Is the Freedom of Doctors to Prescribe Intact?

Minister Véran should perhaps not have used the words “must not”

Interim decision: the press release from the Minister of Solidarity and Health published on May 27th, 2020, cannot be regarded as likely to produce significant effects on the rights or the situation of health professionals or patients, tells us Me Krikorian reading the ordinance.

Historical

The Minister of Health issued a press release on May 27th, 2020 in which he wrote:

” … The decree published on May 27 once again draws the conclusions from the HCSP opinion and modifies the derogatory conditions for the prescription of hydroxychloroquine: whether in town or in hospital, this molecule should not be prescribed. for patients with Covid-19… ”

This press release resulted in what today can be characterized as one of the biggest fake news since all the media took it to heart and communicated that the minister had banned hydroxychloroquine. This “Must not” had a critical impact on all doctors and French people and caused general confusion.

One of the most surprising elements is the asymmetry in the processing of information on hydroxychloroquine. On May 27th, 2020, the Minister of Health made the press release with this ” Must not ” but, on July 11th, when this ban ended, there was no press release from the minister. Two weights, two measures.

Did the minister have the right to use such a formula?

The Publishing Director of FranceSoir, with the support of an informed reader Jean-Luc Duhamel and by the action of Me Philippe Krikorian, seized the summary judge on July 26th, 2020. We also brought this question before the Council state, in order to get a response.

The summary judge ruled and whose act:

“… The press release from the Minister of Solidarity and Health published on May 27, 2020 cannot be regarded as likely to have significant effects on the rights or the situation of health professionals or patients”.

Ms Krikorian says:

“The press release, therefore, has no effect for the judge, however, for many weeks it was interpreted by the media, patients and doctors as a ban. It is the sociological reality that we will retain and which has created a lot of confusion for nothing. The clarification requested on this subject is therefore important and continues to highlight the inconsistencies. ”

“A new paradoxical victory crowns our efforts to provide our fellows and fellow citizens with the protection of their health, a constitutional right guaranteed by paragraph 11 of the Preamble to the Constitution of October 27, 1946.”

Madame Pascale FOMBEUR, President of the First Chamber of the Litigation Section, summary judge, applied in her order of July 31, 2020, which was communicated on August 3rd, 2020.

In her ordinance of July 31st, the President proceeds to a neutralizing interpretation of the press release of the Minister of July 27th in which she sees no decision or soft law act. ”

Analyse de Me Krikorian

“By his press release of May 27th, 2020, the Minister of Solidarity and Health added to the regulatory provisions, which he wanted to extend to the prescribing power of doctors, in disregard of article L. 5121-12- 1, I CSP.

By affirming “(…) whether in town or in the hospital, this molecule should not be prescribed for patients with Covid-19. (…) ”, The executive authority aimed to significantly influence the behaviour of prescribing physicians, by leaving the refractory fears of disciplinary proceedings, particularly in view of“ the ethical obligation incumbent on health professionals by virtue of the provisions of the public health code which are applicable to them, to provide the patient with care based on data acquired from science, as they emerge in particular from these best practice recommendations.

However and beyond the differences of assessment between the State judge, on the one hand and civil society – from which the Lawyer, auxiliary in justice proceeds – on the other hand, it is necessary to retain from the decision which has just been issued that the press release published on May 27, 2020 on the website of the Ministry of Solidarity and Health, – of which it is not, moreover, said that it was not intended to significantly influence the behaviour of prescribing physicians -, “(…) cannot be regarded as likely to have significant effects on the rights or the situation of health professionals or patients. (…) ”.

According to Mr. Krikorian, “the press release of the Minister of Solidarity and Health leaves intact the freedom of prescription of doctors.”

This was, perhaps, obvious to some, but not to all. The referral to the Council of State, which before May 27th, 2020, nothing predetermined (chance), except the thirst for truth and justice, definitively removed from the press release criticized any legal effect (necessity).