Law No. 1.516 of 23 December 2021 on unconventional practices contributing to well-being

Law no. 1.516 of 23 December 2021 on unconventional practices contributing to well-being (published in JDM no. 8572 of 7 January 2022) is the result of bill no. 1032, received on 19 April 2021 by the National Council and voted on 15 December 2021 (which followed on from bill no. 247 on unconventional healthcare practices).

Purpose of the reform

The main purpose of Law No. 15.16 is to regulate care practices that are not scientifically recognised by conventional medicine.

It also recasts the offence of abuse of weakness ("fraudulent abuse of a state of ignorance or a situation of weakness").

The regulation of care practices that are not scientifically recognised by conventional medicine, is motivated by the observation that this “complementary approach” to medical acts “is more and more widely adopted by patients and health professionals”, and is part of a “policy that is more open to the feelings and needs of the population.” (Report on Bill No. 1032, p. 2)

This is in line with the World Health Organization’s (WHO) “Strategy for Traditional Medicine 2014-2023”, “which encourages Member States to take advantage of the potential contribution of these disciplines to the well-being and health of people, and to promote their safe and effective use, through regulation and integration of these practices into the health system” .

Articles 1 to 17 of Law No. 1.516 regulating non-conventional practices came into force on 8 January 2023 (1 year after its publication in the Journal de Monaco).

The following persons shall have a period of one year from the entry into force of Law No. 1.516 to comply with it:

— any person who, on the day of its entry into force, carries out a non-conventional practice contributing to well-being on the basis of a declaration or authorisation, in accordance with the provisions of Law No 1.144 of 26 July 1991 concerning the exercise of certain economic and legal activities, as amended. Failing this, the declaration or authorisation shall be null and void in order to carry out the said practices.

— Health professionals* who, on the day of its entry into force, exercise a non-conventional practice contributing to well-being. Failing this, they may not continue to exercise this practice.

* Any person who exercises a professional activity in the health care sector subject to a particular legislative or regulatory status or whose title is protected, namely any person exercising the profession of doctor, dental surgeon, midwife, psychologist or osteopath or a profession of pharmacy or medical auxiliary.

* * *

SUMMARY

1/ Abuse of weakness

Act No. 1.516 rewrites the provision of the Criminal Code concerning fraudulent abuse of a state of ignorance or a situation of weakness (Article 335 of the Criminal Code has become Article 278-1, located in a new Section V bis) on the model of French law (Article 223-15-2 french Criminal Code).

The offence of abuse of weakness consists of the use of serious or repeated pressure or techniques designed to alter judgement, in order to lead the person to an act or abstention that is seriously prejudicial to him or her.

The penalties incurred have been increased (imprisonment from 6 months to 3 years and a fine of €18,000 to €90,000) and an aggravating circumstance targeting sectarian groups has been created (when this offence is committed by the de facto or de jure leader of a group which pursues activities with the aim or effect of creating, maintaining or exploiting the psychological or psychic subjection of the persons who participate in these activities, the maximum penalties have been increased to 5 years' imprisonment and a fine of €750,000).

The majority of victims are older people, with almost all Monegasque court decisions concerning people over 70. Unlike the victims, there is no typical profile of the perpetrators, who can fall into any socio-professional category: domestic help, cleaning lady, housekeeper, relatives, people who intrude on intimate life, people who take advantage of their work to embezzle money, care staff, etc.

In practice, the vulnerability of the victim is a difficult element to prove, as is whether or not the perpetrator was aware of this vulnerability. For example, although the victim's advanced age is a criterion of weakness or vulnerability, it does not in itself constitute proof. The person's state of vulnerability must be demonstrated (medical certificates, medical, psychological and psychiatric expert reports; testimony from doctors, relatives, neighbours, bank account manager, etc.).

2/ Non-conventional practice contributing to well-being

♦ Definition of non-conventional wellness practice:

Non-conventional practice contributing to well-being is defined as "any practice aiming to contribute to the well-being of the person on whom it is implemented, whose desired effect is his physical or psychological comfort, without the proof of its effectiveness being admitted by the scientific community."

Law No. 1.516 aims to establish "a fair balance between, on the one hand, a desire to recognise these practices, through the establishment of an autonomous authorisation system, and, on the other hand, the protection of users, through the establishment of an Advisory Commission, responsible for issuing an opinion within the framework of the implementation of the list of practices". (Report on the bill n° 1032, p. 8)

♦ List of non-conventional practices contributing to well-being that can be exercised:

The list of non-conventional practices contributing to well-being that can be exercised is fixed by ministerial order* (and revised annually), after the opinion of the consultative commission instituted** "on the basis of objective criteria, making it possible to ensure the protection and safety of persons. These objective criteria take into account in particular the level of risk incurred for the physical, psychological or mental health of persons".

