even prevent a disease, without ever giving it a chance to show its symptoms.
Health information is a strong currency. But it is also a liability.
It seems that the existing regulatory patterns and solutions for the protection of
privacy and personality rights of patients are no longer satisfactory. Traditional
division, where public law provisions lay the foundations for private law regulation
of patients’rights, fades away in the face of new challenges. There is no clear
distinction of competence: some protected values are subject to both private and
public law regulation, and there is no shortage of theoretical disputes about the
relation between public and private laws in this context.^1
It is generally accepted that the principle of protection of patients’privacy
includes the right to confidentiality and privacy of information regarding health
condition, family circumstances, course of treatment and prognosis, as well as all
other pertinent information. In order to be able to provide the best quality of
treatment, a doctor needs to obtain a lot of personal and sensitive information
from the patient. This in turn necessitates a complete trust of a patient in confiden-
tiality and protection of all the information, which he/she voluntarily communicates
to a physician of his/her choice.
But is this information truly susceptible to full protection? What about the rights
of other subjects, such as family members, insurance companies, or employers, who
are directly or indirectly affected by the patient’s health record? The question is,
under which conditions and circumstances should the information about a person’s
health condition be made available, or even must be revealed? A bulletproof
protection of personal health data and patient’s personality rights is a necessity,
but even the hardest armor is not impenetrable.
The right of personality denotes the totality of psycho-social state, i.e., deter-
mines one’s personality or identity, as well as the degree of that personality. In
objective terms, right of personality is defined as a set of norms of legal-ethical
order regulating the right of each legal subject to expression and development of
his/her own personality, in accordance with the degree of psycho-social develop-
ment. Subjective definition of the right of personality describes it as the right of a
particular legal subject to demand and achieve respect and development of his/her
own personality in accordance with the degree of the psycho-social development.^2
This request is directed to everyone, including the state.
General right of personality includes the right to know, and also the right not to
know one’s own genetic constitution, or “Everyone has an indefeasible right to
know one’s own genes; but he must also have an equal right not to know them.”^3
When we take the right of personality as our starting point for the protection of
patients’rights, we immediately stumble upon the notion of personalized and/or
individual medicine, which has become the buzzword in the recent years. Here,
everything we have postulated so far about the protection of the right of personality
(^1) Radolovic ́( 2006 ), p. 134; Dulcˇic ́and Bodiroga-Vukobrat ( 2008 ), p. 372.
(^2) Radolovic ́( 2006 ), p. 133.
(^3) Authors’translation from German, see Damm ( 2009 ), pp. 303 and 312.
32 N. Bodiroga-Vukobrat and H. Horak