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入住香港安老院：不可忽视的法律与合约考量

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2024年4月15日，消费者委员会发布了一份 重要報告，深入检视香港安老院的标准、费用及透明度。报告中揭示了多项问题，例如隐藏费用、不一致的护理标准以及含糊的合约条款。同时，报告也突显出一个更深層次的问题：含糊的合约条款及许多家庭选择安老院所涉及的法律和财务复杂性缺乏认知。

入住养老院，无论是政府补贴的还是私人的，都是一个重大决定，不仅涉及评估设施、人员配备和服务是否足够。合约的条款规范了从费用到护理服务以及作为住户的权利等一切事项。这一点在私人安老院尤为重要，因为家庭通常需要承担更多大的财务责任，所以必须更加谨慎地审视所签署的协议内容。

在本文中，我们将探讨在香港选择安老院时每个人都应该注意的主要法律和合同考量。

牌照与认证照

无论你考虑的是私人还是资助的安老院，第一步是确保该设施拥有合法牌照。在香港，所有安老院（RCHEs）均受《安老院条例》（第459章）规管，该条例为住宿、员工配置和护理服务设立了最低标准。

除了牌照外，还应考虑该安老院是否获得像香港认证服务（HKAS）等认可机构的认证。认证意味着该机构遵守更严格的标准，这可能会转化为更好的护理服务和更安全的环境。正如消费者委员会指出的，获得认证的安老院更有可能投资于持续改进。

费用：透明度至关重要

报告显示，私人安老院的费用差异巨大，从每月6,000港元到超过80,000港元不等。然而，这些数字往往不包括消耗品、医疗护理，甚至基本的空调费用等额外费用。因此，仔细检查合同并确保以下事项清楚明确是至关重要的：

  • 基本费用：清楚了解每月收费包含哪些项目
  • 额外收费：常见的额外费用包括医疗陪诊、特殊膳食需求或失禁用品如尿片。这些费用可能迅速累积，因此务必要求提供详细清单
  • 退款和押金政策：如果住户住院或选择提前离开安老院，未使用的费用是否会退还？许多合同对于退款有严格的规定，或者根本没有相关条款，因此这一点需要特别注意。
  • 费用调整：查看是否有允许调整费用的条款。虽然生活成本上涨是常见的，但合同应明确规定通知期限以及允许的涨幅百分比。

在私人安老院中，家庭需承担全部财务负担，因此费用透明度尤为重要。

护理服务：安老院能否满足不断变化的需求？

消费者委员会的一大关注点是安老院在应对住户健康状况变化时的灵活性有限。无论安老院提供的是基本护理、护理服务还是专门的失智护理，合同都应清楚列明可提供的服务以及如果护理需求随时间发生变化时的应对方式。

例如：

  • 该设施是否提供24小时全天候护理服务？
  • 如果住户出现行动问题或需要临终护理，会怎样处理？
  • 如果需要，安老院是否会协助安排转介至更高护理级别的设施？

私人安老院可能提供更具个性化的护理服务套餐，但这些通常需要支付相当高的费用。事先了解安老院是否能持续满足你亲人的需求，或者是否可能需要将其转介至其他设施，这是非常重要的。

终止政策

终止条款在不同的安老院之间差异很大，消费者委员会的调查结果显示，安老院在处理合同终止方面缺乏一致性。务必注意合同中有关以下方面的具体条款：

  • 自愿终止：如果你决定离开安老院，需要提前多长时间通知？退款政策是怎样的？
  • 安老院主动终止：在什么情况下安老院可以解除住户合同（例如，无法支付费用或健康问题无法处理）？
  • 驱逐程序：这些程序应与消费者保护法相符，以防止不公平或突然的驱逐。

私人安老院，可能会有更严格的条款偏有利于安老院，因此仔细审查这些条款至关重要。

争议解决：你的选择是什么？

许多合同中包含要求争议通过仲裁或调解而非法院诉讼解决的条款。虽然这些程序可能较为快速，比较昂贵，也可能会限制你采取法律行动的权利。确保合同中规定了清晰、公正和透明的解决程序，并了解像香港消费者委员会等资源，该机构可以调解争议并提供建议。

