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

  • Lindy WILLMOTT (a1), Ben WHITE (a2), Christopher STACKPOOLE (a3), Shih-Ning THEN (a4), Hongjie MAN (a5), Mei YU (a6) and Weixing SHEN (a7)...

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.

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Copyright

Footnotes

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*

Professor and Director, Australian Centre for Health Law Research, Faculty of Law, Queensland University of Technology (QUT). The authors acknowledge the research assistance of Isaac Douglass, Riley McDermott, and Penny Neller.

Professor and Director, Australian Centre for Health Law Research, Faculty of Law, QUT.

Research Assistant, Australian Centre for Health Law Research, QUT.

§

Senior Lecturer, Australian Centre for Health Law Research, Faculty of Law, QUT.

**

Associate Professor and Assistant Dean, Law School, Shandong University.

††

Project Manager, Health Law Research Center, Law School, Tsinghua University.

‡‡

Professor and Dean, Law School, Tsinghua University.

Footnotes

References

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1. United Nations Population Division, ‘World Population Prospects: 2015 Revision’ (UN Department of Economic and Social Affairs 2015) <https://esa.un.org/unpd/wpp/DataQuery/> accessed 3 May 2017. Note that the United Nations estimates appear conservative and vary. Euromonitor International predicts an increase in the above 80 age segment by 289% in China and 122% in Australia respectively: ‘Australia in 2030’ (Passport Global Market Information Database (GMID), Euromonitor International 13 August 2012) <www.euromonitor.com/australia-in-2030-the-future-demographic/report> accessed 20 January 2017; ‘China in 2030’ (Passport GMID, Euromonitor International 22 May 2012) <www.euromonitor.com/china-in-2030-the-future-demographic/report> accessed 20 January 2017.

2. United Nations Population Division (n 1).

3. Convention on the Rights of Persons with Disabilities, UN General Assembly Resolution A/RES/61/106 [2006] 189 UNTS 137 (entered into force 3 May 2008); Optional Protocol to the Convention on the Rights of Persons with Disabilities, UN General Assembly Resolution A/RES/61/106, Annex II [2006] (entered into force 3 May 2008).

4. Australia ratified the CRPD on 17 July 2008 and the Optional Protocol on 21 August 2009. China ratified the Convention on 1 August 2008. There are 160 signatories and 173 parties to the Convention, and 92 signatories and 92 parties to the Optional Protocol.

5. This declaration was adopted by the First World Congress on Adult Guardianship Law, ‘Yokohama Declaration’ (International Guardianship Network, 4 October 2010) <www.international-guardianship.com/yokohama-declaration.htm> accessed 3 May 2017. Since 2010, there has been a Second World Congress in 2012 in Australia, a Third World Congress in 2014 in the US, and a Fourth World Congress in 2016 in Germany: ‘Previous Congresses’ (International Guardianship Network) <www.international-guardianship.com/previous-congresses.htm> accessed 27 April 2017.

6. Guardianship and Management of Property Act 1991 (ACT); Guardianship Act 1987 (NSW); Guardianship of Adults Act 2016 (NT); Guardianship and Administration Act 2000 (Qld); Guardianship and Administration Act 1993 (SA); Guardianship and Administration Act 1995 (Tas); Guardianship and Administration Act 1986 (Vic); Guardianship and Administration Act 1990 (WA).

7. Queensland Law Reform Commission, A Review of Queensland’s Adult Guardianship Laws (Report No 67, 2010); Victorian Law Reform Commission, Guardianship Final Report (Report No 24, 2012).

8. Western Australia Department of Attorney-General, Statutory Review of the Guardianship and Administration Act 1990 (July 2015) <www.parliament.wa.gov.au/publications/tabledpapers.nsf/displaypaper/3913697cc31f70b26648cd4748257f100012c4df/$file/tp-3697.pdf> accessed 20 January 2017.

9. SA Health, ‘Advance Care Directives Act 2013’ (Government of South Australia, 2013) <www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/about+us/legislation/advance+care+directives+act+2013> accessed 20 January 2017.

10. The Guardianship of Adults Act 2016 (NT) replaced the Adult Guardianship Act 1988 (NT) from 28 July 2016.

11. See e.g., the Guardianship and Management of Property Act 1991 (ACT) and Public Trustee and Guardian Act 1985 (ACT).

12. New South Wales Law Reform Commission, ‘Review of the Guardianship Act 1987’ (New South Wales Government, 2017) <www.lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Guardianship/Guardianship.aspx> accessed 20 January 2017.

