance disciplinary chambers.
Article L. 4125-2, common to the three medical orders, includes all incompatibility related to the functions of president.
Section L. 4125-3 provides an authorization of absence for employees or public officials, ordinal advisers. The text thus operates a harmonization with the provisions of the Social Security Code and the Code of Mutuality which require employers to leave to their employees, members of a board of directors of a social security or mutualist organization, the time necessary to visit and participate in the meetings of that council or the commissions that depend on it, without diminishing their remuneration.
Article L. 4126-1 removes summons and distance times for practitioners called to appear.
Section L. 4126-3 shall charge the parties.
Article L. 4126-4 specifies the opposition proceedings, only on appeal with suspensive effect except in the matter of suspension of exercise.
Article L. 4126-6 rectifies a material error.
Section L. 4126-7, redundant with section L. 4124-14, is repealed.
Section L. 4132-5 contains specific provisions relating to the composition of the National Disciplinary Chamber of the Order of Physicians, in addition to the common provisions set out in Article L. 4122-3, and limits the training of judgment to five or seven members.
In accordance with the principle of dual jurisdiction, it provides, inter alia, that members of the board shall be elected from among members of the national council, instead of members of the disciplinary chambers of first instance.
Similarly, section L. 4132-7 contains specific provisions concerning the first instance disciplinary chamber of the medical order.
The specificity of the Rhône-Alpes region is deleted.
The election of the members of the chamber by the regional council, with double college of members from the regional councils and members and former members from other councils, is identical to that of the national disciplinary chamber.
Article L. 4132-8 sets out the composition of the first instance disciplinary chamber in Ile-de-France and the competence of the first instance interregional disciplinary chamber in the order of doctors for the regions Corsica and Provence-Alpes-Côte d'Azur (PACA).
Given the number of cases, three sections are created in Ile-de-France.
In addition, for demographic reasons, the competence of the first instance disciplinary chamber of PACA is extended to physicians under the Regional Council for the Order of Physicians of the Corsica Region to create an interregional disciplinary chamber of first instance of Provence-Alpes-Côte d'Azur-Corse.
Article L. 4132-10 is deleted, as the Presidency incompatibility is consolidated in the provisions common to article L. 4125-2.
The provisions of sections L. 4142-3, L. 4142-4 and L. 4142-4-1 relating to the order of dental surgeons are aligned with those relating to the order of doctors.
Section L. 4152-6 sets out specific provisions relating to the National Disciplinary Chamber of the Midwives Order, in addition to section L. 4122-3.
Section L. 4152-7 provides for the operation of the first instance disciplinary chamber of the order of midwives whose composition is harmonized with that of other medical orders.
Section 2 of the order concerns the pharmacist profession and harmonizes certain provisions with those concerning medical professions.
Section L. 4221-19 requires companies to transmit the partnership pacts to the board of order.
Section L. 4232-5 allows the chair of the Regional Council of Section A to request an inquiry from a pharmacist public health inspector, the current section only provides for this referral by the Regional Council.
Section L. 4233-3 aims to alleviate the provisions relating to the national order of pharmacists by a decree limited to the electoral principles and removes appointment orders to the various pharmacist councils taken by the minister responsible for health.
The provisions of Article L. 4233-4 are in line with those of articles L. 4122-2 and L. 4125-3 relating to medical professions.
Sections L. 4234-3 and L. 4234-4 entrust the chair of the Disciplinary Chamber of the Regional Councils of Section A and the Disciplinary Chamber of the Central Council of each of the other sections of the Pharmacists' Order Board to active magistrates or fees of the administrative tribunals and administrative appeal courses in place and place of judicial magistrates.
Similarly, article L. 4234-8 provides for the Presidency of the Disciplinary Chamber of the National Pharmaceutical Council by a State Councillor.
These three articles harmonize the functioning of the disciplinary chambers of the pharmacists' order with those of the medical orders.
Section L. 4234-9 is intended to remove the proposal for the rehabilitation of the inability to practise for a pharmacist made to the Minister responsible for health in order to allow the National Council for the Order of Pharmaceuticals to appraise the case.
Article 3 is related to the professions of masseur-kinesitherapist and pedicure-podologist; it supplements the provisions contained in articles L. 4321-14 to 19 and L. 4322-7 to 12 of the Public Health Code and carries out compliance with the provisions of this Order.
