Décret d’anesthésie de 1994, chirurgie ambulatoire et responsabilité médicale : nécessaires réflexions sur l’inévitable conciliation entre réglementation et recommandations

Day surgery is often considered as a marker of the necessity of reorganizing the hospital to take care globally and so better meet the expectations of improvement of the management of patients. But the actual deployment of day surgery can also act as a real revelation of the stakes of conciliation between the regulations, which supervise professional practices and organization, and the functioning of hospitals. Between the regulations supervising hospitals and professional practices and the place of the recommendations, between the general legal framework of the medical activity and specific legal framework (decree of anesthesia of 1994) and the Evidence-Based Medicine, the pretext of the improvement of the patient flow in day surgery, recommended by several institutions (Sfar, ANAP, HAS), questions about the legal obligation of the passage of all the patients in the postanesthesia care unit (PACU). Seen under the angle of a legal action against a medical doctor, the study of the French jurisprudence reveals that every practitioner has to respect the recommendations and the Evidence-Based Medicine, and this in the standardized frame of the MD's activity and the respect for a very strict legal environment. The question of an obvious conciliation between all these measures arises today clearly. In the case of a potential conflict, the key of resolution, based only on legal standards (constitution, laws, decrees), is not enough for arbitrating. Applying that the only respect for the decree of anesthesia would be enough for exempting itself from any contentious risk does not satisfy more. There is a real difficulty defining the legal precise nature of the recommendations, so best practices as better organization, which are more and more frequently. Even if these recommendations originally had not their place in the hierarchy of the legal standards, they are brought in there today. There is a real brake in the deployment of the day surgery because the strict respect for the decree of 94 on the systematic passage in PACU can be paradoxical with a better quality of the care. Twenty years after the publication of the decree of anesthesia, it seems essential to ask at first if it's possible to fast-track discharge without any stay in the PACU and thus of the inevitable conciliation between all these measures. Secondly it's necessary of modifying this decree to impulse the deployment of the day surgery.