住戶權利：應注意的法律保護

根据《安老院（长者）条例》，住户有权享有基本权利，如隐私、尊严以及参与护理决策。私人安老院经常以提供“高端”服务为卖点，但这些基本权利不应该受到妥协。在审查合同时，确保它反映了对以下承诺的支持：

  • 医疗服务：现场医疗人员和紧急应对系统的可用性。
  • 安全与卫生：感染控制、清洁和定期健康检查的政策。

消费者委员会还鼓励家庭询问员工与住户的比例，因为较低的比例通常会带来更好的护理服务。

数据隐私与法律监护

消费者委员会强调，保护住户的个人和医疗信息至关重要，特别是在可能涉及外部服务的私人设施中。确保合同符合《个人资料（隐私）条例》（第486章），并包含有关资料共享或使用的明确指引。

如果住户有法律监护人或授权书，请确认安老院承认这些安排并尊重指定代表的决策权。

结论：保持知情，保障权益

消费者委员会的报告强烈提醒人们，在香港入住安老院是一个具有重大法律和财务影响的决定。

如果您想了解更多关于这方面的保障，请联络我们的合伙人，赵君宜律师，（+852 2186 1885 / +852 9169 4356）。

免责声明: 本文仅供参考。本文中的任何内容均不得诠释为香港法律建议或向任何人提供的任何与此相关的法律建议。对于任何人因本文所含的内容而造成的任何损失和/或损害，高李严律师行不承担任何责任。

OLN “Legal Eagles” Take on the Peak Race 2025: Running for Freedom

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OLN is proud to announce that our team, the “Legal Eagles”, will participate in the Peak Race 2025 in Hong Kong! Set for Saturday, 22 March 2025, this inspiring race, organised by 24 Hour Race, aims to raise awareness and funds to combat human trafficking and modern-day slavery, while empowering youth and supporting at-risk children in Thailand.

OLN team is lacing up not just to race but to actively support the cause through fundraising efforts. This year, we will directly support The Freedom Story , an organisation dedicated to protecting vulnerable children in Thailand from trafficking and exploitation.

With your generous support, we can help fund initiatives that will create long-term, life-changing impact:

1. Educational scholarships

Keeping vulnerable children in school by covering tuition and school supplies.

2. Financial management training

Empowering families with the skills to manage resources and build financial stability.

3. Youth leadership camps

Equipping young leaders to educate their peers through anti-trafficking outreach programs.

4. Mentorship programs

Providing emotional support and guidance to children facing crisis situations.

Gordon Oldham, our Senior Partner and an avid ultramarathon runner, shared his enthusiasm: “I’m thrilled that OLN is supporting such a great initiative. As both a runner and organiser of numerous Hong Kong trail races, I’ve seen first-hand the immense dedication and effort that goes into making a race happen – especially for a meaningful cause. I’m proud to be part of it this year.”

How You Can Help

We invite you to stand with us in the fight against human trafficking. You can contribute by:

  1. Donating – Every contribution is tax-deductible and, big or small, makes a direct impact on a vulnerable child’s future.
  2. Spreading the word – Share our fundraising page with your friends, family, and colleagues to expand our reach.

If you wish to donate, click here.

OLN’s Commitment to Community

Our participation in the Peak Race 2025 is part of OLN’s broader dedication to corporate citizenship. Beyond the legal world, we dedicate ourselves to our community – whether it’s through providing pro bono legal services to the elderly via our partnerships with Helping Hand, SAGE and other organisations, or participating in environmental sustainability projects.

At OLN, we believe our responsibility extends beyond legal practice. We are committed to making a difference where it is needed most – supporting vulnerable communities and fostering positive change in Hong Kong and beyond.

