CASE OF MAURICE v. FRANCE
Violation of P1-1;No separate issue under Art.14+P1-1;No separate issue under Art. 6-1;No violation of Art. 13;No violation of Art. 8;Costs and expenses partial award - Convention and domestic proceedings;Just satisfaction reserved
Luzius Wildhaber;Nicolas Bratza
12. The applicants were born in 1962 and 1965 respectively and live in Bouligny. 13. In 1990 the applicants had their first child, A., who was born with type 1 infantile spinal amyotrophy, a genetic disorder causing atrophy of the muscles. 14. In 1992 Mrs Maurice became pregnant again. A prenatal diagnosis conducted at Nancy University Hospital revealed that there was a risk of the unborn child’s being afflicted by the same genetic disorder. The applicants chose to terminate the pregnancy. 15. In 1997 Mrs Maurice, who was pregnant for the third time, again requested a prenatal diagnosis. This was conducted at Briey General Hospital, which sent the sample to the molecular diagnosis laboratory of the Necker Children’s Hospital Group, run by Assistance publique-Hôpitaux de Paris (“AP-HP”). In June 1997, in the light of that laboratory’s diagnosis, Briey General Hospital assured the applicants that the unborn child was not suffering from infantile spinal amyotrophy and was “healthy”. 16. C. was born on 25 September 1997. Less than two years after her birth it became apparent that she too suffered from infantile spinal amyotrophy. On 22 July 1999 a report by the head of the laboratory at the Necker Children’s Hospital in Paris revealed that the mistaken prenatal diagnosis was the result of transposing the results of the analyses relating to the applicants’ family and those of another family, caused by the switching of two bottles. 17. According to medical reports, C. presents grave disorders and objective signs of functional deficiency – frequent falls from which she is unable to get up unassisted, unsteady walk, tiredness at any effort. She needs the assistance of another person (particularly at night in order to turn her over so as to prevent her from suffocating, since she is unable to turn over alone). She cannot sit on her own and moves around with an electric scooter. She has to receive treatment several times a week and cannot be admitted to school because the latter is not suitably equipped. Her family doctor has expressed the view that “one must have reservations until the time of puberty both about motor and respiratory functions and about possible orthopaedic deformations”. These facts gave rise to several sets of proceedings. 18. On 13 November 2000 the applicants submitted a claim to AP-HP seeking compensation for the pecuniary and non-pecuniary damage suffered as a result of C.’s disability. 19. They also submitted to the urgent applications judge at the Paris Administrative Court a request for an interim award and for an expert to be appointed. The latter was appointed by an order issued on 4 December 2000. 20. In an order made on 26 April 2001, the urgent applications judge at the Paris Administrative Court dismissed the request for an interim award on the ground that, as the expert had not yet delivered his report, “AP-HP’s obligation to pay [could] not be regarded as indisputable”. 21. The expert submitted his report on 11 June 2001, concluding that on the occasion of the prenatal diagnosis conducted at the AP-HP laboratory there had not been medical negligence, because “the techniques employed [had been] consistent with the known scientific facts”, but there had been “negligence in the organisation and functioning of the service causing the transposition of results between two families tested at the same time”. 22. The applicants lodged a further application, asking for the hospital to be ordered to pay them an advance of 594,551 euros (EUR). In an order made on 19 December 2001, the urgent applications judge at the Paris Administrative Court ordered AP-HP to pay an advance of EUR 152,449. He observed in particular: “... it is apparent from the investigation that in May 1997, at Briey General Hospital, a sample of amniotic fluid was taken from [Mrs Maurice] ...; that the analysis of that amniotic fluid was carried out by Assistance publique-Hôpitaux de Paris; that while the results given [to the applicants] indicated that the unborn child was not suffering from infantile spinal amyotrophy, they related to a sample taken from another family tested at the same time and did not mention that, the sample of amniotic fluid having been contaminated by the mother’s blood, they were attended by uncertainty; that [the applicants] are therefore entitled to argue that Assistance publique-Hôpitaux de Paris was guilty of negligent acts or omissions; that those negligent acts wrongly led [the applicants] to the certainty that the child conceived was not suffering from infantile spinal amyotrophy and that [Mrs Maurice’s] pregnancy could be carried to term in the normal way; that these negligent acts must be regarded as the direct causes of the damage sustained by [the applicants] from the disorder from which C. suffers; and that, this being the case, the existence of the obligation claimed by [the applicants] is not seriously open to challenge.” 