June 2024

Hong Kong has long been blessed as one of the communities in the world with the longest life expectancies. This blessing, however, does not come without challenges. With the growing need in elderly care services, improving the legal governance of residential care homes (“RCHs”) is required.

The recently passed Residential Care Homes Legislation (Miscellaneous Amendments) Ordinance 2023 (the “Ordinance”) aims to introduce more stringent requirements for operators of RCHs. The Ordinance will come into force on 16 June 2024.

The highlights of the Ordinance include:

1. Enhancing the welfare of residents – The Ordinance tightens the minimum staffing requirements including a higher nurse/ health worker - resident ratio and an increase in the duty time required for high level care and medium level care RCHs, with grace periods of 2 to 4 years. Further, the Ordinance introduces an increase in minimum area per resident from the current 6.5m2 to 9.5 m2 (for high care level RCHs) and 8 m2 (for medium care level and low care level RCHs). Similarly, grace periods are available for orderly and controlled compliance with the enhanced statutory requirements.

2. Strengthening requirements on RCH operators and home managers – Under the Ordinance, an applicant for a new licence or renewal of licence must propose and appoint a responsible person (“RP”). Both the RP and the operator of RCHs must be a “fit and proper person” to carry out their respective duties. The RP has a statutory duty to ensure adequate supervision of the operation, keeping, management and control of the RCH. The RP is also duty-bound to ensure that the RCH is operated according to the applicable statutory requirements. Non-compliance will lead to criminal sanction. Apart from the criminal liabilities against the RP, section 21B of the Ordinance saliently stipulates that when a sole proprietor, partnership or body corporate commits an offence with the consent or connivance of “a person concerned in the management” of that sole proprietorship, partnership or body corporate, such person also commits the offence. This conveys a message that the law does not tolerate badly managed RCHs.

3. Enhancing the management of medicine, use of restraints and protection of residents’ dignity and privacy – The Ordinance places additional emphasis on the protection of residents in RCHs who are generally frail and unable to protect themselves. It is a statutory requirement under the Ordinance that RCHs must provide adequate facilities or measures to avoid improper exposure of body parts and protect the dignity and privacy of the residents. In addition, RCHs must not use restraints on their residents unless (1) the safety, health or well-being of the resident or other persons is endangered; (2) no other less restrictive means are available; and (3) the requirements relating to obtaining consent to the use of restraint as set out in the Codes of Practice issued by the Director of Social Welfare are complied with.

The Ordinance provides better legal framework for management and operation of RCHs and hopefully the well-being of the residents.