Beijing Internet Court: A Landmark in China’s Legal System for Cyber Disputes

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The Beijing Internet Court (“BIC”), established on September 9, 2018, stands as a pioneering institution in the global legal landscape, designed to address the growing challenges posed by the digital economy. As one of the first courts in the world dedicated entirely to internet-related disputes, it represents a significant step forward in adapting legal frameworks to the realities of the digital age. In the first 4 years, the BIC has concluded 150,000 cases. 

Background and Purpose

In China, where e-commerce, digital communication, and online platforms have expanded at an unprecedented rate, disputes related to the internet have surged. From intellectual property rights violations and contract disputes to online defamation and cybersecurity concerns, these cases often involve complex technical issues and a need for specialized legal expertise.

To address this, the Chinese government established the Beijing Internet Court with the aim of providing a streamlined, efficient, and transparent legal process for resolving internet-related cases. Its creation is part of a broader effort to improve the legal environment for internet development, as well as to ensure that the rule of law keeps pace with rapid technological advancements.

Jurisdiction and Scope

The Beijing Internet Court primarily handles four types of cases:

Online Purchase Contracts that signed online through e-platform;Online services contracts signed, performed online;Loan agreement online contracts;Copyright dispute published online.

Samples of cases :  

  1. Disputes arising from the conclusion or performance of online shopping contracts through e-commerce platforms;
  2. Online service contract disputes where the conclusion and performance are completed on the Internet;
  3. Disputes over financial loan contracts and small loan contracts where the conclusion and performance are completed on the Internet;
  4. Disputes over the ownership of copyright or neighboring rights of works published on the Internet for the first time;
  5. Disputes arising from the infringement of copyright or neighboring rights on the Internet of works published or communicated online;
  6. Disputes over Internet domain name ownership, infringement and contracts;
  7. Disputes arising from the infringement of the personal rights, property rights or other civil rights of others on the Internet;
  8. Product liability disputes arising from the infringement of the personal or property rights of others due to the defects of products purchased through an e-commerce platform;
  9. Internet public interest litigations filed by the procurator;
  10. Administrative disputes arising from administrative actions taken by administrative organs such as Internet information service management, Internet commodity trading and relevant service management;
  11. Other Internet civil and administrative cases designated by the people’s court at a higher level.

Technological Integration and Innovations

One of the most notable features of the BIC is its embrace of technology. The court uses various digital tools to streamline the judicial process and make it more accessible to both parties and the public:

  • Online Filing and Proceedings: Litigants can file cases, submit evidence, and attend hearings online, making the process more efficient and accessible, especially for those located far from Beijing.
  • E-Evidence: In many internet-related disputes, traditional forms of evidence such as physical documents are not always available. The BIC has pioneered the use of digital evidence, such as screenshots, website records, and blockchain-based data, to support claims.
  • AI Assistance: The court has incorporated AI tools to help with case management and even provide initial judgments on simpler cases. This technology helps expedite decision-making and reduce the administrative burden on judges.

These innovations reflect China’s broader efforts to modernize its legal system and make it more efficient in the face of new challenges posed by digital technologies.

Transparency and Accessibility

The BIC is also notable for its commitment to transparency. In line with China’s push to modernize its judicial system, the court makes its proceedings and rulings publicly available online. The court has even adopted a system for livestreaming trials, allowing citizens and legal professionals to observe the process in real time. This openness is intended to enhance public trust in the judicial process and ensure accountability.

Additionally, the use of online dispute resolution platforms provides an easy-to-access method for parties to resolve conflicts without the need for physical court appearances. This is especially important in a country as large as China, where access to courts can sometimes be geographically prohibitive.

Impact on Global Legal Systems

The BIC’s establishment has had a significant influence on the development of cyber law. China’s approach to internet-related legal matters also raises important questions about the role of the state in regulating the internet.

For global businesses, the BIC presents both challenges and opportunities. On one hand, companies operating in China must navigate a legal system that is closely integrated with government policy and regulatory frameworks. On the other hand, the court’s specialization offer a more predictable environment for resolving disputes, particularly those related to e-commerce and intellectual property.

