TYGlobe

In recent years, the scale of elderly care institutions in China has expanded rapidly, and disputes over services provided by elderly care institutions have also shown a year-on-year growth trend. This is attributable to a variety of factors, including insufficient service experience of elderly care institutions, low competence of nursing staff, the lack of reasonable understanding of elderly care services among the elderly and their family members, as well as the fact that China's elderly care service industry is in a period of rapid development with relevant norms and systems not yet sound. In particular, many operators of newly opened elderly care institutions lack awareness of proactive prevention in handling elderly care service disputes, which leads to their excessive hesitation and failure to make effective decisions in a timely manner when disputes arise. The overall philosophy of the Opinions is to promote the law-based, standardized and orderly handling of disputes over elderly care institution services, and safeguard the lawful rights and interests of both the elderly and elderly care institutions.

From the perspective of legislative hierarchy, the *Guiding Opinions* are jointly issued by six departments, namely the Ministry of Civil Affairs, the Central Political and Legal Affairs Commission of the Communist Party of China, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice. Its legal validity is lower than that of departmental rules, which can be deemed as fairly low. However, in light of the common practice of the elderly care service industry, the *Guiding Opinions* still enjoy very extensive enforceability within the industry. From the perspective of legislative content, the *Guiding Opinions* propose to adhere to and develop the "Fengqiao Experience" to resolve service disputes, which bears distinct principled and programmatic features. The so-called "Fengqiao Experience" refers to a model of the Party's mass line in the new era featuring "the Party and government taking actions, relying on the masses, preventing disputes, resolving contradictions, maintaining stability and promoting development". Taking the "Fengqiao Experience" as the guiding basis, the *Guiding Opinions* put forward guidance from three aspects, with the core purpose of advocating dispute resolution through mediation. Combined with practical experience, the author has summarized and refined the content of the *Guiding Opinions*, hoping to provide some support for elderly care service institutions in their operation.

I. Strengthen the Internal Management of Elderly Care Service Institutions

(I) Establishment of Internal Management Systems for Old-age Care Institutions

The Opinion emphasizes eliminating service security risks at the source and preventing the occurrence of disputes to the maximum extent. It puts forward guiding opinions mainly from four aspects: establishing and improving the security management system, comprehensively implementing the service agreement system, establishing internal management information archives, and formulating emergency response plans for unexpected incidents.

1. Safety Management System The safety management system covers the establishment of personnel-related systems and the improvement of hardware facilities. For elderly care institutions, the main subject of safety liability is service practitioners, while the elderly receiving services are the core of the implementation of the safety management system. On the one hand, institutions shall establish a fixed education and training system to strengthen safety education, rule of law education, humanistic education and mental health education and training for practitioners. On the other hand, institutions shall formalize the admission assessment work, and take it as an important procedure for determining the nursing grade of the elderly at the time of admission. In terms of hardware facilities, installation of video surveillance in public places has been widely popularized among elderly care institutions. However, for accidents occurring in the living quarters of the elderly, due to the absence of indoor video surveillance, it is extremely difficult for elderly care institutions to adduce evidence proving that they have fulfilled their duty of safety care to mitigate or exempt their liability when disputes arise. The Opinions specifically provide that "video surveillance may be installed in the living quarters of the elderly upon written consent of the elderly or their agents". Although this provision seems to provide corresponding support for institutions, the Opinions also mention the protection of the right to privacy of the elderly. Therefore, even if video surveillance is installed indoors after consent is obtained, institutions shall establish a strict internal confidentiality system, properly keep and lawfully use the video surveillance materials.

2. Service Agreement System Elderly care service agreements are reusable agreements. Where any liability-related clause therein fails to alert the elderly or their agents of relevant risks during the conclusion of the agreement, and unreasonably exempts or mitigates the service provider's own liability, aggravates the liability of the elderly, restricts the principal rights of the elderly, or excludes the principal rights of the elderly, such clause shall be deemed as a standard term and shall not be recognized as part of the contract. Therefore, when formulating service agreements or during the conclusion of agreements, elderly care institutions may alert the elderly or their agents of potential accidental risks during service provision and corresponding disposal measures by separately issuing a risk notification letter or placing conspicuous marks on the agreement. If the elderly or their agents request an explanation of relevant clauses, such explanation shall be provided. Where necessary, audio and video recordings of the entire explanation process shall be made.

3. Archives Management System The archives specified in the Opinions are categorized into internal management information archives and archives of the elderly. The original materials involved in the internal management information archives are not only relevant to the internal management of the institutions, but also play a critical evidential role in the handling of service disputes. The archives of the elderly involve not only service-related information, but also the privacy of the elderly. For the purpose of personal information protection, elderly care institutions shall obtain consent from the elderly or their agents when creating archives, and shall properly keep the relevant information after the archives are established, so as to avoid incurring liabilities caused by improper information disclosure.

4. Emergency Response Plan System for Public Emergencies The COVID-19 outbreak this year has put the emergency response capacity of elderly care institutions to a severe test. The purpose of the *Opinions* in guiding elderly care institutions to formulate emergency response plans for public emergencies is to prevent the escalation of harm after the occurrence of such emergencies. Where conditions permit, elderly care institutions may develop corresponding plans based on different categories of public emergencies (natural disasters, accidental disasters, public health events, and social security incidents), and equip themselves with necessary devices and equipment.

(II) Standardize the Procedures for Handling Service Disputes

When a service dispute arises, an elderly care institution shall, on the premise of prioritizing the protection of the rights and interests of the elderly, pay attention to the lawful collection and preservation of evidence, and guide the elderly, their agents or family members to resolve the dispute through legal procedures.