23. AP-HP appealed. In its submissions it argued that, while the transposition of the analyses had indeed constituted negligence in the organisation and functioning of the public hospital service, the only result of that negligence had been to deprive the applicants of information apt to enlighten their decision to seek a termination of the pregnancy. On the basis of the above-mentioned expert report, AP-HP submitted that even if the samples had not been transposed, the results would have been uncertain, having regard to the presence of the mother’s blood in the sample taken. Consequently, the applicants would not in any case have had reliable information available to them. 24. In a judgment of 13 June 2002, the Paris Administrative Court of Appeal varied the order issued by the urgent applications judge, reducing from EUR 152,449 to EUR 15,245 the amount of the interim award to the applicants. In its judgment it observed: “Liability: ... after the birth [of C.], as the child had been found to be suffering from [infantile spinal amyotrophy], it emerged that the reason incorrect information had been given to the parents was that the results of the analyses carried out on two patients had been switched. It is not contested that the results were switched by the staff of [AP-HP] ...The negligence thus committed, as a result of which [Mrs Maurice] had no reason to request an additional examination with a view to termination of the pregnancy on therapeutic grounds, must be regarded as the direct cause of the prejudice suffered by [the applicants].” The court went on to say: “Entitlement to the interim award requested: ... the infantile spinal amyotrophy from which the child C. suffers is not the direct consequence of the above-mentioned negligence ... Accordingly, pursuant to the provisions ... of paragraph I of section 1 of the Law of 4 March 2002 [on patients’ rights and the quality of the health service – “the Law of 4 March 2002”], [AP-HP] would only be required to compensate the damage sustained by [the applicants], to the exclusion of the ‘special burdens arising throughout the life of the child’ from the latter’s disability, compensation for disability being a matter for national solidarity according to those same provisions. That being so, [AP-HP]’s plea that, for assessment of [the applicants’] right to compensation, the above-mentioned provisions of the Law of 4 March 2002 should have been applied to the dispute constitutes a serious defence against the applicants’ claim at first instance, in the amount awarded by the court below. If the above-mentioned legislative provisions ... are held to be applicable in the main proceedings now pending in the Paris Administrative Court, the only obligation [on AP-HP] which could be regarded as not seriously open to challenge would be the obligation to compensate [the applicants] . Consequently, the interim award [AP-HP] is required to pay should be reduced to that sum ...” 25. The applicants and AP-HP appealed on points of law. The applicants submitted only one ground of appeal to the Conseil d’Etat. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, they argued that the immediate applicability of the Law of 4 March 2002 to pending proceedings was contrary to the Convention. 26. Having been seised in the context of a similar case (Draon, also submitted to the Court, application no. 1513/03), the Conseil d’Etat ruled, in an opinion delivered on 6 December 2002, that the Law of 4 March 2002 was indeed applicable to pending proceedings and was compatible with the provisions of the Convention (see paragraph 52 below). 27. In a judgment of 19 February 2003 the Conseil d’Etat, ruling on the above-mentioned appeal on points of law, followed the line set out in that opinion, observing: “It is not seriously open to challenge that such facts constituting gross negligence [faute caractérisée] which deprived [the applicants] of the possibility of terminating the pregnancy on therapeutic grounds, confer entitlement to compensation pursuant to section 1 of the Law of 4 March 2002, which came into force after the ruling of the urgent applications judge at the Paris Administrative Court and is applicable to pending proceedings. It is appropriate, in the particular circumstances of the case, to set at 50,000 euros the amount of the interim award [AP-HP] is required to pay on account of the prejudice sustained by [the applicants] personally.” 28. Having received no reply from AP-HP two months after submitting their claim on 13 November 2000, and the absence of any reply amounting to implicit rejection, the applicants brought proceedings in the Paris Administrative Court. In their application they requested that the implicit rejection be set aside and AP-HP ordered to pay them, in particular, the following amounts: 2,900,000 French francs (FRF) (EUR 442,102) for the construction of a house and the purchase of a vehicle and a wheelchair; FRF 500,000 (EUR 76,225) in respect of non-pecuniary damage and disruption to their lives; FRF 10,000,000 (EUR 1,524,490) for pecuniary damage; and FRF 30,000 (EUR 4,573) in respect of the non-pecuniary damage suffered by their eldest daughter. 29. Following the opinion given by the Conseil d’Etat on 6 December 2002, the applicants submitted supplementary observations to the Administrative Court asking it not to consider itself bound by the Judicial Assembly’s opinion and to declare the Law of 4 March 2002 incompatible with the provisions of the Convention. AP-HP, for its part, again submitted that the prenatal diagnosis communicated to the applicants would have been uncertain even if the results had not been transposed. 