13. Medical Treatment Planning and Decisions Act 2016 (Vic).

14. Queensland Law Reform Commission (n 7) [4.124]-[4.127], [4.138]-[4.148], [5.166]-[5.180]; Victorian Law Reform Commission (n 7) xxi-xxiii.

15. Queensland Law Reform Commission (n 7) [5.166]-[5.180]; Victorian Law Reform Commission (n 7) xxii.

16. Queensland Law Reform Commission (n 7) at [4.124]-[4.127]; Victorian Law Reform Commission (n 7) [7.160].

17. Queensland Law Reform Commission (n 7) at [4.124]-[4.148]; Victorian Law Reform Commission (n 7) xxiv.

18. Ma, Xinyan and Li, Guoqiang, ‘On Adult Deficiency of Capacity for Conduct and Perfection of Adult Guardianship System: With Consideration to System Arrangement of Civil Code’ (2005) 2(7) US-China Law Review 27, 28-32 .

19. Legrand, Pierre, ‘The Impossibility of Legal Transplants’ (1997) 4 Maastricht Journal of European and Comparative Law 111, 114-120 ; Nelken, David, ‘Towards a Sociology of Legal Adaptation’ in David Nelken and Johannes Feest (eds), Adapting Legal Cultures (Hart Publishing, 2001) (Adapting Legal Cultures) 21-28; Roger Cotterrell, ‘Is there a logic of Legal Transplants?’ in Adapting Legal Cultures 75-82; Grajzl, Peter and Dimitrova-Grajzl, Valentina, ‘The Choice in the Lawmaking Process: Legal Transplants vs Indigenous Law’ (2009) 5(1) Review of Law & Economics 615, 619-624 <https://www.degruyter.com/view/j/rle.2009.5.1/rle.2009.5.1.1402/rle.2009.5.1.1402.xml> accessed 27 April 2017; Peerenboom, Randall, ‘Toward a methodology for successful legal transplants’ (2013) 1(1) The Chinese Journal of Comparative Law 4, 14-15 .

20. ibid.

21. Hofstede, Geert, Culture’s Consequences: International Differences in Work-Related Values (Sage Publications 1980); Ashkanasy, Neal, Trevor-Roberts, Edwin and Kennedy, Jeffrey, ‘Leadership Attributes and Cultural Values in Australia and New Zealand Compared: An Initial Report Based on “GLOBE” Data’ (2000) 2(3) International Journal of Organisational Behaviour 37, 39 ; House, Robert, Culture, Leadership, and Organisations: The GLOBE Study of 62 Societies (Sage Publications 2004); Shi, Xiumei and Wang, Jinying, ‘Cultural Distance between China and US Across GLOBE Model and Hofstede Model’ (2011) 2(1) International Business Management 11, 12-16 ; The Hofstede Centre, ‘Cultural Dimensions of China and Australia’ (11 September 2013) <http://geert-hofstede.com/australia.html> accessed 20 January 2017.

22. Then, Shih-Ning, ‘Evolution and Innovation in Guardianship Laws: Assisted Decision-Making’ (2013) 35 Sydney Law Review 133, 144-145 .

23. Recent examples include the recommendations by the Queensland Law Reform Commission (n 7) and Victorian Law Reform Commission (n 7) ch 6.

24. See e.g. Queensland Law Reform Commission (n 7) vol 1 ch 3.

25. See e.g. Guardianship and Administration Act 2000 (Qld) sch 1, s 1; Advance Personal Planning Act (NT), s 6(2); Advance Care Directives Act 2013 (SA), s10(c); Guardianship and Administration Act 1990 (WA), s 4(3); Powers of Attorney Act 2014 (Vic), s 4(2). See also the Minister’s Committee Considering Rights and Protective Legislation for Intellectually Handicapped Persons, ‘Report of the Minister’s Committee on Rights & Protective Legislation for Intellectually Handicapped Persons’ (Parliament of Victoria 1982) 26; Australian Law Reform Commission, Guardianship and Management of Property (Report No 52, ALRC 1989) [2.3] <www.alrc.gov.au/report-52> accessed 27 April 2017. See also internationally, United Nations, CRPD (n 3) Article 12; Yokohama Declaration (n 5) Article 3(1).