Conclusion

The BIC offers a new model for addressing internet-related disputes. Its integration of technology, commitment to transparency, and focus on efficiency make it a significant step in the evolution of the Chinese legal system.

For more information you may refer to the BIC’s official website at Beijing Internet Court

OLN IP – Vera Sung (vera.sung@oln-ip.com) and Angel Luo (angel.luo@oln-ip.com)

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

A Review of In Vitro Fertilisation Regulations in Different Jurisdictions

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(This article was published in the February 2025 Issue of the Hong Kong Lawyer)

In vitro fertilisation (“IVF”) has emerged as a cornerstone of assisted reproductive technology, offering hope to same sex couples, single people, couples facing infertility and/or mothers in high-risk pregnancies. With advancements in medical science, the procedure has become more accessible with increasingly higher success rates, yet the legal frameworks governing IVF vary significantly around the world. This article examines the legal landscape of IVF across a number of jurisdictions, highlighting key regulations, ethical considerations as well as societal implications.

The Rising Importance of IVF

The dawn of IVF began in 1978 with the birth of Louise Joy Brown, the world’s first “test-tube baby”. By 1982 when Brown’s sister was born, the latter was already the world’s 40th IVF baby. Since then, the procedure has evolved, becoming a common solution for men and women struggling to become parents due to various factors as diverse as age, medical conditions and/or lifestyle choices. Since 2001, the World Health Organization has recognised infertility as a significant global health issue affecting millions of people, estimating that worldwide, one of every six persons of reproductive age will experience fertility at some point in their lives; it emphasises the need for equitable access to reproductive technologies.

Jurisdictional Variations and Legal Considerations
Australia

Australia has established a comprehensive legal framework for IVF through the Reproductive Technology Accreditation Committee and the National Health and Medical Research Council. The Assisted Reproductive Technology Act 2007 in New South Wales allows IVF for both medical and social reasons. Publicly supported and private IVF clinics may impose their own age limits on IVF patients. One of the stated objects of the legislation is to prevent the commercialisation of human reproduction – hence the sale of human embryos is not legal in Australia. If donated embryos are used in IVF, they must be donated as altruistic gifts, although the payment of reasonable expenses is allowed. Consent is also a critical component, requiring both partners to agree on the use of their gametes. In New South Wales, providers must seek the approval of the Secretary of the Ministry of Health if embryos over 15 years old are to be used.

Canada

In Canada, the Assisted Human Reproduction Act (“AHRA”) regulates IVF practices, emphasizing patient safety and informed consent. The Act permits IVF for medical reasons, while social IVF is less clearly defined. Storage of embryos is limited to a maximum of 10 years and public healthcare coverage for IVF varies by province, with some offering partial public funding or tax credits for IVF treatments. In the province of Ontario, for example, the government provides treatment for one IVF cycle for one patient per lifetime, provided the patient is a resident of Ontario under 43 years of age. The AHRA prohibits the sale of ova, sperm and/or embryos and specifically states that altruistic donations are in line with Canadian values.

Germany

Germany maintains a conservative stance on IVF. The Embryo Protection Act dates back to 1990 and prohibits egg donation, surrogacy, the creation of embryos for non-medical reasons and limits the number of embryos that can be transferred in one cycle. A few states offer subsidies for IVF to same sex couples and unmarried couples, but the vast majority of states only provide assistance to heterosexual couples. The outdated legal framework reflects societal values that have apparently evolved. The current German coalition government set up an expert commission which in April 2024 recommended legalising and regulating egg donation and making surrogacy legal in limited circumstances.

Hong Kong SAR

Hong Kong’s Code of Practice on Reproductive Technology & Embryo Research was published by the Council of Human Reproductive Technology in 2002 and also reflects conservative values. Since same sex marriage is not yet legally recognised in Hong Kong, couples in same sex marriages and single women are not yet able to access post egg freezing services leading to live pregnancies. Only altruistic IVF is allowed in Hong Kong – commercial surrogacy is not legal. A few public hospitals provide public IVF services to couples where the wife is a Hong Kong permanent resident under the age of 40 years with no biological children. Unfortunately, the waiting period for the initial IVF appointment could be up to three years.

