Sciences médicales et droit

How does Law unravel and seize Medicine? The relationship between Law and Medicine is tremendously complex. At first sight, Law understands medicine as being a medical science, an applied science, and imposes requirements in this regard, such as respect for the “established scientific knowledge” or “tested medical knowledge”. But Medicine turns out to be “Art”, a clear and authentic expertise which requires techniques reiteration. Seen by Law, Medicine is not classified into either both of these scientific or technical dimensions. Borrowing from human sciences also allows to set requirements for medical humanism.     

Argumentation et droit constitutionnel: le juge constitutionnel et la dépénalisation de l'avortement

Argumentation et droit constitutionnel: le juge constitutionnel et la dépénalisation de l'avortement     

Déontologie et santé publique en droit constitutionnel

Ethics, even if there is a renewed interest today, has long been important in the public health domain, keeping constitutional law at a distance for the benefit of a relative autonomy of the medical field. However, the indifference between sanitary ethics and constitutional law tends to become less marked because of the appearance of a double opposite movement, consisting on the one hand of a public “déontologisation” of health law, including constitutional law and, on the other hand, in a constitutionalisation of ethics regarding public health. This evolution sets up as an arbitrator of State interventionism a Constitutional Council originally reluctant to check the intervention of public authorities in the field of health.     

Le consentement en droit médical

Medical law, which derogates from ordinary law, interests and questions by its particularities. However, the Mercier decision of 1936 seems to have denied this by forcing an ordinary “medical contract” between the doctor and his patient. But the medical relationship, far beyond a contractual logic, seems to be unable to blend into the civil law elements of contract law. As such, consent, keystone of this medical matter, does not meet the standards of contract law yet imposed by the Court of Cassation. This article aims to unravel and clarify the scope and regime of this consent not quite like the others.     

Réflexions d’un médecin expert et d’un juriste autour d’un exercice pratique de droit médical

We offer a reflection around a clinical case of nosocomial infection allowing us to address the difficulties faced by experts and lawyers and other jurists in matters of medical liability. This case is the result of an exercise proposed within the framework of the national DIU (interuniversity diploma) in medical accidents for which the two authors are responsible in Amiens and Bordeaux. The writing was enriched with the responses of the students. This clinical case makes it possible to approach the compensation for nosocomial infections, to compare the amicable procedure before the conciliation and compensation commission for medical accidents and the procedure before a judicial or administrative jurisdiction. Finally, the reflection focuses on patient information, especially protected adult, and access to the medical file. It is not a question here of detailing the medical care but of discussing medical responsibility and the rights of the patients.     

Le droit de recours en matière d’autopsies médico-légales

The decision to carry out forensic autopsies is frequently made to determine the reasons of the death, especially in cases of non-natural death. In Switzerland, the judge strictly controls the authorisation to conduct forensic autopsies and the possibility to appeal against such a decision remains limited. This article aims to analyse the legal framework that enables appeals against a decision to conduct a forensic autopsy, taking into account the jurisprudence from the High Court of Switzerland (Tribunal Fédéral) and the European Court of Human Rights.     

La décision médicale et la relation médecin–patient en oncologie

The announcement of the cancer diagnosis and his treatment is an important moment in the set up of the doctor–patient relationship. The law of contracts has long governed the relationship between the doctor and the patient. But the legislature clearly demonstrated its will to consider the patient as full actor of his health, leaving the regime of medical decision, the shared decision. This shared decision is based on an obligation to inform the patient on his health and knows many exceptions (minor patients or adults under guardianship, emergency). In Oncology, the medical decision is a decision coordinated between doctors in the multidisciplinary consultation meetings. This decision is considered as a guarantee of the quality of the medical care. It does not preclude the time of the doctor–patient relationship.     

Le juge,le médecin et le détenu. Regard critique sur la suspension de peine pour raison médicale

The purpose of the article is to give a critical view of the “suspension médicale” (a kind of compassionate release), which is often considered as a “humanist” law. Based on a research conducted on the experience of prisoners at the end of their lives, it appeared that many more or less objective criteria are involved in the decision-making process. In this context, physicians and magistrates try to articulate their actions according to expertise. The decision of granting or refusal also depends on the perception of the prisoner's personality. The application of the law thus reflects the tensions and alliances between medicine and justice in the treatment of a deviant and vulnerable population.