26. Parliament of Victoria, Report of the Minister’s Committee (n 25) 25; Australian Law Reform Commission (n 25) [2.4]; Robin Creyke, ‘Who Can Decide? Legal Decision-Making for Others’ (Aged and Community Care Service Development and Evaluation Reports, No 19, Department of Human Services and Health, Aged and Community Care Division, September 1995) 40–41; Queensland Law Reform Commission (n 7) vol 1, 40–41; Victorian Law Reform Commission (n 7) 79.

27. Creyke (n 26) 41-43; Carney, Terry and Tait, David, The Adult Guardianship Experiment: Tribunals and Popular Justice (The Federation Press, 1997) 29 ; Queensland Law Reform Commission (n 7) vol 1, 40–41.

28. See Carney, Terry, ‘The Limits and the Social Legacy of Guardianship in Australia’ (1989) 18 Federal Law Review 231, 237238 , (referring to these principles as ‘maximising’ the size of the ‘zone of autonomy’).

29. Wolfensberger, Wolf, ‘The Principle of Normalization as a Human Management Model: Evolution of a Definition’ in Wolf Wolfensberger (ed), The Principle of Normalization in Human Services (National Institute on Mental Retardation 1972) 26 .

30. Australian Law Reform Commission (n 25) [2.6]; Carney and Tait (n 27); Queensland Law Reform Commission (n 7) vol 1, 40–41.

31. See e.g. Guardianship and Administration Act 2000 (Qld) sch 1, ss 4, 5, and 8; Guardianship Act 1987 (NSW) s 4(c) and (e). See also Victorian Law Reform Commission (n 7) 94.

32. However, the Victorian Law Reform Commission recommended moving away from explicitly including the ‘best interests’ principle as a guiding principle in the guardianship legislation: Victorian Law Reform Commission (n 7) 94.

33. See e.g. Northern Sydney and Central Coast Area Health Service v CT by his Tutor ET [2005] NSWSC 551.

34. Note that this approach has been criticized on the basis that where a person with impaired capacity is cared for informally, ‘it is simply impossible to make every decision based on what will promote the best interests of the incapacitated person’: Herring, Jonathan, ‘Entering the Fog: On the Borderlines of Mental Capacity’ (2008) 83 Indiana Law Journal 1619, 1647 .

35. See the comments of Justice Brennan in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218, 270–71. See also Kerridge, Ian, Lowe, Michael and Stewart, Cameron, Ethics and Law for the Health Professions (4th edn, Federation Press 2013) 375 .

36. See e.g., Guardianship and Administration Act 1993 (SA), s 5(a)-(b); Guardianship and Administration Act 1995 (Tas), s 6(c); White, Ben, Willmott, Lindy and Then, Shih-Ning, ‘Adults Who Lack Capacity: Substitute Decision-Making’ in Ben White, Fiona McDonald and Lindy Willmott (eds), Health Law in Australia (2nd edn, Thomson Reuters 2014) 206-207 .

37. Cantor, Norman L, Making Medical Decisions for the Profoundly Mentally Disabled (The MIT Press 2005) 204211 .

38. Kapp, Marshall B, ‘Legal Interventions for persons with dementia in the USA: ethical policy and practical aspects’ (2001) 5(4) Aging & Mental Health 312, 313 .

39. This may occur where a person has sufficient capacity to decide less complicated decisions such as what to wear, or what to eat for breakfast but may not have capacity to deal with complex financial decisions: Wilkinson, Heather, ‘Empowerment and Decision-making for People with Dementia: The Use of Legal Interventions in Scotland’ (2001) 5(4) Aging & Mental Health 322, 323 .

40. Kapp (n 38).

41. See e.g., Guardianship and Management of Property Act 1991 (ACT) s 6A; Advance Personal Planning Act (NT) s 6(5); Victorian Law Reform Commission (n 7) 94.

42. White, Willmott and Then (n 36) 193, 212–15.

43. Penelope A Hommel, Lu-in Wang and James A Bergman, ‘Trends in Guardianship Reform: Implications for the Medical and Legal Professions’ (1990) 18(3) Law, Medicine & Health Care 213, 215; White, Willmott and Then (n 36) 193, 214.

