Focus on the reform of the disciplinary procedure before the Order of Pharmacists

By Nathalie Boudet-Gizardin, counsel and Charlotte Dennis, trainee from the Health Department

Decree No. 2022-381 of March 16, 2022, published in the Official Journal on March 18, 2022, in-depth reform of the disciplinary procedure before the Order of Pharmacists and brings it closer to those applicable to the other jurisdictions of the Orders of health professions. 

This reform substantially modifies Articles R. 4234-1 et seq. of the Public Health Code. It will come into force on September 1, 2022. for complaints and requests registered with the registry of the first instance disciplinary chamber or the national disciplinary chamber from this date, unless otherwise specified.

Let's briefly review the main changes it introduces.

Expanding the actors who can bring disciplinary action before the College of Pharmacists 

The decree broadens the scope of persons who can initiate disciplinary action against a pharmacist or a legal person registered on the Roll of the Order of Pharmacists. 

Until now, could introduce such an action only: 

• the minister responsible for health, 
• the minister responsible for social security, 
• the Director General of the National Agency for the Safety of Medicines and Health Products or the Director General of the National Agency for Food, Environmental and Occupational Health and Safety for pharmacists in establishments under their control respective, 
• the director general of the regional health agency, 
• the prosecutor,
• the president of the National Council, of a central council or of a regional council of the College of Pharmacists,
•  a pharmacist registered on one of the rolls of the Order
•  a particular.

As of September 1, 2022, to this list are added: 

• the presidents of overseas delegations;
• the minister in charge of the economy,
• the minister in charge of the budget,
• the minister responsible for agriculture,
• the prefect of the department, 
• the medical advisers who are heads or managers of the medical control service placed with a social security fund or body, 
• directors of local compulsory health insurance bodies, 
• a union or association of pharmacists, 
• associations defending the rights of patients, users of the health system or people in precarious situations.

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The possibility of filing complaints and appeal requests electronically

As of September 1, 2022, complaints and requests for appeal may be filed or addressed, by any means, including dematerialized, to the president of the competent central or regional council. 

Then, the president of the central or regional council must acknowledge receipt to the author and send a copy to the pharmacist in question within fifteen days. Finally, he forwards the complaint without delay to the registry of the competent disciplinary chamber, except when the complaint emanates from a trade union, an association of pharmacists, a pharmacist or a legal person registered on the board of the order, or even an individual, associations defending the rights of patients, users of the health system or people in precarious situations, in which case a conciliation procedure must be implemented .

The new prerogatives of the Presidents of the Disciplinary Chambers

The decree of March 16, 2022 grants new prerogatives in terms of disciplinary litigation to the Presidents of the Disciplinary Chambers, exposed to thearticle R.4234-3 I of the public health code, in its new numbering.

As of September 1, 2022, the presidents of the first instance disciplinary chamber and of the national disciplinary chamber may, by reasoned order, without prior instruction: 

« Ruling on cases falling within a series which, without calling for a new assessment or qualification of the facts, present to be judged in law, for the court seised, questions identical to those which it has already decided together by the same decision which has become irrevocable , to those decided together by the same decision of the Council of State ruling in litigation and, for the disciplinary chambers of first instance, to those decided together by the same irrevocable decision of the national disciplinary chamber. »

The decree of March 16, 2022 thus establishes the possibility for the Presidents of the disciplinary courts of the Order of Pharmacists to issue series prescriptions, as provided since 2016 by article R.222-1 of the Code of Administrative Justice for administrative judges.

It is necessary to understand by series: The multiple appeals brought against the same regulation by a plurality of litigants finding themselves in similar situations and acting in dispersed order (R. Chapus, Administrative Litigation Law, Montchrestien, 12th ed., 2006, p. 905).

Another addition appearing in article R.4234-3 III, the President of the national disciplinary chamber can now:

• dismiss by order the requests directed against the reasoned orders taken without prior instruction by the President of the Disciplinary Chamber of First Instance, 
• cancel by order a previous reasoned order taken without prior instruction, provided that the case is settled on the merits. 

The possibility for the disciplinary chambers to render decisions in a restricted collegiate formation

On the model of the disciplinary procedure before the College of Physicians, it is now provided for in Article R. 4234-4 of the Public Health Code the possibility for the President of the disciplinary chamber of first instance to convene the chamber in a restricted formation, if he considers that the dispute justifies it, or on the contrary, to refer to the plenary formation a case examined by the restricted formation. 

The National Disciplinary Chamber may, for its part, meet in restricted formation, for any dispute when the request for appeal is manifestly unfounded or to examine appeals on decisions rendered in restricted formation. 

Supervision of the procedure within strict deadlines

New alignment on the disciplinary procedure before the College of Physicians, the Disciplinary Chamber of First Instance of the Order of Pharmacists now has a 6 months to decide, from the date of receipt of the complete file of the complaint or request. 

As a transitional measure, this trial period is however set at one year for complaints registered between September 1, 2022 and September 1, 2024.

Article R.4234-11 of the Public Health Code adds that " At the end of this period (6 months), any party may ask the president of the national disciplinary chamber to forward the file to another disciplinary chamber. This request does not have the effect of dismissing the Disciplinary Chamber of First Instance initially seized

When considerations of the proper administration of justice justify it, the president of the national disciplinary chamber may assign the case to a chamber which he designates. ».

Details of the remedies 

Faced with the silence of the public health code concerning the existing remedies against a decision rendered by the chambers of disciplines of the Order of Pharmacists, the decree of March 16, 2022 introduces completely new provisions in a section 6 entitled “ Remedy » relating in particular to opposition, recourse for rectification of clerical error, recourse for revision as well as the raising of a decision of cancellation or definitive prohibition.

A welcome rapprochement of this procedure with those applicable to the jurisdictions of other Orders of health professions, guaranteeing litigants and practitioners involved a better legibility of the operation of this specialized court.