Suppression des fonctions du chef de service par suite de la disparition du service, pas de consultation préalable

Il arrive parfois aux établissements de se réorganiser. Les réorganisations entraînent quelquefois des victimes collatérales. Parmi ces dernières a compté un chef de service qui s’est insurgé contre le sort qui lui était réservé.

C’est ce dont il ressort de la décision du conseil d’État en date du 30 mars 2009 ((CE, 30 mars 2009, Bressot, n°292482.)). En effet, par délibération du 19 décembre 2002, le conseil d’administration du centre hospitalier spécialisé de Vals-les-Bains a décidé une nouvelle organisation du centre hospitalier à compter du 1er mars 2003, comptant notamment la suppression du service de diabétologie-nutrition de quarante lits placé sous la responsabilité de M. BRESSOT, praticien hospitalier (PH) à temps partiel et chef dudit service.

La suppression de ce service avait été préparée avec le directeur d’établissement par le président de la commission médicale d’établissement (CME) et avait fait l’objet d’une consultation du comité technique d’établissement (CTE), nonobstant l’absence du procès-verbal de la délibération par laquelle le CTE avait émis son avis.

Le praticien insatisfait a fait valoir devant le tribunal administratif compétent que l’arrêté du 1er décembre 2003 par lequel le directeur de l’ARH a mis fin avant leur terme à ses fonctions de chef de service :

  • n’avait pas été précédé par des consultations qui auraient été exigées par les dispositions de l’article L. 6146-3 du code de la santé publique ;
  • aurait été entaché d’incompétence pour n’avoir pas été pris par le ministre de la Santé.

Le conseil d’État a jugé ces moyens inopérants dès lors que l’autorité administrative était tenue de mettre fin aux fonctions de chef de service du requérant en raison de la suppression du service qui avait été placé sous sa responsabilité. Ces moyens doivent être écartés pour ce motif, qui n’implique aucune appréciation de fait et doit être substitué d’office à celui qui a été retenu dans le jugement du tribunal administratif (TA), dont il justifie légalement, sur ce point, le dispositif.

Traduisez : le TA a eu raison, mais pas pour la bonne raison que je lui substitue.

Des questions se posent néanmoins au regard de la position de la haute juridiction : la solution aurait-elle été exactement identique si le PH avait été à temps plein ? Le problème se serait-il posé de la même façon et avec la même acuité avec la présence récente du centre national de gestion des praticiens hospitaliers et des personnels de direction de la fonction publique hospitalière ?

Omar YAHIA

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