30. In a judgment of 25 November 2003, the Paris Administrative Court ordered AP-HP to pay the applicants a total of EUR 224,500 (EUR 220,000 on their own behalf and EUR 4,500 on behalf of their eldest daughter) in respect of non-pecuniary damage and the disruption to their lives. It observed in particular: “LIABILITY: [The applicants] seek to establish [AP-HP’s] liability for the damage they suffered on account of the fact that their daughter C. was born with a disability not detected during pregnancy. ... The provisions of section 1 of the Law of 4 March 2002, in the absence of any provisions in the Law providing for deferred entry into force, are applicable under the conditions of ordinary law following publication of the Law in the Official Gazette of the French Republic. The rules which it lays down, as decided by the legislature on general-interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, are not incompatible with the requirements of Article 6 of the Convention ..., with those of Articles 13 and 14 of the Convention or with those of Article 1 of Protocol No. 1 to [the] Convention. ... The general-interest ground which the legislature took into account when laying down the rules contained in the first three sub-paragraphs of paragraph I justifies their application to situations which arose prior to the commencement of pending proceedings. Having regard to the wording of the Law of 4 March 2002, neither the fact that the system of compensation has not yet entered into force nor the fact that the mistaken diagnosis is alleged to have resulted from negligence in the organisation and functioning of the service are such as to bar application of the above-mentioned provisions to the present proceedings brought on 16 March 2001. The administrative courts do not have jurisdiction to determine the constitutionality of statute law. The appellants cannot therefore validly assert that the above-mentioned Law of 4 March 2002 is unconstitutional. [The applicants], whose eldest daughter suffers from infantile spinal amyotrophy, and who decided in 1992 to terminate another pregnancy after a prenatal diagnosis had revealed that the unborn child was afflicted by the same pathology, had a daughter named C. in 1997 who was discovered during 1999 to be likewise suffering from that disorder despite the fact that, in view of the results of the amniocentesis conducted on [Mrs Maurice], they had been told that the foetus was healthy. That information proved to have been incorrect because the results from two patients had been transposed. The investigation showed that the switch was imputable to [AP-HP], which runs the Necker Children’s Hospital on whose premises the sample had been analysed. The switching of the results constituted gross negligence [faute caractérisée] for the purposes of the Law of 4 March 2002. In order to absolve itself of liability, Assistance publique-Hôpitaux de Paris cannot effectively argue that, even in the absence of negligence, the diagnosis would not have been reliable because of the presence of the mother’s blood in the foetal sample, since in such circumstances it was incumbent on the practitioner responsible for the analysis to inform [the applicants] accordingly, so that they would then have been able to have a new sample taken. The gross negligence mentioned above deprived the applicants of the possibility of terminating the pregnancy on therapeutic grounds, for which there is no time-limit. Such negligence entitles them to compensation under the conditions laid down in section 1 of the Law of 4 March 2002 ...” 31. As regards assessment of the damage suffered, the court ruled as follows: “... firstly, the amounts sought in respect of treatment, special education costs and the costs of building a new house and purchasing a vehicle and an electric wheelchair relate to special burdens arising throughout the life of the child from her disability and cannot therefore be sums for which [AP-HP] is liable, regard being had to the above-mentioned provisions of section 1 of the Law of 4 March 2002; ... secondly, [the applicants] are suffering non-pecuniary damage and disruptions to their lives, particularly their work, of exceptional gravity, regard being had to the profound and lasting change in their lives resulting from the birth of a second severely disabled child; ... thirdly, the above-mentioned provisions of the Law of 4 March 2002 do not bar payment of compensation, under the rules of ordinary law, for the non-pecuniary damage suffered by A. Maurice;” 32. On 19 January 2004 the applicants appealed against the above judgment. The appeal is at present pending before the Paris Administrative Court of Appeal. 33. In a complaint submitted to the Prime Minister on 24 February 2003, the applicants requested payment of compensation in the sum of EUR 1,970,593.33 based on the State’s liability for damage inflicted by reason of the Law of 4 March 2002. 34. On expiry of the two-month time-limit following the lodging of their complaint, the applicants referred it to the Paris Administrative Court, requesting it to set aside the Prime Minister’s implicit decision to reject it and to order the State to compensate them for the damage they considered they had suffered. 