44. Sabatino, Charles P, ‘Competency: Refining Our Legal Fictions’ in Michael Smyer, K Warner Schaie and Marshall B Kapp (eds), Older Adults’ Decision-Making and the Law, Springer Series on Ethics, Law and Aging (Springer 1996) 1, 811 ; Dhanda, Amita, ‘Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?’ (2007) 34 Syracuse Journal of International Law and Commerce 429, 431 .

45. Frolik, Lawrence A, ‘Plenary Guardianship: An Analysis, a Critique and a Proposal for Reform’ (1981) 23 Arizona Law Review 599, 628 . See also the criticisms in White, Willmott and Then (n 36) 193, 215, fn 119.

46. See e.g., Guardianship Act 1987 (NSW), s 33(2); Guardianship and Administration Act 2000 (Qld), sch 4 (definition of ‘capacity’) (which also includes the element of voluntariness in its definition of capacity).

47. Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290, 291, [1994] 1 All ER 819, 820 (Thorpe J).

48. See e.g., Guardianship and Administration Act 1995 (Tas), s 36(2); Guardianship and Administration Act 1986 (Vic), s 36(2).

49. Sabatino (n 44); Herring (n 34) 1624–25; Queensland Law Reform Commission (n 7) vol 1, 270; and White, Willmott and Then (n 36) 193, 212 fn 103.

50. See e.g., Guardianship Act 1987 (NSW), s 33(2); Guardianship and Administration Act 2000 (Qld), sch 4 (definition of ‘capacity’) (which also includes the element of voluntariness in its definition of capacity); and in relation to medical decisions specifically, Guardianship and Administration Act 1995 (Tas), s 36(2); Guardianship and Administration Act 1986 (Vic), s 36(2). See also White, Willmott and Then (n 36) 193, 212–14.

51. Guardianship and Administration Act 1990 (WA), ss 110ZD(1), 110ZG(1), and 110ZJ(1).

52. White, Willmott and Then (n 36) 193, 238–40.

53. Wilkinson (n 39) 322.

54. Advance directives are also recognized at common law and some jurisdictions (such as New South Wales), rely on the common law, and do not have specific provisions recognizing statutory advance directives in their guardianship legislation.

55. Herring (n 34) 1637; Annette Rid and David Wendler, ‘Can We Improve Treatment Decision-Making for Incapacitated Patients?’ (2010) 40(5) Hastings Center Report 36, 37; Queensland Law Reform Commission (n 7) vol 2, 7–8.

56. White, Willmott and Then (n 36), 193, 238-40.

57. ibid 193, 238.

58. Gordon and Verdun Jones listed the following reasons for having such provisions:

  1. 1)

    1) to clarify the issue of informed consent and thereby protect those providing care and treatment;

  2. 2)

    2) to dispense with the need for protracted and costly guardianship proceedings in cases where a patient is deemed incompetent and requires a substitute decision maker but only while receiving treatment...;

  3. 3)

    3) to ensure that the person authorized as substitute decision maker is the individual most closely related to a patient and, therefore, it is assumed, best able to decide whether or not to consent (or withhold consent) on a patient’s behalf; and

  4. 4)

    4) to provide some safeguards in the form of directions regarding the way in which a substitute decision maker should perform duties.

See Robert M Gordon and Simon N Verdun-Jones, Adult Guardianship Law in Canada (Carswell 1992) 3-100–3-101 (Although Gordon and Verdun-Jones made these comments in the context of mental health patients, these observations were equally applicable to legislatively recognized substitute decision-makers for patients who have impaired capacity generally).

59. See e.g. Powers of Attorney Act 1998 (Qld), s 45. See also, White, Willmott and Then (n 36) 193, 244-46; Carney and Tait (n 29) 54.

60. See e.g., Guardianship and Administration Act 2000 (Qld), s 68, and sch 2, s 7; Guardianship and Administration Act 1986 (Vic), s 3 (definition of ‘special procedure’), and 39(1)(a). See also White, Willmott and Then (n 36) 216-19, 249-52.

61. See e.g., White, Willmott and Then (n 36) 216-19.

62. See generally Carney and Tait (n 27).

63. Parliament of Victoria, Report of the Minister’s Committee (n 25) 28-29.

64. ibid 31.

65. Carney and Tait (n 27) 33.

66. See e.g. Queensland Law Reform Commission (n 7) vol 4 ch 26.

67. Then (n 22) 143.

68. See generally Then (n 22).

69. See Powers of Attorney Act 2014 (Vic), pt 7.

70. Then (n 22) 148-154; Leslie Salzman, ‘Rethinking Guardianship (Again): Substituted Decision Making as a Violation of the Integration Mandate of Title II of the Americans with Disabilities Act’ (2010) 81 University of Colorado Law Review 157.

