“All the dikes have given way”

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By way of derogation from article L 1110-4 of the Public Health Code (on medical and professional secrecy) and “for the sole purpose of combating the spread of the Covid-19 epidemic”, personal health data affected people and people who have been in contact with them can now be treated and shared without their consent, as part of a “ information system Set up by the Ministry of Health. Sweet euphemism to name the two files that the government has just created to fight against the epidemic of coronavirus. Supplied by doctors and laboratories, the first file lists by name the results of serological and virological tests (SI-DEP, screening information system). The second base will collect the contact details of the people with whom the infected patients will have had “close contact”, thus presenting “a risk of infection” (Contact-Covid); Health Insurance and its “brigades” can then prescribe a test and direct them towards “medical prescriptions for prophylactic isolation”.

These data cannot be kept for more than three months and will be “strictly limited to virological or serological status”, specifies in its article 11 the law extending the state of health emergency. Promulgated on May 11, the text takes into account the censorship and reservations of interpretation issued by the Constitutional Council. A “control and liaison committee” is created “, responsible for associating civil society and Parliament in the deployment of the information systems provided for this purpose.

Not enough to reassure Bruno Py, associate professor of private law at the University of Lorraine, specialist in medical and criminal law. ” Big doctor is watching you! »He alarmed.

Le Point: What do you think of the new filing system that came into effect on May 11?

Bruno Py: It opens a new breach in the violation of professional and medical secrecy, and it is worrying. There have been precedents, I think of the recent provisions aimed at combating domestic violence, but, for the first time, this violation no longer occurs in the supposed interest of the patient, or even those around him, but in the name a public health imperative which, in my view, is more a matter of surveillance than health security. Everyone, in fact, almost agrees that the double filing that is being put in place will not be of much use in the fight against the spread of the virus.

Really ?

Supposing that secrecy had to be lifted, which I vigorously contest, and by placing ourselves solely on the ground of efficiency, it would have required digital tracing, massive screenings and tight brigades, in short, a device to Korean, means which we absolutely do not have in France. What are we talking about Doctors will alert Health Insurance, which will in turn try to reach people supposed to have been in contact with their patient. To offer them a test? By no means, at least not immediately. At first, they will be asked above all to stay at home, until they can actually test them. My colleague Caroline Zorn, in an article (“State of emergency for health data”, on Dalloz.actualité.fr), found the right formula when she explained that since the beginning of the epidemic, France has adapted permanently his methods to his means? who are weak? whereas the opposite should be done. We chose to test little, because we didn’t have tests; we locked up everyone when it should have been massively tested and targeted confinement. Today, we will identify the patients and turn them around, knowing that the PCR tests that will be used have a “false negative” rate of 30%. There will be holes in the racket, not to mention the “asymptomatic”.

Neither reliable and immediate diagnosis, nor treatment, of isolation at first: the zero degree of public health.

Read also Anti-Covid-19 brigades and the thorny issue of data confidentiality

What interest, then?

From my point of view, this formidably weak device has no other purpose than to provide the population with a feeling of security. For all the reasons I have just explained to you, it is in fact an illusion.

What should have been done?

Use what exists, namely the list of reportable diseases? thirty in total, mainly infectious. Plague, cholera, tuberculosis or chikungunya are there, so why not Covid-19? We said it because we don’t have enough reliable tests. The follow-up of people “contacts” which is proposed to us here? sorry, imposed? is a colorful sanitary watch. It is not for nothing that the High Council of Public Health and the ARS (regional health agencies) refused to organize things, letting Health Insurance take control. This body does control, not medicine.

All it took was a virus with a fatality rate of 1% for all the dikes to fail

The Minister of Health, Olivier Véran, clarified that if Covid-19 was not a notifiable disease, “it tasted, its color and its smell”?

You will see that it was not the choice that was made. The government has made the choice of monitoring the sick, their relatives and their contacts, creating files, a digital tool with unclear outlines, failing to be able to provide individual care and conduct a dignified prevention policy of this name.

