Guardianship and Health Decisions in China and Australia: A Comparative Analysis

Asian Journal of Comparative Law, Forthcoming

27 Pages Posted: 23 Oct 2017 Last revised: 26 Oct 2017

See all articles by Lindy Willmott

Lindy Willmott

Queensland University of Technology - Faculty of Law

Ben White

Queensland University of Technology - Faculty of Law

Christopher Stackpoole

Queensland University of Technology - Faculty of Law

Shih-Ning Then

Queensland University of Technology - Faculty of Law

Hongjie Man

Shandong University

Mei Yu

Tsinghua University

Shen Weixing

Tsinghua University

Date Written: October 22, 2017

Abstract

This article compares the Australian and Chinese adult guardianship systems, and considers whether there is potential for drawing on some (or many) aspects of the Australian model for the Chinese legal framework. Australia has a well-developed guardianship framework that provides mechanisms for making healthcare decisions when an adult is no longer able to do so. This framework has evolved over many years and, in some cases, individuals can decide about medical treatment in advance of the situation arising, or who should be the decision-maker if he or she later loses capacity. The current Chinese legal framework, on the other hand, is a fragmented one and comprises laws that were not designed to deal with how healthcare decisions can be made for a person without capacity. This article outlines the legal framework in both jurisdictions and considers whether, having regard to the fact that these two countries have different values and cultures, there are features of the Australian guardianship system that could inform the development of Chinese law.

Keywords: Health law, Medical law, Adult guardianship, Advance care planning, Enduring powers of attorney, Comparative law, Chinese law

Suggested Citation

Willmott, Lindy and White, Ben and Stackpoole, Christopher and Then, Shih-Ning and Man, Hongjie and Yu, Mei and Weixing, Shen, Guardianship and Health Decisions in China and Australia: A Comparative Analysis (October 22, 2017). Asian Journal of Comparative Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3056909

Lindy Willmott (Contact Author)

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/willmott/

Ben White

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/whiteb/

Christopher Stackpoole

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

Shih-Ning Then

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

Hongjie Man

Shandong University ( email )

27 Shanda Nanlu
South Rd.
Jinan, Shandong 250100
China

Mei Yu

Tsinghua University ( email )

Beijing, 100084
China

Shen Weixing

Tsinghua University ( email )

Beijing, 100084
China

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