Japan

Japan has seen a rise in IVF popularity – in 2021, 1 in every 11.6 babies born was an IVF baby. Yet legal support for IVF remains limited. The Act on Regulation of Human Cloning Techniques governs IVF practices, only allowing the procedure under strict regulations. Embryo storage is permitted, but the law emphasizes that embryos should not be created for non-medical reasons. Due to the declining birth rate, IVF and other infertility treatments were added to national health insurance in 2022 but are only available to married couples. There are no legal provisions regulating surrogacy in Japan.

United Kingdom

The United Kingdom offers a progressive legal environment for IVF pursuant to the Human Fertilisation and Embryology Act 1990, which also established the Human Fertilisation and Embryology Authority. IVF is permitted for both medical and social reasons, with no age restrictions for women, although clinics may impose their own policies. Public funding for IVF is available depending upon where a patient lives but typically reserved for couples facing medical infertility. Altruistic surrogacy with paid expenses is legal in the UK, but surrogacy agreements are not enforceable.

United States

In the United States, IVF and surrogacy laws are primarily regulated at the state level, leading to significant variations and a complex landscape. While many states have adopted supportive legislation for IVF and commercial surrogacy, others impose restrictions based on ethical or religious beliefs. Insurance coverage for IVF also varies widely, with some states mandating coverage for infertility treatments. In February 2024, IVF treatments came to a standstill in Alabama when the state’s supreme court ruled that frozen embryos should enjoy the same rights as children. Fertility providers paused IVF treatments for fear of prosecution for “wrongful death” in the event any embryos were destroyed during treatment. It was not until certain protections were carved out for fertility providers that IVF treatments resumed.

Conclusion – Ethical and Societal Implications

The legal frameworks surrounding IVF vary considerably across jurisdictions, guided by significantly different cultural, ethical and societal values. Issues such as embryo rights, consent and access to reproductive technologies are at the forefront of public discourse and legislation. 

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Oldham, Li & Nie Excels Once Again in 2025 Chambers’ Greater China Region Guide

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Oldham, Li & Nie (OLN) has been recognised in the 2025 edition of the Chambers’ Greater China Region Guide for its expertise in Corporate/M&A and Family/Matrimonial law.

The guide also highlights two of our lawyers as leading professionals in the region:

Client feedback includes:

  • “They gave us practical advice promptly and always gave us fee estimates in advance” 
  • “Both partner and associate have a thorough understanding of complex intertwined agreements and manage against these, providing invaluable knowledge to our business management”
  • “Oldham, Li & Nie are very commercial and take pride in working to tight deadlines and producing their work on time”
  • “Stephen is very hard-working and commercial”

The Chambers Greater China Region Guide conducts annual evaluations of law firms and lawyers across the Greater China Region, assessing factors such as technical legal skills, professionalism, client service, and business acumen.

For more details on OLN’s rankings, visit our profile in the 2025 Chambers Greater China Region Guide.

How Hong Kong’s Legal System Protects Your Creative Works on Online Sharing Platforms

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Online sharing platforms (OSP), like YouTube and TikTok, have revolutionized the distribution of creative works. While these OSP provide unprecedented opportunities for exposure, they also present significant risks of copyright infringement. Notably, infringers have taken advantage of the borderless nature of the Internet, believing either that their actions are extraterritorial and beyond legal reach, or that copyright owners are unlikely to pursue legal action in the foreign jurisdictions where these infringers reside. Infringers who believe they can act with impunity have inflicted significant harm on copyright owners.

Where the infringement occurs on an OSP, a request may be made by the copyright owner for the removal of the infringing contents. Due to the unregistrable nature of copyright, the OSP may require copyright owners to initiate legal action as further proof of ownership. However, an OSP would usually not express on the specific jurisdiction in which such legal action should be filed.

Choosing the right jurisdiction

There are potentially three options a copyright owner may choose.