35. In a judgment of 25 November 2003, the Paris Administrative Court dismissed the complaint. It observed in particular: “It is clear from the drafting history of the Law of 4 March 2002 that this provision is based, firstly, on the desire of the legislature not to require health-care professionals or establishments to pay compensation for the burdens occasioned by a disability not detected during pregnancy, and, secondly, on a fundamental requirement: the rejection of any discrimination between disabled persons whose disability would be compensated for in accordance with the principles of liability and those whose disability would be covered by national solidarity, their mother having refused an abortion or the disability being undetectable at the time of the prenatal diagnosis. This desire on the part of the legislature to eliminate any discrimination between disabled persons is a bar to the establishment [by the applicants] of the State’s liability by reason of the immediate application to pending proceedings of the Law of 4 March 2002, for the purpose of obtaining compensation for the special burdens arising from the disability, not detected during pregnancy, of their child C. Consequently, the [applicants’] submissions seeking the annulment of the contested decision and an order requiring the State to pay damages must be dismissed. ...” 36. The applicants appealed against this judgment. The appeal is now pending before the Paris Administrative Court of Appeal. 37. Before enactment of the Law of 4 March 2002 on patients’ rights and the quality of the health service (“the Law of 4 March 2002”), the legal position was established by the relevant case-law. 38. An action for damages brought by the parents of a child born disabled and by the child itself may come within the jurisdiction of either the administrative courts or the ordinary courts, depending on the identity of the defendant. If the defendant is a private doctor or a private medical laboratory, the dispute is referred to the ordinary courts. Where, on the other hand, as in the instant case, a public hospital service is involved, the dispute falls within the jurisdiction of the administrative courts. 39. The Conseil d’Etat gave judgment on 14 February 1997 (CE, Sect., 14 February 1997, Centre hospitalier de Nice c. Quarez, Recueil Lebon, p. 44). Mrs Quarez, then aged 42, had undergone an amniocentesis at her own request in order to verify the health of the foetus she was carrying. Although the result of that examination revealed no anomaly, she gave birth to a child suffering from trisomy 21, a condition detectable through the chromosome test carried out. The Conseil d’Etat held in the first place that the hospital which had carried out the examination had been guilty of negligence, since Mrs Quarez had not been informed that the results of the amniocentesis might be subject to a higher margin of error than usual on account of the conditions under which the examination had taken place. 40. Secondly, a distinction was drawn between the disabled child’s entitlement to compensation and that of its parents. With regard to the disabled child’s right to compensation, the Conseil d’Etat ruled: “In deciding that a direct causal link existed between the negligence of the hospital centre ... and the damage incurred by the child M. from the trisomy from which he suffers, when it is not established by the documents in the file submitted to the court which determined the merits that the infirmity from which the child suffers and which is inherent in his genetic make-up was the consequence of [an] amniocentesis, the Lyon Administrative Court of Appeal made an error of law.” On the other hand, with regard to the parents’ right to compensation, the Conseil d’Etat noted: “By asking for an amniocentesis, Mrs Quarez had clearly indicated that she wished to avoid the risk of a genetic accident to the child she had conceived, the probability of which, given her age at the time, was relatively high.” It went on to say that in those conditions the hospital’s negligence had “wrongly led Mr and Mrs Quarez to the certainty that the child conceived was not trisomic and that Mrs Quarez’s pregnancy could be carried normally to term” and that “this negligence, as a result of which Mrs Quarez had no reason to ask for a second amniocentesis with a view to abortion on therapeutic grounds under Article L. 162-12 of the Public Health Code, should be regarded as the direct cause of the prejudice caused to Mr and Mrs Quarez by their child’s infirmity”. 41. With regard to compensation, the Conseil d’Etat took into account, under the head of pecuniary damage, the “special burdens, particularly in terms of specialist treatment and education” made necessary by the child’s infirmity, and awarded the parents an annuity to be paid throughout the child’s life. It also ordered the hospital to pay compensation for their nonpecuniary damage and the disruption to their lives. 42. Thus the Conseil d’Etat did not accept that a disabled child was entitled to compensation on the sole ground that the disability had not been detected during the mother’s pregnancy. It did accept on the other hand that the parents of a child born with a disability were entitled to compensation and made an award not only in respect of their non-pecuniary damage but also in respect of the prejudice caused by the disruption to their lives and of pecuniary damage, specifying that the latter included the special burdens which would arise for the parents from their child’s infirmity (expenditure linked to specialist treatment and education, assistance from a helper, removal to a suitable home or conversion of their present home, etc.). 43. The judgment did not attract particular comment and led to a line of case-law followed thereafter by the administrative courts. 