* Ministerial Order no. 2022-722 of 14 December 2022 (JDM no. 8622 of 23 December 2022) sets out the list of non-conventional practices that may be practised in Monaco as follows: art therapy, fire cutting, animal mediation, meditation, modelling, reflexology, reiki, shiatsu, sophrology.

** Composition of the Consultative Commission whose operating rules are set by ministerial order: - Director of Economic Expansion, or his representative; Director of Health Action, or his representative; - President of the Council of the Order of Physicians, or his representative; - President of the Council of the Order of Pharmacists, or his representative; - one person chosen by the Minister of State from among the members of entities considered to be representative of the interests of health professionals who do not have an ordinal body; - two persons chosen by the Minister of State because of their qualifications in the field of non-conventional practices contributing to well-being. The President of the Advisory Commission is chosen by the Minister of State from among its members, who are appointed by ministerial decree for a period of three years.

♦ Prior authorisation from the Minister of State and conditions for the independent practice:

Any health professional authorised, in whatever capacity, to practise his or her art in the Principality who intends to practise, on an independent basis, a non-conventional practice participating in wellness included in the above-mentioned list must obtain an authorisation (personal and non-transferable) issued by the Minister of State.

The applicant may be granted several licences for the exercise of several non-conventional wellness practices.

Authorisation to practise may only be issued to a natural person of Monegasque nationality as a matter of principle, or by derogation depending on the needs of the Principality and in order of priority, to the spouse of a person of Monegasque nationality, to a person residing in the Principality or, where applicable, to a person residing outside the Principality.

These persons must also prove that they have the necessary conditions and qualifications, enjoy civil and political rights and offer every guarantee of good character, as well as proving an adequate knowledge of the French language.

♦ Professional activity - status and insurance:

Apart from health professionals practising in a health establishment, the person authorised to carry out a non-conventional practice is considered to be carrying out a non-salaried professional activity within the meaning of Law No. 644 of 17 January 1958 on the retirement of self-employed workers, as amended, and Law No. 1,048 of 28 July 1982 instituting a system of social benefits for self-employed workers, as amended.

Any authorised person (or the health establishment if the health professional concerned practices there) must take out a professional liability insurance policy.

♦ Places where non-conventional practices involved in wellness can be carried out:

• Home of the person on whom the practice is performed;
• Public or private health establishment (subject to management authorisation);
• Any premises whose use is or will be dedicated to this purpose.

Possibility of domiciling one's activity in premises used for residential purposes in compliance with the conditions for domiciling a professional activity provided for, as the case may be, by law no. 1.490 of 23/06/2020 relating to the domiciliation of a professional activity in premises used for residential purposes which are owned by the State, or by law no. 1.235 of 28/12/2000 relating to the conditions for renting certain premises used for residential purposes which were built or completed before 1 September 1947.

When the premises are in the free residential sector, the owner's authorisation is required and the co-ownership regulations must not prohibit it.

♦ Administrative and criminal sanctions:

Law 1.516 provides for administrative sanctions of suspension or revocation of the licence to practice. Suspension or revocation may be pronounced without the holder having been heard in his explanations or duly called to provide them. In the event of an emergency relating to the safety of persons or a danger to health or a risk to public hygiene, the authorisation may be immediately suspended as a precautionary measure by the Minister of State for a maximum period of three months, renewable once.

Under the penal sanctions provided for by the Law:

• Anyone who carries out a non-conventional practice contributing to well-being that is not on the list established by ministerial order (fine of €18,000 to €90,000).
• Anyone who, in any form and in any capacity whatsoever, has administered the exercise or domiciliation on his or her premises of an activity consisting of implementing on others a practice that is not on the list established by ministerial order (fine of €18,000 to €90,000).
• Indicating that the non-conventional practice contributing to well-being (whether or not it is on the list set by ministerial decree) is of a nature to be able to replace, even partially, medical or paramedical care and, because of this indication, knowingly leading a person, even partially, to renounce or terminate this care (imprisonment of 6 months to 2 years and a fine of €9,000 to €18,000).
• Refraining from informing a person on whom this practice is to be implemented that the latter can only contribute to his or her well-being and cannot replace, even partially, medical or paramedical care and, as a result of this abstention, has knowingly led this person, even partially, to renounce or terminate this care (imprisonment of 6 months to 2 years and a fine of €9,000 to 18,000).