The absence of training produces various consequences. It is sometimes believed that the
lawyers are competent, as claims for invalidation are filed regularly. On the other hand, it is also
observed that the procedure is misunderstood by the lawyers since the releases are always raised ex
officio by the judge. The lawyers rarely appeal, and thus there is very little case law on these
questions, often leaving the judges, the police officers, the hospital staff and administration with
no direction when faced with certain legal loopholes.
It therefore appears that the rare initiative of specific training for lawyers must
be encouraged, but it must be organised such that it does not change the
hearing of the JLD into a dispute with the institution on one side and the
patient on the other.
The remuneration of the lawyers is also subject to debate. Firstly, only cases that are pleaded
are effectively remunerated. However, in the case of hospitals that are far from the seat of the Bar,
the lawyers are obliged to travel for hearings that are sometimes cancelled at the last minute.
Scheduling efforts are therefore necessary to solve this difficulty, wherever it occurs.
The remuneration for legal aid is also an obstacle to the availability of lawyers. According
to a president of a Bar, “this legal aid pays a miserly sum that does not cover the economic costs
incurred by a lawyer for exercising his business. This is all the more evident when the lawyer
intervening in the hearing is an employee, as the payment made to the firm is not sufficient to cover
his hourly rate.”
Finally, note that since the decision of the legal aid office generally occurs two months after
the hearing, several patients with greater resources than the limit imposed by law were refused legal
aid and yet were billed the fees even though they did not wish to be assisted in the hearing but are
onliged to do so by law.
The question of the lawyer’s role and the terms of his involvement do not
seem to have been treated satisfactorily anywhere. Everywhere, one or
another aspect of this role faces obstacles or uncertainty, which harms the
interest of the patients.
The public authorities must, in consultation with each Bar of lawyers, ensure
the removal of the local obstacles to the presence of lawyers at the hearings
of the liberty and custody judge, and ensure that legal training specific to
hospitalisation without consent is offered to the lawyers concerned.
The Public Health Code states that after both sides have been heard, the judge will
give his ruling publicly. He may decide to hold or continue the debates in chambers if the public
nature of the debate violates privacy, if disturbances occur that affect the tranquillity of the court
or if one the parties requests such. This request is granted when it is made by the person subject to
the psychiatric treatment.
The material organisation of the hearing varies from one hospital to the other, and
sometimes even in the same institution when multiple judges are working. Some JLD use the place
reserved for them as the presiding chairman, while others organise the room as if for a meeting,
with all parties involved sitting around a table. The first arrangement emphasises the solemnity of
the session, while the second helps in relaxing the patient. The JLD can thus choose his position
and thereby provoke different reactions from the patients brought before him/her. The patients
are rarely invited to remain standing in the podium, since the JLD believe that allowing them to be
seated at the table helps in reducing stress.
Diverse attitudes exist as concerns wearing robes. Certain judges wear them to remind
others of the dignity and majesty associated with their role, while others believe that this formality
needlessly frightens patients, some of whom may have faced a criminal judge in the past. In the
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