44. The case-law of the ordinary courts was laid down by the Court of Cassation on 17 November 2000 (Cass., Ass. plén., 17 November 2000, Bull., Ass. plén., no. 9) in a judgment which was widely commented on (the Perruche judgment). In the Perruche case a woman had been taken ill with rubella at the start of her pregnancy. Having decided to terminate the pregnancy if the foetus was affected, she took tests to establish whether she was immunised against the disease. Because of negligence on the part of both her doctor and the laboratory, she was wrongly informed that she was immunised. She therefore decided not to terminate the pregnancy and gave birth to a child who suffered from grave disabilities resulting from infection with rubella in the womb. The Court of Cassation held: “Since the negligence on the part of the doctor and the laboratory in performing the services for which they had been contracted by Mrs X. prevented her from exercising her choice of terminating her pregnancy in order not to give birth to a disabled child, the child may claim compensation for the damage resulting from that disability and caused by the negligence found.” Thus, contrary to the Conseil d’Etat, the Court of Cassation accepted that a child born disabled could itself claim compensation for the prejudice resulting from its disability. In this case, therefore, account was taken of the pecuniary and non-pecuniary damage suffered by both the child and the parents, including the special burdens arising from the disability throughout the child’s life. 45. It thus appears that in the same circumstances both the Court of Cassation and the Conseil d’Etat base their approach on a system of liability for negligence. However, the Court of Cassation recognises a direct causal link between the medical negligence and the child’s disability, and the prejudice resulting from that disability for the child itself. The Conseil d’Etat does not recognise that link but considers that the negligence makes the hospital liable vis-à-vis the parents on account of the existence of a direct causal link between that negligence and the damage they have sustained. Both lines of case-law allow compensation to be paid in respect of the special burdens arising from the disability throughout the child’s life. However, since the Conseil d’Etat considers that damage to have been sustained by the parents, whereas the Court of Cassation considers that it is sustained by the child, there may be significant differences in the nature and amount of such compensation, depending on whether the case-law of the former or the latter court is being followed. 46. The judgment of 17 November 2000 was upheld several times by the Court of Cassation, which reaffirmed the principle of compensation for a child born disabled, subject to proof where appropriate that the medical conditions for a voluntary termination of pregnancy on therapeutic grounds were satisfied (Cass., Ass. plén., three judgments of 13 July 2001, BICC, no. 542, 1 October 2001; see also Cass., Ass. plén., two judgments of 28 November 2001, BICC, 1 February 2002). 47. The Perruche judgment drew numerous reactions from legal theorists, but also from politicians and from associations of disabled persons and practitioners (doctors, obstetrical gynaecologists and echographers). The last-mentioned group interpreted the judgment as obliging them to provide a guarantee, and the insurance companies raised medical insurance premiums. 48. Both the Conseil d’Etat and the Court of Cassation took as their starting-point a system of liability for negligence. In French law, under the general rules on the question, the right to compensation for damage can be upheld only if the conditions for liability are first satisfied. That means that there must be prejudice (or damage), negligence and a causal link between the damage and the negligence. More particularly, with regard to the liability of a public authority, for compensation to be payable the prejudice, which is for the victim to prove, must be certain. Loss of opportunity constitutes certain prejudice, provided that the opportunity was a serious one. In the present case the prejudice resulted from a lack of information, or inadequate or incorrect information, about the results of an examination or analysis. In such a case, before the Law of 4 March 2002 was enacted, negligence falling short of gross negligence was sufficient. As to the relation between cause and effect, a direct causal link was established between the hospital’s negligence and the parents’ prejudice (see the above-mentioned Quarez judgment). 49. Still in the sphere of administrative law, the amount of compensation is governed by the general principle of full compensation for damage (neither impoverishment nor enrichment of the victim). Compensation may take the form of a capital sum or an annuity. According to the principle of the equal validity of claims for all heads of damage, both pecuniary damage and non-pecuniary damage confer entitlement to compensation. 