Article 4 aligns the medical professionals of Mayotte with those of La Réunion, as a result of the establishment of the interregional council of La Réunion-Mayotte.
Article 5 amends section 44 of Act No. 2002-303 of 4 March 2002, which states that the reform of the regional councils and the creation of the disciplinary chambers will come into force as soon as the results of the elections of the new regional councils and the disciplinary chambers of first instance are proclaimed, which requires that all regional structures be composed, the chambers being elected by the councils.
The deletion of the words "of the whole" in the first sentence will allow newly elected councillors to take office without delay, thus avoiding a break in the functioning of the jurisdiction.
Two paragraphs are added, stating that the National Council of Order proclaims the results of the elections to the regional councils and disciplinary chambers, that the complainant can only become a party in the first instance in cases after the law, and that the provisions introduced by the Act of March 4, 2002 concerning regional councils can only intervene after the results of the elections to these councils.
Article 6 amends Article L. 145-5-4 of the Social Security Code to correct a material error, and Article L. 145-6 of the same code to substitute for the appointment of two alternates, that of several alternates to the presidency of the sections of social insurance of the first instance disciplinary chambers.
The second part of the order concerns the current framework for regulated professions in the health and social fields that is the result of a long and rich history, some procedures dating back to the time of the French Revolution, and successive legislative developments that have not always taken into account the operation of the whole device. This leads to the existence, today, of a mature, relatively complete device, but sometimes presenting redundancies between the activities of the various public operators.
In addition, new information and communication technologies now allow much more effective sharing of information. The development of automated information systems has become a necessity, in particular to support the establishment of the LOLF and to produce more quickly and effectively the relevant indicators on State action. Investments on the subject are an important strategy to modernize and make health action more effective, taking advantage of new operating modes that can be developed.
The existing system mainly results in obligations perceived as unnecessarily binding for the health professionals involved. They legitimately expect a simplification to be able to exercise in a suitable and efficient setting.
To this end, the Ministry of Health and Solidarity, together with the various partners concerned, is setting up new infrastructures to share information and thus allow the administration to mobilize its means on priority issues without losing a necessary knowledge. To do this, a shared directory of health professionals, which serves as a reference to all actors who need to process information about them (executive authorization, authorization to perform acts, exercise bans, repayments, demography, etc.) will enter service at the beginning of 2006 and allow most of the simplifications presented here.
These provisions are part of this desire to reduce the various administrative procedures of the regulated professions and are intended to simplify the registration procedures of psychologists and social service assistants, the procedures for the replacement of doctors, dentists and midwives by students, as well as those necessary for changes in the holder of a pharmaceutical offence. It is also proposed to remove the transmission to the prosecutor's office of the court of grand instance of the tables of orders that will be available on the internet or with other State services.
This reform will also apply to Mayotte and the Wallis and Futuna Islands (Title VII).
Title II is related to registration procedures for psychologists and social service assistants.
Section 7 is intended to simplify registration procedures for psychologists and social service assistants in order to homogenize their graduation registration regime with that of all health professions regulated by the Public Health Code.
Title III relates to procedures for replacing health professionals by students.
Section 8 is intended to simplify the administrative procedures carried out by health professionals by removing, for each application to replace a doctor, a dental surgeon or a midwife by a student, the prior authorization by the prefect and to allow the order concerned to rule on the possibility of replacement, in accordance with the limits established by the regulations.
Title IV concerns procedures for the dissemination of lists of health professionals in the tables.
Section 9 is intended to remove the transmission of orders to the prosecutor's office of the High Court, which is not deemed necessary by them, since this information is also available on the Internet.
Title V is related to pharmacy creation and change procedures.
Section 10 is intended to simplify the necessary steps for changes in the holder of a pharmaceutical offence by deleting the pre-existing statement of use of an offence made with the prefecture.
Title VI - section 11 of the order - is intended to harmonize the repressive provisions applicable to the offences of unlawful exercise and the usurpation of title of professions regulated by the Public Health Code, pursuant to section 73 (3°) of the Act of 9 December 2004 referred to above.
With regard to the offence of title usurpation, harmonization results in a definition of the offence common to all the professions involved.
Section 433-17 of the Penal Code for Title Usurpation has a general scope to protect all regulated professions.
The purpose of the public health code is to inform and draw the attention of those who would be tempted to usurp the title of a regulated health profession. The interest of this information is justified in relation to the health risks that may result from such usurpation.
