On 11th June 2010, the Constitutional council declared conform to the Constitution (1) the law of 4th March 2002, called anti-Perruche law.
This law was questioned by the mother of a myopathic child, Mss Viviane L., who seized the Constitutional council on 14th April 2010 within the framework of a priority issue of constitutionality (PQC). She questioned the rules of responsibility recognised by the article 1 of the law which sets forth that "no one can take advantage from a prejudice for the sole fact of his birth” and specifies that “when the responsibility of health professional or facility is involved towards the parents of a child born with a non detected disability during pregnancy due to a characterised error, the parents can ask for a compensation for their sole prejudice. This prejudice does not include the particular charges resulting from, all along the life of the child, this disability. The compensation for this latter is a matter for national solidarity.” For maître Lyon-Caen, petitioner’s lawyer, the prohibition sets up by the law would be in contradiction with the constitutional principles of responsibility and integral compensation.
Decision of the Constitutional Council
Concerning the first paragraph of the article L.114-5 of the Family and Social Action Code which prohibits the child to claim for compensation for a prejudice for the sole fact of his birth, the decision of Wise Men establishes that “fixing this rule is a matter of the appreciation of the legislator” who as it happens, did not be unaware of the principle of equality in the measures taken: "from one hand, health care professionals and facilities are not exempted from any responsibility. From another hand, the criteria kept by the legislator, relative to the child born with a disability and to the error at the origin of the disability, are directly related with the object of the law".
The Constitutional Council has also examined the third paragraph of the article L.114-5 of Family and Social Action Code which restricts the conditions of challenging the medical responsibility to the existence of a "characterised error": "in this particular case, the legislator prohibits the parents to obtain, by challenging the medical responsibility, the compensation for the prejudice resulting from the charges of disability. From one hand, the compensation for this disability is at the charge of the national community. From another hand, such a rule does not establish a general irresponsibility of health care professionals and facilities […] for all these reasons, the limitation of the compensable prejudice decided by the legislator does not have a disproportioned character. It is not contrary to any right or freedom the Constitution guarantees."
On the other hand, the Constitutional Council judged against the Constitution the retroactivity of the law. Thus the cases initiated before March 2002 are not concerned. This provision as to form does not challenge the principles of the law. The Collective against Handiphobia, which summoned the State for gross negligence in the exercise of the justice after the vote of Perruche judgement, is delighted at the Council's decision: “It is a success for disabled people and their families”.
(1) Décision n°2010-2 QPC du 11 juin 2010