On The Legal Protection Of The Patient's Privacy In The Medical Educational Process And A Comment On China's Legislation About The Right Of Privacy

In the contemporary community , the personality is looked upon as the supreme value of a man, so it is with the personal interests. The respects on personal rights have been the basic principle and the target aiming for in the modern society. The protection on the rights of personality surely becomes one of fundamental mission of contemporary civil law . Putting the fundamental personality rights on the holy alter can be the symbol of the cultural development for the mankind. The right of privacy is as one kind of concrete personal rights , ought to be subjected to the legal protection , merely in this way to defend the peaceful lives , thereby to create a better circumstance for a man to play individual's talent, producing more values for the society. Yet in our country , since the views about the individual's private matters were developed insufficiently and the community benefits were ignored over a long period of time, as a result of these reasons, the individual's privacy is offended repeatedly in our lives, especially the sufferer's privacy legal protection problem arising from the medical treatment education process. The research on the patient's privacy should be established on the prerequisite that the nature of the relationship between the patient and the physician in the medical treatment educational process . It is the foundation to demarcate the liablities of the two parties concerned. The theory circles possess the different concepts on their relationship, some scholars think it is the civil legal relationship whereas others hold the view of administrative contract relationship. The writer thinks that it is one kindof particular civil legal relationship and such peculiarities express in four respects, which are the subject, the object, the content and the nature respectfully in the medical treatment service. As a particular civil legal relationship , the hospital is not allowed to dispose the patient's benefits willfully, that is to say, the patient enjoys the right of privacy. Apart from the ordinary properties of privacy right, this privacy still has the properties of iteself .The writer summarized the sufferer's privacy with five features . However, the legal protection on the patient's privacy is not absolute at all because the legal protection surely will take the social benefits in the medical treatment into account and balances them with the individual's privacy. Although two kinds of interests are unanimous in the ultimate sense, they will conflict forever because of different judgements on the value for two parties. To resolve the conflict between two kinds of interests , the writer differentiates this conflict as the fundamental and the non-fundamental conflict . The fundamental interests' conflict can not be harmonized unless the suffer's interests are compensated for the loss. The method to the non- fundamental interests' conflict is to give the patient the option for cooperation or not with the hospital in the medical treatment educational process. The medical educational process is the only way for a medical college student who is trained to become the future physician for it is decided by the nature of the medical treatment.The medical treatment has five special features which are hazard, experimental, harmness to human body, speciality of medical content and its method as well.Yet, the trainee's medical action is not the real medical treatment in a sense because it does not accord with the subject and the aim of the real medical treatment.The trainee's medical action without the patient's permission has infringed the patient's right of privacy.The writer thinks that the tortious action on the privacy expresses with five kinds of mode and the remedy method mainly focuses on the essence compensation, other means, such as removing the effects, recovering previous condition, apology and so on , are only supplemental methods. At last, the writer proposed the ideas on the legislation and the implemental means in the medical educational system for the protection of the privacy.