A decree puts an end to the general and absolute advertising ban for doctors
The ban on advertising by doctors was repealed by decree in order to comply with European law.
The CJEU had indeed ruled in 2017[1] that such a ban was contrary to the letter of Article 56 of the Treaty of the European Union. Shortly thereafter[2], the State Council aligned itself with the European position in order to have Article R. 4127-19 paragraph 2 of the Public Health Code (hereinafter “CSP”) repealing the said prohibition[3].
It is now a done deal since the decree n°2020-1616 of December 22, 2020 came in force three days later, thus modifying the deontological rules of the medical professions for more liberal[4] provisions.
Article R. 4127-13 of the CSP required the doctor to refrain from any form of advertising either for himself or for an organization in which he practices or to which he gives his assistance. The part prohibiting advertising has been abandoned by the reform in favour of another formula which states that the doctor “does not aim to benefit from his intervention in the context of his professional activity”, either for himself or for an organization to which he is linked.
At the heart of the reform is article R. 4127-19 of the CSP, the first paragraph of which has been maintained, provides that medicine must not be practised as a business. The second paragraph, laying down the general and absolute prohibition of advertising, has been deleted in its entirety in favour of two new articles: R. 4127-19-1 and R. 4127-19-2. The latter detail and frame the process by which advertising and communication may be conducted. Thus, the practitioner can now communicate to the public, freely and by any means, information likely to enlighten the patient in his choice of doctor. This information includes, in particular, information relating to the patient’s “professional skills and practices, his or her career path and the conditions under which he or she practices”.
This communication must respect the ethical rules and dignity of the profession, and must be “fair and honest”, not rely on the testimony of a third party and not be comparative. In addition, it must not be used as a means of encouraging unnecessary patient care or misleading the public.
Furthermore, the decree opens up a new possibility for the practitioner: to communicate by any means, to the public or health professionals, information for educational or health purposes, provided that it is scientifically substantiated and relates to his or her discipline or public health issues. The practitioner must, however, be vigilant to the value of the information communicated and formulate it with prudence and moderation.
Article R. 4127-53 of the CSP now stipulates that a physician who communicates to the public about his or her activity, particularly on a website, must henceforth disclose information on the fees charged, the methods of payment accepted and also the obligations imposed by law to allow any person access to prevention or care.
Also, the health professional is now authorized to include, on his prescriptions and other professional documents, as well as on a plaque at the entrance to his place of practice and in directories, several new pieces of information, including: his titles, diplomas and functions when they are recognized by the national council of the order, and his honorary distinctions recognized by the French Republic.
It may also, on its website, in the directories, and on its orders and official documents, include any information it deems useful to the public, provided that it takes into account the recommendations issued by the National Council of the Order.
Finally, article R. 4127-82 of the CSP has been amended so that it is now permitted for doctors, when setting up or modifying his activity, to have it published in any medium and not only, as was the case before the reform, in the press.
Despite this relaxation allowing health professionals to use advertising, several prohibitions remain or have been added: priority digital referencing (Article R. 4127-80 of the CSP); usurpation of titles, the use of titles not authorized by the National Council, and all procedures designed to mislead the public about the value of its titles (Article R. 4127-30-1 of the CSP); and finally, for organizations to which the physician is linked, to use his or her name or professional activity for commercial purposes – and no longer for “advertising” purposes as was the case before the reform (Article R. 4127-20 of the CSP).
It should be noted that five other decrees were published on the same day, modifying the corresponding codes of ethics for dental surgeons, chiropodists, nurses, midwives and physiotherapists.
By the IP/IT team of the UGGC Law Firm
Source : Legifrance
[2] https://www.legifrance.gouv.fr/ceta/id/CETATEXT000039335844
[4] https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000042731060