In late April, the Supreme People’s Court, the Supreme People’s Procuratorate, and three central government agencies issued a document focusing on medical-related disputes and crimes committed within China’s medical system, along with four typical cases(典型案例). (I flagged the importance of the issue of medical disputes and crimes in a post late last year and have discussed typical cases here.) The document：
provides an recent example of the Court issuing policy documents;
shows how the Court implements Party/government policy relating to an important social issue;
illustrates the stresses in the Chinese medical system; and
highlights the inadequacies in medical legislation.
Why was this document issued?
The document was issued to deal with the increasing number of disputes and especially the violence in the Chinese medical system, that have been reported and explained by a variety of sources, including the Lancet, BloombergBusinessweek, and the Atlantic. The Chinese press (also academics outside of China and foreign press) has run many stories on “medical troublemakers” (医闹) –either disgruntled patients or their families or people especially hired to make trouble in a hospital to embarrass the hospital to making a large settlement. Why? As Wan Xin, a member of the Council of the Chinese Medical Law Association is quoted in a Xinhua press release as saying: “if you make little trouble, you get little money, make big trouble, you get big money, if you don’t make trouble, you don’t get money” (小闹小给钱， 大闹给大钱， 不闹不给钱).
Heilongjiang medical workers protestProtest outside one of Kunming’s main hospitals
The Court issues policy documents
The document, clunkily named “Opinion on strictly punishing according to law illegal and criminal acts relating to the medical system and upholding normal medical order” (关于依法惩处涉医违法犯罪维护正常医疗秩序的意见) (the Opinion), was issued by the following government agencies in addition to the Court:
Supreme People’s Procuratorate;
Ministry of Public Security
Ministry of Justice;
State Commission on Health and Family Planning.
The Opinion is what in Chinese is called a normative document（规范性文件). As I discussed in an earlier blogpost, the Court often issues them (and has done so for many years). They contain legal rules and policy statements and have different titles from judicial interpretations, in this case “Opinion”.
This document, for example, does not fit the legal definition of a judicial interpretation because it is issued with three State Council ministries/commissions, that is three agencies not authorized to issue judicial interpretations. The rationale for this practice is that officials of the administrative organ involved will comply only if their administrative organ jointly issues it with the Court and requires compliance of its subordinates, which in this matter includes the hospitals and other parts of the medical system, the police, and the people’s mediation committees. Normative documents also address issues, such as this one, where the law is unsettled and are also on the political agenda.
What the Opinion says and does not say
The substance of the Opinion is in two sections.
Section 2 describes six sets of offenses commonly committed, how they should be punished and what different parts of the justice system should do. Those offenses are:
Attacking or intentionally harming medical personnel and damaging property;
In medical institutions, setting up shrines, funeral wreaths and burning paper money or placing a corpse in public spaces;
Restricting the freedom of medical personnel (e.g. by preventing them from leaving their workplace)
Insulting medical workers,
Bringing weapons, explosives, radioactive materials etc. into medical institutions; and
Instigating others (including family members) to commit crimes against medical personnel.
Section 3 focuses on preventing medical related disputes and improving the way they are resolved. In particular, the health authorities are directed to improve the quality of medical services, their own monitoring of medical institutions, the compliance of medical institutions with medical legislation and medical codes, improve the protection of patient’s right to privacy, right to know, right to choose, and other rights, and push the establishment of better channels of communication with patients. The Opinion calls for a three track system for resolving medical disputes:
medical institutions should establish departments to receive and deal with complaints;
otherwise, medical disputes should be mediated through three party mediation;
if mediation does not work, the courts should deal with the cases in a timely manner.
The Opinion does not call for improving legal rules dealing with medical issues. (But see more about this below.)
The Court implementing Party/government’s policy
Disputes involving the medical system have increased in number and severity in the last few years. Violent crimes committed by patients and/or their families have increased, capturing national attention. In the Third Plenum Decision, the Central Committee called on the government to address the underlying issues:
Reform of the medical and health care system shall be deepened. The comprehensive reform of medical security, medical services, public health, drug supply and regulatory system shall be pushed forward in a coordinated manner…Efforts shall be made to improve the work system linking people’s mediation, administrative mediation and judicial mediation, and set up a comprehensive mechanism for mediating, handling and resolving conflicts and disputes.
Therefore improving medical security and medical dispute resolution have been high on the agenda of the Central Committee Political Legal Committee. The Opinion and related articles were published on the website of the Central Political Legal Committee and the Chairman of the Central Political Legal Committee has been involved in initiatives implementing the Opinion, particularly the mediation of medical disputes.
