The new Tort Liability Law and the journey towards informed consent in China

Chinese informed consent law is in a period of fundamental transition. The recently enacted Tort Liability Law offers a new way of thinking about Chinese informed consent law in the therapeutic setting. It includes distinctive provisions relevant to informed consent, thereby creating a generous duty to inform, including a duty to inform about alternative treatment options. However, the rule as presently cast suffers from a lack of detail and clarity, fails to clearly identify the distinctiveness of the duty to disclose, and may be criticised for being all-embracing and overambitious. Nevertheless, one has reason to be optimistic about the future of Chinese informed consent law. This article offers a detailed tour through the new Tort Liability Law in the specific context of disclosure to patients and sets out certain suggestions for future development. These suggestions include that Chinese law should clearly distinguish the task of information disclosure from diagnosis and treatment, should introduce the ‘materiality’ test of information disclosure, and should also acknowledge the role of professional regulation in honouring and promoting the doctrine of informed consent. In the course of this examination, the author draws comparisons with the laws of Japan and also Commonwealth countries, including Asian common law jurisdictions, such as Singapore and Malaysia.