China's Supreme People's Court Amends Judicial Interpretation on Illegal Medical Practice, Exempting Unlicensed Clinics Run by Qualified Doctors from Criminal Liability

On the evening of December 19, the Supreme People's Court promulgated the newly revised "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Practice of Medicine." The most significant change is the deletion of the provision in Item 2, Article 1 of the original interpretation, which classified "an individual establishing a medical institution without obtaining a 'Medical Institution Practicing License'" as illegal practice of medicine. In accordance with the principle that no crime shall be determined without explicit legal provisions, this means that henceforth, licensed physicians who establish medical institutions without permission—primarily referring to those practicing at locations outside their registered medical institutions, or those practicing anywhere after resigning, leaving their posts, or retiring—shall not be held criminally liable for the crime of illegal practice of medicine, even if they have not obtained a "Medical Institution Practicing License."

Modifications relative to the original interpretation include:

I. Delete Item 2 of Article 1 of the Interpretation.

II. Add a new article after Article 3 of the Interpretation, which shall become Article 4 of the amended Interpretation: “Where the act of illegal practice of medicine is the direct and primary cause of death of the patient, it shall be deemed as ‘causing the death of the patient’ as prescribed in Paragraph 1 of Article 336 of the Criminal Law.”

“If the act of illegal practice of medicine is not the direct and primary cause of the patient’s death, it may not be deemed as ‘causing the death of a patient’ under Paragraph 1 of Article 336 of the Criminal Law. However, depending on the circumstances of the case, it may be determined as constituting ‘serious circumstances’ as stipulated in Paragraph 1 of Article 336 of the Criminal Law.”

III. Add a paragraph to Article 5 of the Interpretation as the first paragraph: “The terms ‘medical activities’ and ‘medical practices’ referred to in this Interpretation shall be determined by reference to the definitions of ‘diagnostic and therapeutic activities’ and ‘medical cosmetology’ in the Detailed Rules for the Implementation of the Regulations on the Administration of Medical Institutions.”

In past judicial practice, there have been numerous cases where practicing or retired licensed physicians rented premises or used their own homes to provide medical services. After failing to obtain a clinic license, these individuals were investigated for illegal practice of medicine by health administrative authorities, citing Item 2, Paragraph 1 of the former Judicial Interpretation on Illegal Practice of Medicine, which defines “establishing a medical institution without obtaining a Medical Institution Practicing License.” These cases ultimately resulted in criminal convictions for the crime of illegal practice of medicine by the courts. Such judgments clearly contravene the legislative intent behind the crime of illegal practice of medicine. The subject of this offense is evidently a natural person, primarily referring to individuals who lack physician qualifications or other medical credentials (such as rural doctor or midwife certifications) and who illegally engage in medical activities. Due to their lack of medical knowledge, such conduct clearly poses a threat to the physical health rights of patients seeking care. In contrast, when an individual establishes a medical institution, as long as the personnel providing medical services within that institution hold valid physician qualifications, the absence of approval from health administrative authorities (with the actual likelihood of obtaining such approval being extremely low) does not thereby increase the social harm risk associated with illegal practice of medicine. Convicting clinic operators of the crime of illegal practice of medicine under these circumstances is clearly inconsistent with the legislative purpose of the Criminal Law regarding “illegal practice of medicine.” The underlying motive is to leverage criminal law as a tool to suppress social medical institutions, particularly private clinics, against the backdrop of the dominance of public hospitals.

In the current internet era, many doctors and entrepreneurs are concerned about the legality of online consultations, app-based medical conferences, e-prescribing, and cross-regional surgeries—a concern akin to past debates over the legality of home visits. Today, the Supreme People’s Court’s amendment to the Judicial Interpretation on Illegal Practice of Medicine has addressed these widespread concerns among physicians, aligning with the broader trend of healthcare reform and the growing movement toward physicians’ independent practice.