The French have only one date in mind, repeated many times Monday evening during the speech of the President of the Republic: May 11, 2020. The first act of a gradual deconfinement, which will take time and will not concern, whatever happens, all French people. Emmanuel Macron made no secret of it.
"For their protection, we will ask the most vulnerable, the elderly, those with severe disabilities, people with chronic diseases, to stay, even after May 11, confined, nuanced the President of the Republic. At least at first […], you will have to try to stick to it to protect yourself, for your interest. "
This statement is not really surprising. During his hearing by the fact-finding mission to the National Assembly on April 1, Édouard Philippe was responsible for preparing the ground. "It is likely that we are not moving towards a general, absolute deconfinement and for everyone on a given date", he explained, opening the way for a deconfinement differentiated according to two potential criteria: by regions and by "classes of age ”. A statement which, as it stands, raises many questions.
"At this point, this is a recommendation"
This is the question that everyone is asking after the announcements of Emmanuel Macron and who, to date: who should remain confined on May 11? In fact, the government itself is unable to provide specific information on Tuesday. The modalities of deconfinement - and therefore of the possible maintenance of confinement for certain populations - will be specified in the next fifteen days.
"At this stage, this is a recommendation from the Head of State vis-à-vis the elderly and frail, tempers with the Parisian Sibeth N'Diaye, spokesperson for the executive. The government has not acted on the implementation of differentiated deconfinement. Consultations will take place, in particular with epidemiologists. It was a concern for the most fragile people that was expressed by the head of state. There is no question, as it stands, of considering maintaining confinement under the constraint of the law.
An overexposed population
A major argument nevertheless argues for this differentiation by age: statistics. Since April 1, Santé Publique France has been communicating daily on the evolution of the number of people hospitalized, admitted to intensive care and deceased, by age group and by region. If we only have a fortnight's follow-up, the figures show that the majority of serious cases (a little more than 60% of resuscitation) concern in almost all metropolitan territories people over the age of 60. The trend is even stronger if we only look at deaths. Overseas territories may be an exception, in particular due to the lower number of cases recorded.
The data are just as telling when it comes to frail people with comorbidities (Editor's note: where other illnesses or health problems are added to Covid-19). According to data collected by Santé publique France between March 1 and 30, on a sample of 1,931 deaths linked to covid-19, 62.3% of the victims had co-morbidities. All the same, this non-negligible share of 18% of deaths in patients under the age of 60, without comorbidity, still calls for great caution.
If the government were indeed to implement a gradual deconfinement starting on May 11, could it force the elderly and frail to remain confined? Professor Yves Buisson, member of the National Academy of Medicine, understands the logic but calls for caution. “We know that the elderly develop more co-morbidities and are therefore more at risk. Stratifying deconfinement according to risks makes sense, but that does not make a strategy, ”he warns.
"It's up to doctors to tell their patients if they can get out of the house"
The specialist believes that this progressive deconfinement cannot be done under the constraint of the law. For him, the government would be well advised to call for individual responsibility. "People at risk are identified medically," he explains. Patients with comorbidities, who suffer from diabetes, hypertension or other, are followed by doctors. It is up to them to indicate to their patients if they can leave their home or if they must remain in confinement. "
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Will the government dare to reduce the containment control of a population deemed to be at risk? After two months of confinement, such a decision has all the attributes of a political puzzle. It would at least allow the government to avoid running into a potential legal headache, as it could be if it attempted to impose prolonged confinement by law for the elderly and frail.
“I have the feeling that a deconfinement by region would be perfectly justifiable, explains the constitutionalist Didier Maus. Some territories are much more affected than others, we would see an objective criterion applied here. I am much more restrained when it comes to the age criterion. "
"Is the age criterion really relevant?"
For him, the government would indeed be required to include in the law concepts that cannot be defined in law. "What is an elderly person?" What is a fragile person? It doesn't exist in law, he explains. Establishing a collective rule would also guarantee that all the complex cases that the legislator had not thought of arise ”.
The constitutional lawyer evokes for example the case of a single parent suffering from co-morbidities and who would be required to bring his children to school and to leave his home frequently. “I also have friends over 70 in perfect health and others under 60 who have concerns… Is the age criterion really relevant? Asks the specialist, suggesting a significant risk of litigation.
Like Professor Buisson, Didier Maus believes that the best answer is more medical than legal. "I do not see how the public authority can decide who can or cannot remain confined ... A deconfinement based on medical advice could on the other hand constitute an objective criterion justifying a differentiated deconfinement. "A hypothesis which would undoubtedly require a multiplication of tests, which France is currently unable to provide.