Law no. 2023-1268 of 27 December 2023, aimed at improving access to care through the territorial commitment of professionals, introduced the possibility for GHTs to acquire legal personality.
The regional hospital grouping (groupement hospitalier de territoire – “GHT”) was created by law no. 2016-41 of 26 January 2016. It was intended to be a, if not the, new form of cooperation between public health establishments.
Article L.6132-1 paragraph II of the Public Health Code specifies the purpose of GHTs as follows:
“The purpose of a regional hospital grouping is to enable health care institutions to implement a common, graduated patient care strategy, with the aim of ensuring equal access to safe, high-quality care. It ensures the rationalisation of management methods by pooling functions or transferring activities between establishments. In each grouping, the institutions involved draw up a shared medical project guaranteeing local services and access to referral and recourse services.”
Like lead in the wing of a potential “prelude to a general process of merging establishments within a territorial framework” (Dupont, M. & Bergoignan-Esper, C – Hospital Law – 2022 – Dalloz) the GHT, contrary to what its nature as a grouping might suggest, did not have legal personality.
This is what the former article L6132-1 of the Public Health Code stated in no uncertain terms: “The regional hospital grouping does not have legal personality”.
The GHT was therefore a simple contractual process based on a “support establishment” designated by the constituent agreement, which in a way “lent” its legal personality to the group as a whole and exercised at least:
- the management of patient files to ensure comprehensive care;
- the management of a regional medical information department;
- the purchasing function;
- the coordination of training for professionals;
- the managing of employment strategy.
The purpose of using an agreement-based approach was therefore to “allow flexibility” in the organisation of the GHT, as much as to make the operation of public health establishments more complex.
On 27 April 2023, as part of the explanatory memorandum for the introduction of the law aimed at improving access to care through the territorial commitment of professionals, it was stated that “certain GHTs have reached a level of cooperation that has led them to want to carry out certain functions at the level of the grouping and no longer at the level of individual establishments”, and it was therefore proposed to “create a right of option to give legal personality to the GHTs”.
This has now been done. Article L 6132-5-2 of the Public Health Code provides for two cases in which it is possible for a GHT to have legal personality.
The new article L.6132-1 of the Public Health Code specifies that “The regional hospital grouping may, at the joint request of all the directors of the participating establishments and subject to the concurring decisions of the supervisory boards and administrative boards, be given legal personality under the conditions set out in article L.6132-5-2”.
The decision to acquire legal personality can only be taken if all the governing bodies of each establishment in the grouping agree. It is therefore by no means compulsory.
Article L.6132-5-1 of the Public Health Code envisages two scenarios: either all the establishments involved in the grouping merge to form a single public establishment, or all the establishments form a health cooperation grouping (GCS) to take on the role of support establishment.
This 1° of the new article L.6132-5-2 of the Public Health Code may be seen as a reminder of the original petition of principle: a global process of territorial merger:
“A regional hospital grouping may have legal personality in the following cases:
1° When all the establishments involved in a regional hospital grouping merge under the conditions provided for in Article L.6141-7-1. In this case, the institution resulting from the merger is not required to be a party to the agreement mentioned in the first paragraph of I of Article L. 6132-1.”
This could also be seen as a form of simplification, corresponding to the creation of a regional hospital centre through a merger, to which would be attached the site establishments corresponding to the former members of the merged groupings.
However, the provision seems poorly drafted. It needs to be clarified whether the two entities, the GHT and the institution resulting from the merger, will continue to exist and, if so, what roles will be assigned to each of them.
Article L.6132-5-2 2° of the Public Health Code reads as follows:
“A regional hospital grouping may have legal personality in the following cases:
(…)
2° When all the establishments belonging to a regional hospital grouping, to the exclusion of any other member, form a health cooperation grouping mentioned in Article L. 6133-1 to carry out at least the functions mentioned in I of Article L. 6132-3. The health cooperation grouping also exercises, where appropriate, the competences mentioned in II and III of the same Article L. 6132-3 and in Article L. 6132-5-1. For the exercise of its powers, the health cooperation grouping replaces the support institution of the regional hospital grouping and the administrator of the health cooperation grouping exercises all the prerogatives granted to the director of the support institution.”
This paragraph also represents a development in that it gives the GHT legal personality. However, this does not bring the expected simplification and fluidity of operation. In this case, the GCS replaces the support establishment. Although this technique of creating operational groupings on the fringes of GHTs was already known in practice, it does not simplify matters in terms of governance. Not one but two legal entities are created, each with its own rules of governance and operation.