A common belief is that a copyright owner may only sue the infringer in accordance with the jurisdiction clause in the Terms and Conditions with the OSP. However, since there is no privity of contract between the owner and the infringer, the jurisdiction clause is likely to be irrelevant.

On the other hand, as copyright is territorial in nature, copyright owners are often advised to pursue legal action in the jurisdiction where the infringer is domiciled. This approach has the apparent advantage of making it difficult for the infringer to evade legal proceedings and enforcement. However, many copyright owners may hesitate to take this route due to their unfamiliarity with the specific foreign legal system, as well as the disconnect between the economic loss incurred and the forum chosen for the lawsuit. Additionally, infringers may intentionally exploit the subtle differences in copyright regimes.

Another option is to initiate legal action in the jurisdiction where the copyright owner is based or has a business presence. Traditionally, it was believed that actions taken abroad could not infringe upon local intellectual property rights, making this option seem unviable.  However, given the borderless nature of the Internet, it is increasingly accepted that the “targeting” of residents within a jurisdiction should be regarded as an act occurring within that jurisdiction. For instance, in the recent English case of Entertainment One UK Ltd & Anor v Sconnect Co Ltd & Ors [2022] EWHC 3295 (Ch), the English Court acknowledged its jurisdiction to adjudicate a dispute involving IP infringements on an OSP where the consumers in the UK were specifically targeted, even though the alleged infringer was based in Vietnam.

Once the option to sue in jurisdictions other than the infringer’s hometown becomes available, pursuing legal action in Hong Kong can be a strategic choice if the copyright owner is based in Hong Kong or if the economic value of their creative works is realized here.

Hong Kong’s advantages in safeguarding copyright

At the heart of Hong Kong’s copyright protection is the Copyright Ordinance, which extends to various forms of creative expression, including music, art, literature, and audiovisual content. This legislation grants creators exclusive rights to reproduce, distribute, and publicly display their works. Under the Copyright Ordinance, no registration is required. Hong Kong also adopts an open system which does not require the claimant to be domiciled or incorporated in Hong Kong.

Where the infringer is domiciled in another jurisdiction, the Court needs to consider whether it should extend its authority to a body outside its jurisdiction. In such case, Order 11 Rule 1(1)(f) of the Rules of the High Court provides a suitable jurisdictional gateway. This rule permits a claim based on a tort to be served on the defendant outside of the jurisdiction if the damage was sustained or resulted from an act committed within Hong Kong.

As explained, “targeting” may now be considered an act within Hong Kong. If Hong Kong customers are targeted, this may also lead to a loss incurred in Hong Kong since the Hong Kong customers may now prefer the infringing content over the infringed content. While the law requires that such loss should be “significant”, there is no requirement for the copyright owner operating in multiple jurisdictions to demonstrate that Hong Kong is the sole or primary location of those losses.

Even if the above is satisfied, the Court still has a discretionary power to decline jurisdiction, especially when there is a more appropriate forum for the specific case. In Entertainment One UK Ltd, the English Court has taken into account the following in finally accepting jurisdiction:

  • The location where the copyright was created or implemented
  • The location where the loss is primarily incurred
  • The location of relevant witnesses

Depending on the objectives of the claimant, an OSP may sometimes only require the commencement of legal action as proof of ownership. In such case, a claimant in Hong Kong may opt to file a writ without further pursuing the matter by serving the writ on the defendant. If the writ remains unserved within one year from the date of its filing, it will automatically expire without any consequences to the claimant.

Conclusion

While navigating jurisdictional complexities can sometimes be daunting, copyright owners can strategically choose where to initiate legal action based on critical factors such as the locations of the owner and the infringer, the nature of their losses, and their imminent and long-term objectives.

In particular, when the infringing act or content in question is connected to Hong Kong, the evolving interpretation of “targeting” enhances the prospects for legal redress in the region. This shift allows copyright owners to leverage local legislation more effectively, ensuring their rights are protected against infringement in this increasingly borderless world.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.