Over time, the drafting of the Public Health Code referring to section 433-17 of the Criminal Code has deferred from one profession to another in the definition of the offence, without any other than historical reason justifying these differences.
The conditions of professional exercise are not limited to the possession of official diplomas, but refer to certificates or other titles, French or foreign. In addition, other conditions relating to nationality, the registration of the diploma, title, certificate or authorization, and the registration of the board of order for the professions that are in possession of it are also essential for legal exercise.
Therefore, the person who intentionally declares himself to be a holder of the diploma or any other title, certificate or authorization legally required to practise a regulated health profession.
The legislator, having heard the harmonization of repressive provisions in this area within the Public Health Code, has harmonized the drafting of articles on title usurpation for each health profession.
Only the drafting of Article L. 6222-2 differs. In fact, the management and deputy management of medical analysis laboratories are not considered to be part of the exercise of a profession but as part of the performance of functions under certain conditions to pharmacists, doctors or veterinarians.
The question of illegal exercise differs greatly from that of title usurpation.
The essential difference is that it is not to recall the provisions of an article in the Penal Code, but to define for the only health professions listed in the Public Health Code both the offence and the quantum of penalties.
The goal of harmonization is to end the current extreme heterogeneity of the scale of penalties.
The repression of the illegal exercise of health professions varied from one profession to another. Non-existent for the profession of dietitian, it was a simple breach for the professions of orthophonist orthoptist. Delict for other professions, the quantum of penalties varied unjustifiedly. Special and variable recidivisms were planned for some professions. In the event of recidivism, the amount of the fine also varied from one profession to another.
There is little difficulty in defining the offence. The offence is carried out when a person usually performs professional acts within the scope of the profession concerned without otherwise fulfilling the legal requirements.
The determination of the quantum of sentences raises questions. This quantum should be consistent between health professions with a range of different penalties depending on professions. It is also important that the whole formed by illegal exercise and title usurpation is not disparate.
In this regard, it is logical to consider that the use of a title that is not available is a lesser offence than to practise acts and to practise a profession for which the author is not legally authorized in respect of the consequences that may result in terms of health security.
This is why, if the title usurpation is punished as the principal punishment of one year's imprisonment and 15,000 euros of fine, the illegal exercise cannot be punished less severely.
Pursuant to Article 73 (3°) of Act No. 2004-1343, it is a matter of harmonizing repressive provisions and not of uniformizing penalties. In this logic, two thresholds of penalties are considered to be more or less important health risk than the illegal exercise of each profession.
The first threshold is two years imprisonment and 30,000 euros fine for the following professions:
- doctor, dentist and midwife;
- pharmacist;
- Nurse;
- masseur-kinesitherapist;
- Director or Assistant Director of Medical Biology Analysis Laboratory.
A second threshold, fixed to one year in prison and 15,000 euros in fine, is retained for the other professions:
- genetic advisor;
- pharmacy preparer;
- occupational therapist and psychomotrician;
- orthophonist and orthoptist;
- medical electroradiology manipulator;
- audioprothesist, opticien-lunetier, prothesist and orthesist for the equipment of people with disabilities.
With regard to the profession of dietitian, it appears necessary to define this profession before setting criminal penalties for the illegal exercise. The current legislative authority does not permit this to be done under this Order. This will therefore be done through another legislative medium.
Harmonization also makes it possible to explicitly provide additional penalties for individuals and to recognize the principle of liability of legal persons.
For a natural person, the primary penalty may be supplemented by the following additional penalties:
1° The display or dissemination of the pronounced decision, under the conditions provided for in Article 131-35 of the Criminal Code;
2° Forfeiture of the thing that served or was intended to commit the offence or of the thing that is the offence, in accordance with section 131-21 of the Criminal Code;
3° The final prohibition or for a period of not more than five years of practice of one or more professions governed by this Code or any other professional or social activity in the course of which the offence was committed, in accordance with the terms and conditions set out in section 131-27 of the Criminal Code.
The extension of the offences of illegal exercise and the use of title to legal persons is already planned for the profession of genetic advisor. In this respect of harmonization, the responsibility of legal persons is now affirmed for other health professions.
Finally, Title VII - Articles 12 and 13 of the Order - specifies the provisions applicable to Mayotte and the Wallis and Futuna Islands.
This is the subject of this order that we have the honour to submit to your approval.
Please accept, Mr. President, the assurance of our deep respect.
