On Legal Protection Of Patients’ Right To Privacy

Right to privacy is one of the important rights of patients. With the expansion of theresearch areas of medical science, as well as the building of medical and health informationmanagement system, the legal protection of patients’ privacy is facing new challenges. Article62of the PRC Tort Law is a special provision for patient’s right to privacy, indicating Chinahas officially begun to build a comprehensive civil-law protection system for patient’s privacy.In this article, patients’ right to privacy is defined as the right to keep the secret parts of thebody and psychological secrets of patients from infringement without the consent of trueintention by the patients, as well as the right to self-control, manage, and avoid inappropriatedisclosure of medical records and health information in the whole process of medical services.The value of patients’ privacy is that it is a basic right of patients and is also important contentof the personality rights, and moreover, it is the basis of mutual trust between doctors andpatients. As a result of the four characteristics of patients’ right to privacy, e.g., particularity ofright subject, vulnerability to infringement, limitedness of transfer, due reduction of right,there exist conflicts between patients’ right to privacy, the right to know of medical personnel,the interests of specific third person, and public interests. While the PRC Tort Law is ofprogressive significance in terms of its provisions on patient’s privacy, it is pointed out in thisarticle that the problems in relevant legislation, including the ones of narrow scope ofpatients’ privacy protection, the unresolved conflicts between patients’ privacy right withspecific rights, and the defects of the civil liability institution.In view of the problems above, the article proposes suggestions for legislative improvementas below. First, expand the scope of the patients’ privacy protection to body privacy, healthinformation privacy and medical records in legislation like HIPAA in U.S. Second, legislationshould balance the interests of patients’privacy and the public interests, which means that thepatient’s right to know and the right to consent must enjoy priority under generalcircumstances, and when they conflict with the true public interests, the latter enjoy priority.Third, in terms of the issue of civil liabilities for violations of patients’ privacy, this articleagrees on the application of the principle of presumptive fault to the issue of burden of prooffor the subjective fault of the infringing party. Fourth, according to the PRC Tort Law, only serious moral damages can be compensated for, and in legal practice, the interpretation ofserious moral damages render the realm of this phrase too narrow, and thus the meaning ofwhich should be clarified.