"Hiding AIDS from your partner will be held accountable", cautioning that this is an infringement of the patient's privacy
When the right to know between partners conflicts with the privacy of the patient, the right to know needs to be respected and protected.
In the past two days, the topic of “new regulations in Yunnan: concealing AIDS from sexual partners will constitute a crime” has attracted attention.
According to the Beijing News, the Standing Committee of the Yunnan Provincial People's Congress recently passed the Yunnan Province AIDS Prevention and Control Regulations, which will be implemented on March 1, 2021.
The new version of the "Regulations" stipulates: "Infected persons and patients should inform their spouses or sexual partners of HIV infection in a timely manner; if they do not inform themselves, medical and health institutions have the right to inform them." Infected persons and patients who fail to be infected with HIV in time Facts tell their spouses, persons with sexual relations and other people who are at risk of exposure, "to bear civil liability according to law. If a crime is constituted, criminal liability shall be investigated according to law."
There are those who agree with this, and the “recommendation nationwide” “should have long been clear”; but there are also some people who have doubts that this move opens the law to authorize medical and health institutions to disclose their privacy to third parties without the consent of HIV-infected persons. Precedent, suspected of infringing on the privacy of patients, from the perspective of legislative relations, this conflicts with the upper law.
In this regard, it is obviously necessary to trace the source from the legal point of view, analyze each article, and resolve doubts.
Protect patients' right to privacy and their partners' right to know
In fact, there is no contradiction between protecting the privacy of patients and the right to know of their partners.
For example, my country’s “AIDS Prevention and Control Regulations” have long made it clear that relevant agencies “when conducting AIDS epidemiological investigations, the units and individuals under investigation should truthfully provide relevant information” and also stipulate that “without the consent of the person or his guardian, any unit or Individuals are not allowed to disclose the names, addresses, work units, portraits, medical history data and other information that may infer their specific identities of HIV-infected persons, AIDS patients and their families."
The former is for the needs of the public interest, for the country and society to actively respond to, prevent and control AIDS, and does not harm the personal interests of patients; while the latter emphasizes the protection of the private rights of patients. Therefore, all kinds of AIDS prevention and control propaganda are not allowed. Exposure, even indirectly leaking patient information.
In this regard, the new "Civil Code" also stipulates that "medical institutions and their medical staff shall keep the patient's privacy and personal information confidential. Anyone who leaks the patient's privacy and personal information, or discloses their medical records without the patient's consent, shall bear the infringement. Responsibility" is the same reason.
However, when the right to know (from the duty of loyalty) between husband and wife (or lovers) conflicts with the patient’s personal privacy rights, the right to know needs to be respected even more when one party may contract a serious infectious disease and damage his/her vital health interests. And protection.
Not only that, if someone conceals the fact of the illness and has sex with an unspecified object, it may also affect public interests and safety, which may even exceed the bottom line of the law.
This is also the basis for legislation to provide legal liability.
Legislation with local characteristics facilitates precise prevention and control of AIDS
Some people think that the content of the "Regulations" conflicts with the higher law, which is also a one-sided view.
my country’s "AIDS Prevention and Control Regulations" implemented on March 1, 2006 stipulate the obligations that HIV-infected and AIDS patients should perform, including "informing people who have a sexual relationship with them in time of the fact of infection or disease" and "adopting Necessary protective measures to prevent infection of others", "A person with HIV or AIDS who deliberately spreads AIDS shall bear civil liability for compensation according to law; if a crime is constituted, criminal responsibility shall be investigated according to law."
The Yunnan Province AIDS Prevention and Control Regulations, which came into effect on January 1, 2007, also have similar provisions, but the new version of the Regulations is detailed on this basis, enumerating the specific circumstances of accountability in detail, and is more targeted.
Of course, the investigation of criminal responsibility must also comply with the criminal law to constitute a crime.
Specifically, prostitution and whoring knowing that they have AIDS or HIV infection are punished severely for the crime of transmitting sexually transmitted diseases; those who cause others to be infected with HIV can be convicted and punished for the crime of intentionally hurting others, and help or introducing personnel can be punished as accomplices.
If it spreads maliciously by other means, causing others to be infected with HIV, it can also be convicted and punished for the crime of intentional harm.
It is worth noting that although qualifiers reflecting subjective mentality such as "intentional", "knowingly", and "malicious" are used here, except for the fact that they can prove that they do not know that they are HIV-infected or AIDS patients. It belongs to the category of accountability, including the behavior of spreading AIDS to others out of a laissez-faire and casual attitude.
For those who have not yet been diagnosed and do not know that they are HIV-infected, the "Regulations" do not provide for legal responsibility, and there is no issue of prosecuting criminal responsibility.
The annual World AIDS Day has just passed. Under the new crown pneumonia epidemic, the scourge that AIDS has brought to the world cannot be ignored.
Judging from the work report in Yunnan Province in recent years, sexual transmission is still the main route of transmission of the AIDS epidemic in Yunnan Province. Among the HIV-infected persons detected from January to October 2020, sexual transmission accounted for 97.5%, and transmission was through injection drug use. The number of cases continued to decline.
In this context, the refinement of the clause "Hiding AIDS from sexual partners requires accountability" is a characteristic legislation of the legislative department based on the actual situation of local AIDS prevention within the legal framework. The "targeted prescription" prescribed afterwards, the program is not "offside", and the effect is worth looking forward to.
□Jin Zegang (Professor of Law, Tongji University)