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
Date Written: October 22, 2017
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
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