Protecting medical institutions from troublemakers
Inadequacies in medical legislation and dispute resolution
The Opinion does not address the inadequacies in existing medical malpractice legislation. (This has been the topic of several law review articles in English (also in medical academic literature) and many more articles in Chinese, including on Chinese social media. Although the Tort Liability Law contains basic principles, the law itself and its related judicial interpretation do not have sufficiently detailed rules on issues such as:
cause of action;
liability of different parties;
expert opinion;
determination of causation;
issues of proof; and
determination of damages.
Therefore, these cases drag on in the courts, and Wan Xin noted that a wait of two or three years to resolve these cases is not unusual. A Beijing judge, writing on social media, noted that medical malpractice cases in his district are “many, difficult, and volatile” (多，难， 激).
The lower courts have to cope with the increase in medical malpractice litigation, because patients are increasingly aware that litigation may result in a more favorable settlement than mediation. Some local courts have issued court rules to deal with some of these issues. Some of the outstanding questions are:
when will the Court issue a more detailed judicial interpretation on medical malpractice and how will it strike a balance between the rights of patients and the medical system?
Can a effective dispute resolution system be devised which can put the “medical troublemakers” out of business?
Do foreign medical/legal systems have expertise in medical malpractice that may be suitably transferred to the complex Chinese medical/legal system?
On April 8, 2013, the Supreme People’s Court announced that its Communist Party (Party) Committee was implementing an “educational movement to improve judicial work style” (judicial work style movement) in the second quarter of 2013. Zhou Qiang, the newly appointed president of the Supreme People’s Court, is also the head of its Party Committee.
This clunkily named announcement, written in densely packed Party jargon, is has critical implications for the Chinese court system and all those affected by it, domestic and foreign. Unpacking the announcement requires a Chinese political jargon decoder and a strong cup of coffee.
This posting will explain why the announcement is so important by highlighting:
The meaning of an “educational movement” and “judicial work style.”
The impetus for the movement.
The goals of the movement.
How will it be done?
What are its implications?
What is an “educational movement” and “judicial work style”?
Both phrases are frequently used in Chinese political jargon.
An “educational movement” refers to a political initiative with both educational and punitive aspects, focused on correcting certain ways of thinking while “work style” means the standards of conduct of officials.
Work style issues cover a broad range of activity, from deciding cases to womanizing, to luxurious banquets.
Impetus for the movement:
At the 18th Party Congress, the Communist Party leadership identified “judicial credibility” (司法公信力) as a critical area for improvement because of its political implications, particularly the profound loss of confidence in the ability of the Chinese judiciary to provide competent and fair justice. This was symbolized by the vote by 20% of National People’s Congress deputies against the Work Report of the Supreme People’s Court.
Goals of the movement:
As announced by the Court’s Party Committee, this education movement has the following goals:
Implement the ideal that justice is for the people, so that litigants will not feel they are despised;
Decide cases according to law, so that litigants will feel that justice has been done;
Improve judicial responsibility, so that judicial laziness, delays, indifference, arbitrariness, failure to hear both sides, and gross errors are avoided.
Improve judicial self-discipline and establish a clean judiciary, stop cases decided by money, connections, and sympathies.
Implementing the movement
The Court has called on the lower courts to implement the movement by the following:
Study relevant Party and Court documents;
Have court leadership take responsibility for implementing the required measures;
Implement appropriate internal systems to avoid conflicts of interests, institute training and monitoring programs;
Analyze issues in each local court, taking account of the views of various parts of society, identify the weak spots in the judicial system and evolve effective means to deal with them;
Use good and bad examples, including instances of judicial irresponsibility and other judicial action that harms judicial prestige;
Stop major abuses in the courts, such as taking gifts and money, using court vehicles for private business, using judicial posts to engage in business, and lavish eating and entertainment at public expense. Violators should be exposed, ordered to change, and if they do not, be dealt with.
What does this educational movement mean?
The implementation of this “educational movement” means that Party leadership recognizes that corruption and abuses in the court system are causing dissatisfaction and resentment among a substantial number of Chinese citizens, including among the political and business elite, and the leadership has called on the new Court leadership to do something about it. The Court leadership recognizes (more than any outside observer) that the Chinese judiciary often delivers a poor quality of justice, but that the issues are different in different parts of the country and even within the same city or province.
What may result from this “educational movement”?
Expect a spate of judicial scandals to hit the Chinese media and blogosphere.
Behind the scenes there may be a pushback from lower court judges, who feel they cannot make ends meet if they are honest.
Expect greater engagement between the Supreme People’s Court and the outside legal world, including greater dialogue between the courts and other parts of the legal profession in China, such as lawyers and academics in evolving reforms. President Zhou Qiang has led the way by holding a meeting with leading academics and lawyers in late April.
Because this educational movement does not deal with the structural issues that have created the conditions under which judicial abuses flourish, expect incremental institutional changes to be gradually rolled out in the next few years.
Supreme People's Court Monitor 
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