Protection of Patient Personality Rights in China

Abstract

Protection of patient personality rights is of great legal and practical significance in China. When doctors perform medical checks, diagnosis or treatment on patients and communicate with them, patient interests in physical wellbeing (life and health, bodily integrity and physical freedom), autonomy, privacy and dignity are at stake. The scientific and technological developments of medicine and biology furthermore create a wide variety of means of exercising patient personality rights but meanwhile have enabled new and more invasions of them. China is currently drafting its Civil Code. There go on contentious debates about a number of issues relating to personality rights among Chinese legal scholars and lawmakers, such as the necessity of having a separate Book on Personality Rights in the Civil Code, the scope and nature of personality rights, the adoption of the Germanic concept of 'the overarching general right of personality', the relationship between the law of personality rights and the law of tort and the legitimate restrictions on personality rights. Given little literature on patient personality rights, this article focuses on two pillars of patient personality rights, 'patient autonomy' and 'patient privacy', with an attempt to contribute to the current discourse for codifying personality rights from the perspective of patient personality rights. The article not only examines in detail the existing legal rules on patient autonomy and patient privacy, but also presents four emerging characteristics of patient personality rights under Chinese law: the active side of patient personality rights, the posthumous protection of patient personality rights, the commercial value of patient personality attributes and the legitimate restrictions on patient personality rights. The discussion in this article serves as an appropriate lens to better understand and frame personality rights in current China.