Disciplinary Proceedings: Can Healthcare Professionals Remain Silent?
“Rather than being a ‘right of silence,’ the right, or better the privilege, is against being compelled to speak.”
This observation by American judge Henry Friendly takes on particular significance in disciplinary proceedings. Recognised by the French Conseil d’État (Council of State) for the benefit of healthcare professionals, the right to remain silent constitutes an essential safeguard, although its exercise must form part of a carefully considered defence strategy.
The right to remain silent derives from Article 9 of the French Declaration of the Rights of Man and of the Citizen of 1789, which establishes the principle that no one may be compelled to incriminate themselves.
For many years, this principle was confined to criminal proceedings. However, case law has progressively extended its application to any sanction having a punitive character.
Disciplinary proceedings may result in sanctions of varying severity, including warnings, reprimands, prohibitions on practising or even removal from the professional register.
Given the seriousness of these potential consequences, the Conseil d’État has held that healthcare professionals must benefit from procedural safeguards in disciplinary matters.
I. A Right Developed Through Case Law
This development began with Decision No. 2023-1074 QPC of 8 December 2023 of the French Constitutional Council (Conseil constitutionnel), which recognised the right to remain silent for individuals subject to proceedings that could result in a sanction having a punitive character.
Following the Constitutional Council’s approach, the Conseil d’État, in two decisions delivered by its Judicial Section on 19 December 2024 (Nos. 490952 and 490157), clarified the scope of the right to remain silent for individuals appearing before professional disciplinary bodies.
From a procedural perspective, the Conseil d’État held that a person cannot be questioned about alleged professional misconduct without first being informed of their right to remain silent.
Consequently, the competent authority is under an obligation to inform the individual of this right.
Failure to comply with this obligation may be challenged before a court by an individual who has been subject to disciplinary proceedings without having been informed beforehand of their right to remain silent.
Healthcare professionals benefit from this obligation to provide information.
The Conseil d’État expressly held that “a doctor facing proceedings before the National Disciplinary Chamber of the French Medical Council must be informed of their right to remain silent” (Conseil d’État, 22 May 2025, No. 494096).
See also:
Conseil d’État, 6 August 2025, No. 499402;
Conseil d’État, 26 November 2025, No. 498680;
Conseil d’État, 30 December 2025, No. 499090.
This principle also applies to nurses (Conseil d’État, 6 June 2025, No. 468828) and dental surgeons (Conseil d’État, 4 June 2026, No. 502198).
II. What Should Healthcare Professionals Do in Practice?
During disciplinary proceedings, a healthcare professional may be required to speak on several occasions:
When asked to provide explanations by their professional regulatory body;
During a hearing or interview;
During the disciplinary hearing itself.
Where a practitioner has explanations capable of challenging the allegations made against them, it may be appropriate to answer questions in order to clarify the facts, provide context and resolve tensions that may sometimes arise from misunderstandings.
However, a defence strategy based exclusively on remaining silent is unlikely to succeed. On the contrary, it may result in a decision being made solely on the basis of the opposing party’s arguments.
The right to remain silent should therefore not be understood as an invitation to remain silent systematically.
Rather, it is a procedural safeguard allowing practitioners not to contribute to their own self-incrimination.
The decision whether or not to answer questions must be assessed in light of the circumstances of each case, the nature of the allegations and any previous statements made by the practitioner.
In practice, exercising the right to remain silent may be useful in order to allow sufficient time to prepare a defence, including:
Examining the case file;
Gathering and presenting evidence to challenge the allegations;
Seeking assistance from a lawyer.
The right to remain silent is therefore an important safeguard for healthcare professionals facing disciplinary proceedings, but its exercise must be considered as part of an appropriate defence strategy.
