艾滋病医疗中告知与检测问题的法律介入研究

Research on the Notification and Detection of AIDS Medical Treatment

虽然《艾滋病防治条例》中明确规定了艾滋病感染者在就诊时的告知义务,但在田野调查中不难发现,已经知晓自身感染事实的感染者除非在不得已的情况下往往抵触这种义务的履行。这种存在于隐私权与知晓权之间的冲突在实践中逐渐演变成一种恶性循环,使医患矛盾不断扩大,而在具体的司法案例当中对此问题的相关裁判出入极大,并没有形成统一有指导性意义的模式可供遵循。结合具体司法案例及相关田野调查可以发现,这一系列问题背后的根源乃是以风险防范为导向的艾滋病防治立法意图在实践过程中无形地发生了某种异化,作为法律关系主体的艾滋病感染者在新闻舆论传播等因素下慢慢被“物化”成艾滋病这一标签本身,而一旦艾滋病感染者能够通过非制度性途径摆脱法律义务而实现其根本性的权利诉求,其实现权利的能力就会被缓慢消解。

Although the“AIDS Prevention and Treatment”clearly stipulates the duty of informing when HIV-infected people Ariving for Treatment,it is not difficult to find out that HIV-infected person who has known the facts of his own infection often contravenes this obligation unless he has to do so in field surveys.This kind of right conflict between the right to privacy and the right to know has gradually evolved into a vicious circle in practice,expanding the contradiction between doctors and patients which should be based on trust.However there are so many differences in the relevant judgments on this issue and no unified and instructive model has been formed.Combining with specific judicial cases and related field investigations,we could find the root cause of these problems is that the legislative intent of AIDS prevention and control based on risk prevention has undergone some kind of alienation in the process of practice invisibly.As HIV-infected people which should be the main body of legal relationship are slowly“material”in the public opinion dissemination and other factors,the ability of realizing their legal rights is gradually being eliminated once they could realize their fundamental demands through non-institutional means.