How the Covid-19 health crisis is leading to a rethinking of territorial health competences in France
With France in the middle of its third national lockdown, the question of hospital capacities remains crucial. The country, which currently counts almost as many patients in intensive care as during the previous two waves, has been facing a series of interrogations about its hospital capacities and the organisation of its health care system. Since its beginning last year, the health crisis caused by the global pandemic of Covid-19 has brought back a debate about the role of the local authorities in healthcare organisation. Reports on the management of the crisis, in particular by the Parliament, have pointed to the shortcomings of the regional health agencies (ARS), thus calling into question the organisational scheme of decentralisation in France1.
As the saying goes, local authorities were "on the front line" during the coronavirus crisis. Their actions, while widely praised, were coupled with criticism targeted toward the centralised state that it “would not have been up to the challenge”2. The idea here is not to discuss or criticise the action of the French state during this crisis, but to understand how the pandemic led to a reconsideration of the organisation of health policies in the country.
Traditionally, health is a “matter of the state"3 and the public health code clearly states that "health policy is the responsibility of the State"4. Health, from a policy standpoint, is a responsibility of the central Government and therefore, the local authorities only have a few competences in the matter. The State pilots its health policy, defined by legislation, through the regional health agencies (ARS), whose actions have been strongly questioned during this crisis. Alongside this national health policy, we have been witnessing a "territorialisation of health" for about thirty years, for two main reasons: the inequality in access to care and the epidemiological differences across the territory. The ARS, that have been created in 2009, are today the recipients of this territorialisation, at the expense of the local authorities. This is the expression of France's tradition of deconcentrating power, not its tradition of decentralisation. The State, through the ARS, remains in control of its health policy. These agencies have three main responsibilities, the first of which is to implement at the regional level the health policy defined at the national level. The ARS then regulate the supply of health services at the regional level, and their third mission is to develop territories of health democracy.
At first sight, therefore, the State seems to manage its health policy alone. But the local levels also have competences, which makes the organisation of health policies in the country more complex. Without going over the details of each level, it can be noted that each of them has specific competencies. The municipality is undoubtedly the local authority whose role in health is the most important. In addition to its policing power and therefore its public hygiene responsibilities, it has several other responsibilities, ranging from health monitoring to the transmission of actual data to the regional health agencies, and the signing of agreements with the State for the implementation of specific health programs. The department is the key level in social and medical-social action. It therefore has competences in the field of health in this capacity. The regions are in a "paradoxical situation"5. Indeed, while the regional level has been promoted as the main framework for State health action at the local level, the regional council has only moderate powers6. Three main competences belong to the Regions: health prevention, training of health professionals and fight against territorial disparities (fight against medical deserts).
As previously mentioned, the Covid-19 health crisis has reopened a debate on the relationship between health and territory. But why? For several years, there have been increasing calls for the "decentralisation of health"7. It turns out that the Covid crisis has helped make this case and highlighted the competencies granted to communities, which are usually less visible than those of the State. The municipalities have played a key role in detecting and warning about Covid-19 clusters. They also tend to take initiatives in some areas usually covered by the State, even if these initiatives can be questioned. This is the case, for example, of the mayors of some French cities, who have ordered doses of vaccine in addition to those provided by the State. The departments play, and will continue to play, a very important role in the vaccination strategy. They also had a central role in the management of the crisis in the EHPAD (establishment for dependent elderly people), which are under their jurisdiction. Lastly, the regions have distinguished themselves through their relations with the ARS. They have created emergency equipment funds for health professionals, and their role in community-based medicine has increased in recent years.
At the same time, the ARS have been widely criticised. Elected officials and parliamentarians have widely criticised the regional agencies for their "inadequate crisis management". The ARS have been accused of managing the crisis in an overly distant manner, with a lack of transparency, and in an isolated manner, without consulting the prefects, making it more difficult to make decisions. However, criticism of the ARS is not new, and these bodies have not always been unanimously supported since their creation in 2010.
So how do we get out of this impasse? The "4D" bill for "differentiation, decentralisation, deconcentration and decomplexification" has long been expected as a new stage in decentralisation, and focused the hopes of elected officials for the reorganisation of territorial competencies. However, the future of this law remains uncertain, even if the Minister of Territorial Cohesion, Jacqueline Gourault, has assured that it will be presented before the end of President Macron’s five-year term. Furthermore, increasing decentralisation in health care involves the thorny issue of finances8. Centralisation of health care is justified by the large share of public spending on health in France.
Thus, the discussions and debates around this issue will not cease anytime soon and only pick up more steam. The health crisis will have restored this debate to its central place, and the country will need to respond to it once the pandemic is over. France must think in the long term about the decentralised organisation it wants for its public health policy. In any case, this issue will be at the heart of the regional and departmental elections that should be held in June or later depending on a potential postponement due to the pandemic. The debates will perhaps allow us to envision the future of French public health policy.
1 “Decentralisation” is about giving territorial authorities in France separate and defined responsibilities and resources and providing for the election of representatives by the citizens of those territories. This is different from “deconcentration” which is when government aims to improve efficiency by delegating certain policies and power to a centrally nominated representative.
2 As an illustration, Gérard Larcher, President of the Senate, stated that “the health crisis has shown the reactivity of local authorities in the face of a State failing to respond to the emergency"
3 Didier Truchet, Droit de la santé publique, Dalloz, 9e éd., 2016, p. 42
4 In its article L.1411-1
5 Anne Laude, Bertrand Mathieu et Didier Tabuteau, Droit de la santé, PUF, 3e éd., 2012, p. 183. Voir également en ce sens, Michel Laforcade, « Les partenariats entre ARS et régions », Revue de droit sanitaire et social, 2016, p. 443-450
6 Olivier Renaudie, « Le système sanitaire français est-il centralisé ? » : Revue générale du droit [on line], 2020, numéro 51926
7 On this topic, see for example : For example, see the press column by Cédric Arcos, lecturer at Sciences Po, and Guy Vallancien, member of the Academy of Medicine, published in 2019 in the newspaper Les Echos published in 2019
8 Olivier Renaudie, « Collectivités territoriales et compétences en santé publique : sortir de l’ambiguïté », Revue française d’administration publique, 2020, p.901