When the AIDS epidemic started, the same questions were asked about the chains of transmission, the contact cases, the protection and the contagion of HIV positive people? How were they resolved? The order of doctors in 1994 resisted pressure from part of society, refusing to waive secrecy, a condition of the patient’s confidence in his doctor. In 1920, the same choice was made when the plague reappeared in several foci of contamination, in Saint-Ouen and Marseille, especially. Even under Vichy, the hospitals knew how to keep the secret, refusing to denounce the “terrorists” (the resistance fighters) whom they took charge of. Professor Louis Portes, president of the council of the order of physicians, had in his time theorized the idea according to which “there is no medicine without confidence, no confidence without confidence, no confidence without secret”. “Accepted in the privacy of people, I will keep the secrets that will be entrusted to me”, proclaims the Hippocratic Oath. The doctors’ code of ethics recalls that secrecy is not the privilege of a corporation, but a guarantee for the patient, an autonomous and responsible subject.

And now we let go while making us believe that by deviating from secrecy, we will get security. If I wanted to paraphrase Churchill (“You wanted to avoid war at the cost of dishonor, you have dishonor and you will have war”), I would say that with the law of May 11, 2020, we lost the secret without gaining security. I cannot understand why the order of doctors could have given in to fear and accepted this individualized and identifying surveillance. A virus with a fatality rate of 1% was enough for all the dykes to yield: on consent, medical confidentiality, the criminalization of prevention with the creation of an offense of not wearing a mask?

Read also Do Doctors Have the Right to Prescribe Chloroquine?

Let’s say it: a health check is taking place

Perhaps with an epidemiological aim: it is a question of identifying the sources of contamination in order to break the chains of transmission?

We had all the tools to do it, I am thinking in particular of the Sentinel network. We were able to manage things when the first foci of contamination were declared in Les Contamines, in the Oise or in Mulhouse. Except that here, it is no longer the patient’s interest that is at stake, but that of society. We are no longer talking about public health but about something else. I use the term surveillance, but let’s say it: the direct, immediate and permanent follow-up of infected people that takes place is an organized cop. Sanitary coping, of course, but coping all the same. Let me quote Michel Foucault, which describes a police and population grid system on the model of surveillance during the plague: “We must identify the carriers of evil, we must monitor them, even lock them up. ” Here we are ! Failing to act and prevent, we want to see everything about the epidemic, in any case to be able to see, so as to count the dead, the cured, the number of patients in intensive care?

Read also Deconfinement: “guardian angels” under the seal of secrecy?

What risks does the lawyer you are pointing in the device that is being set up?

The question is simple: does the end justify all means? In the rule of law, the answer is no. It requires respecting certain principles, including when the objective put forward to derogate from it is noble. We play sorcerer’s apprentices by accrediting the idea that medical confidentiality and respect for private life are obsolete and outdated values. By considering that what we will entrust to our attending physician will be found in the files of laboratories, pharmacists, occupational medicine or the Primary Health Insurance Fund, we undermine confidence, without which it n there is no medicine possible. Certain spheres of private life must remain inaccessible to state authority, health is one of them. Intimacy and privacy are the hallmarks of freedom.

Read also StopCovid: why lawyers don’t want it

The Constitutional Council censored several provisions of the text, also expressing some reservations of interpretation.

Indeed, and we must welcome this decision. The wise men acted quickly, they saw perfectly the problems which were posed. They recalled that there could be no deprivation of liberty without the judge’s supervision; they prohibited the access of data to persons whose function does not relate directly to the fight against the epidemic; they indicated that the identification data of an infected person could not be transmitted to their contacts without their authorization; that they cannot be kept indefinitely? The Council adhered to the principle of privacy and refrained from invoking medical confidentiality. Unfortunately, it could not be otherwise, no higher standard than the law protecting this secret.

This decision reminds us that the fear of illness, suffering and death cannot justify all means and the abandonment of all our principles. Will it be enough to preserve them? We can doubt it.

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