50. The Law of 4 March 2002 put an end to the position established by the case-law mentioned above, of both the Conseil d’Etat and the Court of Cassation alike. Its relevant parts provide as follows: “I. No one may claim to have suffered damage by the mere fact of his or her birth. A person born with a disability on account of medical negligence may obtain compensation for damage where the negligent act directly caused the disability or aggravated it or prevented steps from being taken to attenuate it. Where the liability of a health-care professional or establishment is established vis-à-vis the parents of a child born with a disability not detected during pregnancy by reason of gross negligence [faute caractérisée], the parents may claim compensation in respect of their damage only. That damage cannot include the special burdens arising from the disability throughout the life of the child. Compensation for the latter is a matter for national solidarity. The provisions of the present paragraph I shall be applicable to proceedings in progress, except for those in which an irrevocable decision has been taken on the principle of compensation. II. Every disabled person shall be entitled, whatever the cause of his or her disability, to the solidarity of the national community as a whole. III. The National Advisory Council for Disabled Persons shall be charged, in a manner laid down by decree, with assessing the material, financial and non-material situation of disabled persons in France, and of disabled persons of French nationality living outside France and receiving assistance by virtue of national solidarity, and with presenting all proposals deemed necessary to Parliament, with the aim of ensuring, through an ongoing pluriannual programme, that assistance is provided to such persons ...” 51. These provisions came into force “under the conditions of ordinary law following publication of the Law in the Official Gazette of the French Republic” (see paragraph 52 below). Law no. 2002-303 was published in the Official Gazette on 5 March 2002 and it therefore came into force on 7 March 2002. 52. The Conseil d’Etat observed in particular: “... II. The date of the Law’s entry into force: The liability criteria set out in the second sub-paragraph of paragraph I of section 1 were enacted in favour of persons born with disabilities resulting from medical negligence whether that negligence directly caused the disability, aggravated it or made it impossible to take steps to attenuate it. They were laid down with sufficient precision to be applied by the relevant courts without the need for further legislation to clarify their scope. The different liability criteria defined in the third sub-paragraph of paragraph I of section 1 were enacted in favour of the parents of children born with a disability which, on account of gross negligence on the part of a medical practitioner or healthcare establishment, was not detected during pregnancy. They are sufficiently precise to be applied without the need for further legislative provisions or regulations. Admittedly, they bar inclusion of the damage consisting in the special burdens arising from the disability throughout the child’s life in the damage for which the parents can obtain compensation, and provide that such damage is to be made good through reliance on national solidarity. But the very terms of the Law, interpreted with the aid of its drafting history, show that Parliament intended to exclude compensation for that head of damage on the ground that, although there was a causal link between negligence and damage, that link was not such as to justify making the person who committed the negligent act liable for the resulting damage. In providing that this type of damage should be made good by reliance on national solidarity, Parliament did not therefore make implementation of the rules on liability for negligence which it had introduced subject to the enactment of subsequent legislation laying down the conditions under which national solidarity would be mobilised to assist disabled persons. It follows that, since the Law does not contain provisions for the deferred entry into force of section 1, and since in addition Parliament’s intention, as revealed by the Law’s drafting history, was to make it applicable immediately, the provisions of section 1 came into force under the conditions of ordinary law following the Law’s publication in the Official Gazette of the French Republic. III. Law no. 2002-303’s compatibility with international law: (1) ... The object of section 1 of the Law of 4 March 2002 is to lay down a new system of compensation for the damage suffered by children born with disabilities and by their parents, differing from the system which had emerged from the case-law of the administrative and ordinary courts. The new system provides for compensation, by means of an award to be assessed by the courts alone, for the damage directly caused to the person born disabled on account of medical negligence and the damage directly caused to the parents of a child born with a disability which, on account of gross medical negligence, was not detected during pregnancy. It prevents children born with a disability which, on account of medical negligence, was not detected during pregnancy from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from the disability throughout their lives, whereas such compensation had previously been possible under the case-law of the ordinary courts. It also prevents the parents from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from their child’s disability throughout its life, whereas such compensation had previously been possible under the case-law of the administrative courts. Lastly, it makes compensation for other heads of damage suffered by the child’s parents subject to the existence of gross negligence, whereas the case-law of the administrative and ordinary courts had formerly been based on the existence of