Medecine & Droit最新文献

Traditionally, a “direct and certain” causal link was required between fault and harm in order to engage an individual's compensatory liability. However, upon reading case law, it is possible to note that causality no longer necessarily has to be either direct or certain. Indeed, although the presence of a previous condition long enabled the exclusion of a direct link between a harmful event and its aftereffects, the French Court of Appeal (Cour de Cassation) now considers that pathological predispositions must no longer be taken into account (in respect of an exclusion or a reduction in the right to compensation) if these were latent, and only revealed by the harmful event. Similarly, on occasion the plaintiffs support their claims with bundles of evidence and arguments that can but force magistrates to set aside the absence of absolute certainty on a scientific level. Presumptions of accountability have even been put forward in some areas of personal injury compensation (traffic accidents and workplace accidents). The conduct and content of forensic expertises are then disrupted, both for the expert and for the victim's lawyer.

One of the most important tasks of any state is to provide everyone, including the child, with the opportunity for a healthy and fulfilling life. Processes of immunisation through vaccination are considered most appropriate for the prevention of infectious diseases. The purpose of this study is to understand the legal regulation of immunisation of the population and to give it a legal assessment, to review the legal acts on vaccination in different countries of the world and to identify the legal tendencies of resolving conflicts in the field of vaccination on the basis of court decisions. As a result of the research the prospective directions of work of civil and criminal regulation of vaccination of children, regulation of the right to education for children who have not been vaccinated, the lawsuits, petitions and court decisions regarding the population response to vaccinations were analysed. The authors of the study conclude on the methods of introducing mandatory vaccination of children, the development of new criminal legislation to protect rights and freedoms.

Under French criminal law, acts of gendered conformation imposed on intersex persons can be qualified as volontary violence and, in some cases, volontary mutilating violence. French doctors who perform these acts may be held criminally liable. They can be sentenced to up to 20 years of imprisonment.

Let us take advantage of this state of health crisis to promote within the committees a real ethics of the discussion on research practices.

Inasmuch as the constitution of the mens rea of any offence remains suspended to its integrity, the capacity for discernment represents a condition of accountability whose definition responds to issues that are as much technical – with respect to psychiatric and psychological penal expertise – as they are theoretical – with respect to our conception of criminal responsibility and the psychological prerequisites that underlie it. Now, the fact is that since its introduction in 1992 with article 122–1 of the Penal Code, this notion of discernment is characterized by a certain conceptual inconsistency, giving rise to a damaging plurality of meanings making the verb discern the condensed version of a heterogeneous network of distinct psychological functions. The polysemic term of discernment thus gives rise to a fundamental indetermination as to the nature of the faculty that must be examined in order to decide on its abolition or its preservation at the moment of the act. This is not without favouring the appearance and persistence of arbitrary interpretations, and consequently discordant expert conclusions. Even more problematic, however, is the idea of an alteration of discernment, given the irreducible discrepancy between the continuous nature of an alteration and the discontinuous nature of the conclusion to which the agent is subject, in that the legal demand requires a decision – in a discretization of what is continuous – between the presence and absence of something that is lacking. We will in fact show in what way this concept of alteration as it applies to discernment tends to be either meaningless, or redundant – and therefore useless – in relation to that of abolition. So much so that the only conceivable solution to maintain a certain gradation of degrees of non-accountability seems to consist in having to specify the different types of abolition of discernment potentially observed, and then to propose a hierarchization according to their greater or lesser compatibility with the conservation of a criminal responsibility. .

To facilitate the analysis and the management of claims related to the last Covid-19 pandemic, the DAJ of the AP–HP constituted a medical group assisted by lawyers intending to review the scientific knowledge and organizational measures during the first wave of this pandemic. This group brought together medical doctors with both scientific expertise in the main specialties requested during this viral infection and knowledge of repairing bodily damage. Based on the data provided by the hospital dashboards and the collection of hospital procedures for Covid-19 and non-Covid-19 patients, the goal of this group was to assess the level of scientific knowledge and organizational measures respectively at the start of the epidemic, its peak and at the end. During the three periods of this pandemic the main changes observed included a greater selectivity on admissions with increasing consideration on the patient's comorbidity; a continual evolution in drug management and more rigorous isolation measures with interruption of visiting rights. The target was to prevent contamination of the non-infected persons with an obsession to protect healthcare workers. The absence of selection for patients requiring intensive care for compensation of their respiratory failure forced AP–HP to double the number of intensive care beds and to refer some patients in other regions. In a context of unstable scientific knowledge and evolving organizational measures, the collection of these data should facilitate the management of claims related to Covid19 during the first wave of this pandemic and open a prospective study for the next pandemic.

Although of old and common use, the use of isolation and restraint in psychiatry was not regulated until 2016 with the creation of article L. 3222-5-1 of the Public Health Code. However, the Court of Cassation considered that, as a form of care, it was beyond the office of the liberty and custody judge to controle its implementation. Questioned by a plea of unconstitutionality submitted by the Court of Cassation, the Constitutional Council considered, with its decision of 19 June 2020, that these measures constituted a deprivation of liberty requiring judicial review at short notice. The Sages thus declare the provisions of article L. 3222-5-1 unconstitutional, with delayed effect as of December 31, 2020, requiring legislator to rethink and organise the supervision and control of decisions of restraint and isolation.

In the event of irregular composition of the ordinal jurisdiction or omission of certain compulsory particulars in the decision rendered, the parties may challenge the external regularity of the decision. The pleas based on the contested decisions are formal and procedural defects. If successful, these means result in the annulment of the decision ordering the doctor to be disciplined. These means constitute a separated legal cause and can only be invoked within the time limit for appeal, unless they are of public order.