In fact, the law imposes the provision of a courtroom that ensures the clarity, security and
fairness of the debates, along with access for the public. It must have a nearby room for
deliberations and a room that allows a confidential interview with the patient and his/her lawyer.
This courtroom is allocated to the Ministry of Justice, and is specially arranged in the premises of
the host institution, under the circumstances and according to the terms provided by an agreement
concluded between the TGI and the regional health agency (ARS).
In practice, these provisions are not applied equally, without necessarily harming the rights
of the patients. In multiple cases, the room used as the courtroom, selected in consultation with
the hospital administration, is a meeting room, sometimes used as such, but always arranged
properly before a hearing is held. No agreement is signed between the institution and the court,
and the specifications that were determined in 2011 by the Ministry of Health are not complied
with. The requirements that they impose were deemed to be “draconian”. However, the parties
involved consider that everyone finds this room suitable and that this choice, as well as its layout,
are not sources of difficulties. In these situations, the material provisions appear, according to the
inspectors, to respect the dignity of persons deprived of liberty and all of the parties involved
(judge, patients, medical staff, administrative staff) are satisfied with the provisions.
The difficulty in permanently assigning a courtroom that complies with the
standards set by law is therefore not valid to justify discontinuing mobile
hearings. It is the responsibility of the supervisors of the healthcare
institutions and the Minister of Justice to ensure this.
The law states that the person under psychiatric treatment without consent is to be
heard, assisted or represented by a chosen lawyer, appointed as a legal aid or appointed by the
Court. In practice, this provision is not applied equally.
Sometimes, lawyers are not even present. The president of the Bar states that sometimes,
in an institution that is far from the court, “a colleague cannot be forced to spend half a day
travelling to such a place with the current conditions of remuneration”. Earlier, when the hearings
were held via videoconferences, the lawyers were present beside the JLD.
In several institutions, the patients do not often ask to be assisted by a lawyer; “I can’t
imagine how they are given this option” states one of the spokespersons of the CGLPL.
For several hospitals located in the area where the court is located, the president of the Bar
has established a list of Court-appointed lawyers, who volunteered for the task and specialise in
matters of healthcare without consent. The lawyers are appointed in turns to the role of counsellor.
Therefore, there is no difficulty in the lawyers being present. Several times, the CGLPL also noted
that a board showing the Bar association is not displayed anywhere in the institution.
Specific training for lawyers in assisting patients hospitalised without consent is rare.
However, when it exists, it is observed that the development of the competence of the defence
forces the administration to strengthen its own arguments, which most often backs the decisions
of the judge. In a city where lawyers voluntarily attend a training course organised by the Bar twice
a year, they were quickly aware of the specificities of the procedure and numerous releases were
thus obtained. In light of this situation, the director of the institution himself called on a lawyer to
represent the hospital “in order to balance the debate and ease tensions. The lawyer can reply to
the judge’s questions when interrogated on the functioning of the hospital”. Nevertheless, this
practice is not free from ambiguity. In fact, in the hearing, this lawyer does not restrict himself to
replying to any possible questions of the judge, but challenges each dossier before the patient’s
lawyer, thus giving the debates a contentious connotation that is not compatible with the spirit of
the law.
18
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