negligence falling short of gross negligence. This new system, which was put in place by Parliament on general-interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, is not incompatible with the requirements of Article 6 § 1 of the Convention, with those of Articles 5, 8, 13 and 14 of the Convention, with those of Article 1 of Protocol No. 1 or with those of Articles 14 and 26 of the Covenant on Civil and Political Rights. (2) The last sub-paragraph of paragraph I of section 1 makes the provisions of paragraph I applicable to pending proceedings ‘except for those in which an irrevocable decision has been taken on the principle of compensation’. The general-interest grounds taken into account by Parliament when it laid down the rules in the first three sub-paragraphs of paragraph I show, in relation to the points raised in the request for an opinion, that the intention behind the last sub-paragraph of paragraph I was to apply the new provisions to situations which had arisen previously and to pending proceedings, while rightly reserving final judicial decisions.” 53. French legislation (see Law no. 75-534 of 30 June 1975 on orientation in favour of disabled persons, which set up the basic framework, and later legislation) provides compensatory advantages to disabled persons based on national solidarity in a number of fields (such as the right to education for disabled children and adults, technical and human assistance, financial assistance, etc.). In particular, the families of disabled persons are entitled to a special education allowance (allocation d’éducation spéciale – “the AES”). This is a family benefit paid from the family allowance funds, provided both the child and its parents are resident in France. The AES is granted by decision of the Special Education Board of the département in which the claimant lives, after the file has been studied by a multidisciplinary technical team. First the Special Education Board takes formal note of the child’s disability and assesses it. For entitlement to the AES, the level of disability found must exceed at least 50%. Where the disability exceeds 80%, entitlement to the AES is automatic; if the disability is assessed at between 50% and 80%, payment of the allowance is not automatic. It is subject to the child’s need for pedagogical, psychological, medical, paramedical and other forms of assistance. The AES is a two-level benefit: the basic allowance plus top-up payments. The first level is automatically payable where the conditions mentioned above are satisfied. The basic rate of AES is EUR 115 per month (the figure supplied by the Government on 16 March 2003). Where the child’s state of health requires substantial expenditure or the assistance of a third person, this may then confer entitlement to one of the six levels of AES top-up payments, which are added to the basic rate. The first five top-up payments depend on the level of expenditure required by the child’s state of health, the time for which the assistance of a third person is necessary, or a combination of both. The sixth level of top-up payment is for the most severe cases, where the child’s state of health requires the assistance of a third person throughout the day and the families have to provide constant supervision and treatment. 54. This Law emerged from a legislative process launched as far back as July 2002 with the intention of reforming the system of disability compensation in France. It was pointed out in particular that following the enactment of the Law of 4 March 2002 it was necessary to legislate again “to give effective substance to national solidarity” (see the Information Report produced on behalf of the Senate’s Social Affairs Committee by Senator P. Blanc, containing seventy-five proposals for amending the Law of 30 June 1975, appended to the record of the Senate’s sitting on 24 July 2002, p. 13). 55. The new Law makes a number of substantial changes. In particular, it includes for the first time in French law a definition of disability and introduces a new “compensatory benefit” to be added to existing forms of assistance. 56. To that end, the Law amends the Social Action and Family Code. Its relevant provisions are worded as follows: Title I: General provisions Section 2 “I. ... A disability, within the meaning of the present Law, is any limitation of activity or restriction on participation in life in society suffered within his or her environment by any person on account of a substantial, lasting or permanent impairment of one or more physical, sensory, mental, cognitive or psychological functions, a multiple disability, or a disabling health disorder. ... Every disabled person shall be entitled to solidarity from the whole national community, which, by virtue of that obligation, shall guarantee him or her access to the fundamental rights of all citizens, and the full exercise of citizenship. The State shall act as the guarantor of equal treatment for disabled persons throughout the national territory and shall lay down objectives for pluriannual action plans. ... II. – 1. The first three sub-paragraphs of the first paragraph of section 1 of Law no. 2002-303 of 4 March 2002 on patients’ rights and the quality of the health service shall become Article L. 114-5 of the Social Action and Family Code. 2. The provisions of Article L. 114-5 of the Social Action and Family Code, as amended by sub-paragraph 1 of the present paragraph II, shall be applicable to proceedings in progress on