II. Uphold and develop the "Fengqiao Experience", and advocate resolving service disputes through mediation.

1. The proposal of the concept of "residents' committee of senior care institutions" is innovative but low in feasibility. The Guiding Opinions advocate that parties to a dispute shall first resolve the dispute through consultation. Where consultation fails, they may choose to invite the residents' committee of senior care institutions to participate in mediation, or apply for mediation to the local People's Mediation Committee. The "residents' committee of senior care institutions" is composed of representatives of admitted elderly people and their agents, and undertakes the function of participating in dispute mediation. Similar to the owners' committee, it is established with the original intention of enabling disputes to be resolved within the senior care institution. However, at present, in the absence of specific operational guidelines or clear competent authorities, a series of issues will become obstacles to the establishment of such committees, including: What are the rules for the establishment of the residents' committee of senior care institutions? What is the type or scope of disputes that the committee is eligible to participate in mediating? What are the rules for the committee to participate in mediation? Even if the residents' committee of senior care institutions is established, for disputes mediated by it, the settlement agreement reached by the parties, although valid, does not have the effect of compulsory enforcement. Where a dispute arises over the performance of the aforesaid settlement agreement, the parties still need to file a lawsuit with the People's Court.

2. It is advocated that an application for mediation be filed with the People's Mediation Committee at the place where the dispute arises or the domicile of the parties, which can prevent the escalation of conflicts. Furthermore, where a mediation agreement reached through mediation by a People's Mediation Committee is not performed as agreed, the relevant party may apply to the People's Court for judicial confirmation in accordance with the law, and may further apply for compulsory enforcement.

3. Where no settlement can be reached within an elderly care institution, or no mediation agreement can be concluded even after mediation by the People's Mediation Committee, either party to the dispute may file a lawsuit with the People's Court, which adheres to the principle of "giving priority to mediation and combining mediation with judgment". Of the disputes involving elderly care service institutions accepted by Shanghai courts in recent years, contract disputes and disputes over the right to life and health account for the largest proportion, among which disputes over the right to life and health are closely related to the management of elderly care service institutions. Once a personal injury accident occurs to an elderly resident, a dispute may arise therefrom. Where mediation conducted by multiple parties fails, the dispute will eventually be resolved through litigation at the People's Court. When hearing such disputes, the People's Court generally follows the adjudication rules as follows: Confirm the existence of damage facts → Confirm whether the damage facts occurred within the institution → Confirm whether the institution or its employees are at fault → Determine the final liability proportion based on the degree of fault. In the process of the People's Court handling the dispute, the elderly care institution shall submit the evidence preserved and collected in accordance with its internal management system (such as nursing logs, surveillance video materials, witness testimony, etc.) to the People's Court in a timely manner, so as to assist the People's Court in ascertaining the facts and clarifying the liabilities.

III. All relevant departments shall make concerted efforts to foster a social atmosphere where elderly care service institutions are protected in the process of resolving service disputes.

1. Crack down on illegal and criminal acts in accordance with the law. On the one hand, administrative penalties shall be imposed on acts that infringe on the rights and interests of the elderly in elderly care institutions; on the other hand, clear guidance is provided for the governance of disturbances similar to the "medical disturbance" phenomenon arising from service disputes of elderly care institutions. The Opinions stipulate that in the event of the aforesaid circumstances, elderly care institutions shall promptly report to the local public security organ, and the public security organ shall promptly dispatch police officers upon receiving the report. The two instances of "shall" herein reflect the "protection" for elderly care institutions intended by the six departments when formulating the Opinions, which can effectively resolve the awkward situation where the normal service order of elderly care institutions is disrupted by family members of the elderly when service disputes occur.

2. Establish a working pattern of inter-departmental collaboration. The Opinions require that when handling disputes over services of elderly care institutions in accordance with the law, all local authorities and departments shall both safeguard the legitimate rights and interests of the elderly and strengthen supervision over the elderly care industry, and take the initiative to exchange information with people's courts, people's procuratorates, public security organs and judicial administrative departments during dispute handling. This is consistent in spirit with the requirement stipulated in the *Measures for the Administration of the List of Subjects Subject to Joint Punishment for Dishonesty in the Elderly Care Service Market (for Trial Implementation)* issued by the Ministry of Civil Affairs on October 25, 2019, which requires local civil affairs departments to obtain relevant information from various channels when carrying out administrative supervision over elderly care service institutions. On the one hand, such information will ultimately be reflected in the credit reporting and rating of elderly care institutions; on the other hand, the collection of such information will also urge elderly care institutions to establish and improve their internal management systems, so as to reduce the occurrence of disputes or avoid the intensification of conflicts when disputes arise.

3. Fostering a social atmosphere where service disputes are resolved in accordance with the law. In the process of occurrence and settlement of service disputes, senior care institutions are often placed in a very passive position, as the elderly or their family members are unwilling to resolve disputes through legal channels and attempt to achieve their goals by such means as malicious hype in the media or seriously false reports. The Opinions stipulate that senior care institutions may resolve disputes through litigation.

Overall, the Guiding Opinion, adhering to the principle of prioritizing prevention and aiming at resolving disputes through diversified approaches, provides a programmatic basis for elderly care institutions to handle service-related disputes. We have also observed that a series of recently promulgated safety specifications and service standards for elderly care institutions have all set forth requirements for the prevention, reporting and handling mechanisms for accidents occurring within such institutions. The 2020 Implementation Guidelines for the National Standard for Classification and Assessment of Elderly Care Institutions (for Trial Implementation) has also included the establishment of a service dispute mediation system as one of the assessment indicators. Against this backdrop, it is necessary for elderly care institutions to establish a comprehensive service dispute prevention and handling system to respond to various emergencies that may arise in the course of operation.