GHTs acquire legal personality: A new administrative “millefeuille”?
Law no. 2023-1268 of 27 December 2023, aimed at improving access to care through the territorial commitment of professionals, introduced the possibility for GHTs to acquire legal personality.
The regional hospital grouping (groupement hospitalier de territoire – “GHT”) was created by law no. 2016-41 of 26 January 2016. It was intended to be a, if not the, new form of cooperation between public health establishments.
Article L.6132-1 paragraph II of the Public Health Code specifies the purpose of GHTs as follows:
“The purpose of a regional hospital grouping is to enable health care institutions to implement a common, graduated patient care strategy, with the aim of ensuring equal access to safe, high-quality care. It ensures the rationalisation of management methods by pooling functions or transferring activities between establishments. In each grouping, the institutions involved draw up a shared medical project guaranteeing local services and access to referral and recourse services.”
Like lead in the wing of a potential “prelude to a general process of merging establishments within a territorial framework” (Dupont, M. & Bergoignan-Esper, C – Hospital Law – 2022 – Dalloz) the GHT, contrary to what its nature as a grouping might suggest, did not have legal personality.
This is what the former article L6132-1 of the Public Health Code stated in no uncertain terms: “The regional hospital grouping does not have legal personality”.
The GHT was therefore a simple contractual process based on a “support establishment” designated by the constituent agreement, which in a way “lent” its legal personality to the group as a whole and exercised at least:
The purpose of using an agreement-based approach was therefore to “allow flexibility” in the organisation of the GHT, as much as to make the operation of public health establishments more complex.
On 27 April 2023, as part of the explanatory memorandum for the introduction of the law aimed at improving access to care through the territorial commitment of professionals, it was stated that “certain GHTs have reached a level of cooperation that has led them to want to carry out certain functions at the level of the grouping and no longer at the level of individual establishments”, and it was therefore proposed to “create a right of option to give legal personality to the GHTs”.
This has now been done. Article L 6132-5-2 of the Public Health Code provides for two cases in which it is possible for a GHT to have legal personality.
The new article L.6132-1 of the Public Health Code specifies that “The regional hospital grouping may, at the joint request of all the directors of the participating establishments and subject to the concurring decisions of the supervisory boards and administrative boards, be given legal personality under the conditions set out in article L.6132-5-2”.
The decision to acquire legal personality can only be taken if all the governing bodies of each establishment in the grouping agree. It is therefore by no means compulsory.
Article L.6132-5-1 of the Public Health Code envisages two scenarios: either all the establishments involved in the grouping merge to form a single public establishment, or all the establishments form a health cooperation grouping (GCS) to take on the role of support establishment.
This 1° of the new article L.6132-5-2 of the Public Health Code may be seen as a reminder of the original petition of principle: a global process of territorial merger:
“A regional hospital grouping may have legal personality in the following cases:
1° When all the establishments involved in a regional hospital grouping merge under the conditions provided for in Article L.6141-7-1. In this case, the institution resulting from the merger is not required to be a party to the agreement mentioned in the first paragraph of I of Article L. 6132-1.”
This could also be seen as a form of simplification, corresponding to the creation of a regional hospital centre through a merger, to which would be attached the site establishments corresponding to the former members of the merged groupings.
However, the provision seems poorly drafted. It needs to be clarified whether the two entities, the GHT and the institution resulting from the merger, will continue to exist and, if so, what roles will be assigned to each of them.
Article L.6132-5-2 2° of the Public Health Code reads as follows:
“A regional hospital grouping may have legal personality in the following cases:
(…)
2° When all the establishments belonging to a regional hospital grouping, to the exclusion of any other member, form a health cooperation grouping mentioned in Article L. 6133-1 to carry out at least the functions mentioned in I of Article L. 6132-3. The health cooperation grouping also exercises, where appropriate, the competences mentioned in II and III of the same Article L. 6132-3 and in Article L. 6132-5-1. For the exercise of its powers, the health cooperation grouping replaces the support institution of the regional hospital grouping and the administrator of the health cooperation grouping exercises all the prerogatives granted to the director of the support institution.”
This paragraph also represents a development in that it gives the GHT legal personality. However, this does not bring the expected simplification and fluidity of operation. In this case, the GCS replaces the support establishment. Although this technique of creating operational groupings on the fringes of GHTs was already known in practice, it does not simplify matters in terms of governance. Not one but two legal entities are created, each with its own rules of governance and operation.