the date of the entry into force of the above-mentioned Law no. 2002-303 of 4 March 2002, except for those in which an irrevocable decision has been taken on the principle of compensation ...” Title III: Compensation and resources Chapter 1: Compensation for the consequences of disability Section 11 “ ... A disabled person shall be entitled to compensation for the consequences of his or her disability whatever the origin or nature of the impairment, or his or her age or lifestyle. That compensation shall consist in meeting his or her needs, including nursery care in early childhood, schooling, teaching, education, vocational insertion, adaptations of the home or workplace necessary for the full exercise of citizenship and of personal autonomy, developing or improving the supply of services, in particular to enable those around the disabled person to enjoy respite breaks, developing mutual support groups or places in special establishments, assistance of all kinds to the disabled person or institutions to make it possible to live in an ordinary or adapted environment, or regarding access to the specific procedures and institutions dealing with the disability concerned or the resources and benefits accompanying implementation of the legal protection governed by Title XI of Book 1 of the Civil Code. The above responses, adapted as required, shall take into account the care or accompaniment necessary for disabled persons unable to express their needs alone. The forms of compensation required shall be recorded in a statement of needs drawn up in the light of the needs and aspirations of the disabled person as expressed in his or her life plan, written by himself or herself or, failing that, where he or she is unable to express an opinion, with or for him or her by his or her legal representative. Section 12 Compensatory benefit ... I. – Every disabled person stably and regularly resident in metropolitan France ... above the age at which entitlement to the disabled child’s education allowance [formerly the AES] begins ..., whose age is below the cut-off point to be laid down by decree and whose disability matches the criteria to be laid down by decree, taking into account in particular the nature and scale of the forms of compensation required in the light of his or her life plan, shall be entitled to a compensatory benefit which shall take the form of a benefit in kind payable, at the wishes of the beneficiary, either in kind or in money. ... III. – The element of the benefit mentioned in point 3 of Article L. 245-3 [of the Social Action and Family Code] may also be claimed, under conditions to be laid down by decree, by beneficiaries of the [disabled child’s education] allowance [formerly the AES], where on account of their child’s disability they are likely to bear burdens of the type covered by that paragraph. ...” “Compensatory benefit may be used, under conditions to be laid down by decree, for: 1. burdens arising from the need for human assistance, including, where necessary, the assistance provided by family helpers; 2. burdens arising from the need for technical assistance, particularly the costs which remain payable by an insured person where such technical assistance forms one of the categories of benefit contemplated in point 1 of Article L. 321-1 of the Social Security Code; 3. burdens arising from adaptation of the home or vehicle of the disabled person, and any extra expenditure needed for his or her transport; 4. specific or exceptional burdens, such as those arising from the purchase or maintenance of products needed on account of the disability; ...” “The element of the benefit mentioned in point 1 of Article L. 245-3 shall be granted to any disabled person either where his or her state of health makes necessary the effective assistance of a third person for the essential acts of his or her existence, or requires regular supervision, or where he or she is obliged to incur additional expenditure through carrying on an occupation or holding elective office.” 57. The new compensatory benefit is initially payable in full to persons over the age at which entitlement to the AES (renamed “disabled child’s education allowance” by the new legislation – see section 12 above) begins. With regard to children, section 13 of the Law of 11 February 2005 provides: “Within three years from the entry into force of the present Law compensatory benefit shall be extended to disabled children. Within a maximum of five years those provisions of the present Law which distinguish between disabled persons on the ground of age in respect of compensation for the disability and payment of the costs of residence in social and medico-social establishments shall be repealed.” 58. The entry into force of the Law of 11 February 2005 is subject to publication of the implementing decrees. Section 101 provides: “The regulations implementing the present Law shall be published within six months of its publication, after being referred for opinion to the National Advisory Council for Disabled Persons. ...” 59. According to the information supplied by the Government, the new compensatory benefit should come into force on 1 January 2006. It is expected that it will be payable in full to disabled children by 12 February 2008. In the meantime, children will apparently receive only part of the benefit: only the costs of adapting a disabled child’s home or vehicle, or his or her additional transport costs, can already be financed by the new system.