Question 36111 — fundamental rights

Summary

Ms. Frédérique Dumas draws the attention of the Minister of Solidarity and Health to the isolation and restraint measures practiced in psychiatry and to the need to strengthen controls over the latter, particularly with regard to minor patients. According to the report “The fundamental rights of minors in mental health establishments” published in 2017 by the General Controller of places of deprivation of liberty, a patient minor hospitalized in psychiatry has fewer rights and remedies than an adult hospitalized without their consent. According to the Technical Agency for Information on Hospitalization (ATIH), 18,257 minors were admitted to full psychiatric hospitalization for the year 2015, among which 197 were by decision of the State representative, 239 under a temporary placement order from the children's judge but also 42 at under article D. 388 of the code of criminal procedure (minors detained and admitted by decision of the prefect) and 5 under article 706-135 of the code of criminal procedure (after a decision of irresponsibility). In light of these statistics, we therefore note that hospitalizations of minors decided by a judicial judge constitute only 2% of the total hospitalizations of minors in psychiatry. 98% of complete hospitalizations of minors are currently decided by the holders of parental authority or by the director of the Child Welfare establishment in the case where the minor is placed in a home or foster family (Children's Social Welfare services). These hospitalizations of minors fall into the “free care” category of the public health code. However, according to the General Controller of places of deprivation of liberty, “the notion of free care, theoretically linked to that of free consent, is particularly delicate in psychiatry; it is not guaranteed by any document, materialized by any signature of the patient. With regard to minors, the decision to hospitalize belongs in the first place to the holders of parental authority or to the guardian; according to the public health code, it can also intervene at the request of the director of the establishment or department to which the minor has been judicially entrusted. In these hypotheses, which are all assimilated to free care, the decision does not belong to the minor even though the law requires obtaining his opinion. Still according to the General Controller of places of deprivation of liberty, "on minors, hospitalization can be completely imposed by a third party - their parents, or even the director of the establishment which welcomes them - without them benefiting from the guarantees recognized for adults in a comparable situation: it is not necessary to justify that they have mental disorders making their consent impossible; his mental state is not required to require immediate care accompanied by constant medical monitoring; it is not required that the request be accompanied by two detailed medical certificates dating from less than fifteen days, one of which comes from a doctor not practicing in the host establishment. And yet, this type of hospitalization, which is free only in name, is not subject to the control of the judge. Everything happens as if these “third parties” were presumed to act in the interests of the child, the doctor of the receiving establishment being the best guarantor.” In 2017, the Controller published 23 recommendations to reform the current law and strengthen the rights of minors in psychiatry, particularly in proposing the repeal of paragraph 2 of article R. 1112-34 of the public health code so as to eliminate the possibility of internment of a minor at the request of a director of a child welfare establishment; for the case of minors hospitalized at the request of their legal representatives, by allowing them to refer the matter to the departmental psychiatric care commission, and when they contest the need for hospitalization, by allowing them to refer the matter to the judge of freedoms and detention. This is why in France, more than 18,000 children and adolescents are placed in psychiatry. They are not informed of their rights and have no possibility of contesting psychiatric hospitalization before the courts, as is always the case for adults hospitalized under duress. A minor must be able to express himself and give his opinion on his hospitalization and having recourse means, being reminded that improper hospitalization with drug treatment can lead to serious deleterious effects. She therefore asks him what measures he intends to take to strengthen the rights of minors hospitalized in psychiatry and implement the recommendations of the General Controller of places of deprivation of liberty.

Machine translation from French. The official text remains authoritative.

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1. 1 September 2021

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