71. See e.g. New South Wales Attorney General and Justice, ‘New South Wales Trustee & Guardian, Annual Report 2010-11’ (New South Wales Government 2011) 37; Carney, Terry and Beaupert, Fleur, ‘Public and Private Bricolage – Challenges Balancing Law, Services and Civil Society in Advancing CRPD Supported Decision-making’ (2013) 36(1) University of New South Wales Law Journal 175, 191-192 .

72. Victorian Law Reform Commission (n 7), ch 8-9; Powers of Attorney Act 2014 (Vic), pt 7. For a discussion of the initial proposed changes and those that finally resulted in Victorian legislation see Carney, Terry, ‘Supported Decision-Making for People with Cognitive Impairments: An Australian Perspective?’ (2015) 4 Laws 37, 51-52 .

73. Powers of Attorney Act 2014 (Vic), ss 87-89.

74. Carney (n 72) 48-51. See also Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124, ALRC 2014) <www.alrc.gov.au/sites/default/files/pdfs/publications/alrc_124_whole_pdf_file.pdf> accessed 27 April 2017.

75. Then (n 22) 143.

76. ibid 155-66.

77. Zhonghua Renmin Gongheguo Minfa Tongze (中华人民共和国民法通则) [General Principles of the Civil Law of the People’s Republic of China] (promulgated by the National People’s Congress, 12 April 1986, effective 1 January 1987).

78. Zuigao Renmin Fayuan Yinfa Guanyu Guanche Zhixing Zhonghua Renmin Gongheguo Mingfa Tongze Ruogan Wenti de Yijian Shixing de Tongzhi (最高人民法院印发《关于贯彻执行<中华人民共和国民法通则>若干问题的意见(试行)》的通知) [Notice of the Supreme People’s Court on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People’s Republic of China (For Trial Implementation) (issued by the Supreme People’s Court and effective on 2 April 1988).

79. Zhonghua Renmin Gongheguo Laonianren Quanyi Baozhang Fa (2012 Xiuding) (中华人民共和国老年人权益保障法(2012修订)) [Law of the People’s Republic of China on the Protection of the Rights and Interests of the Elderly (2012 Revision)] (promulgated by the Standing Committee, National People’s Congress, 28 December 2012, effective 1 July, 2013, amended 24 April 2015).

80. Zhonghua Renmin Gongheguo Jingshen Weisheng Fa (中华人民共和国精神卫生法) [Mental Health Law of the People’s Republic of China] (promulgated by the Standing Committee, National People’s Congress, 26 October 2012, effective 1 May 2013).

81. Yiliao Jigou Guanli Tiaoli (医疗机构管理条例) Medical Institutions Management Ordinance (issued by the State Council, 26 February 1994, effective 1 September 1994). Zhonghua Renmin Gongheguo Zhiye Yishi Fa (中华人民共和国执业医师法) [Law on Practicing Doctors of the People’s Republic of China] (promulgated by the Standing Committee, National People’s Congress, on 26 June 1998, effective on 1 May 1999).

82. Zhonghua Renmin Gongheguo Qinquan Zeren Fa (中华人民共和国侵权责任法) [Tort Liability Law of the People’s Republic of China] (promulgated by the Standing Committee, National People’s Congress, 26 December 2009, effective 1 July 2010).

83. General Principles (n 77) Article 13.

84. Notice of the Supreme People’s Court on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People’s Republic of China (For Trial Implementation) (n 78) Article 7.

85. White, Willmott and Then (n 36) 195.

86. The Jiangbei District People’s Court of Chongqing City, Hechuan District People’s Court of Chongqing City, Jimei District People’s Court of Fujian Province, and Xuyi County People’s Court of Jiangsu Province announced that people suffering from non-mental diseases that lead to unconsciousness are ‘without or with limited capacity for civil conducts’ in the following cases: (1) Jiang v Jiang for declaring incapacity of Jiang, the People’s Court of Jiangbei District, Chongqing (2013) Special Case No 39. Mr Jiang suffered from bilateral frontal and temporal lobe lesions, massive cerebral infarction, coronary atherosclerotic heart disease, heart failure, pulmonary infection and bilateral pleural effusion, which resulted in his unconsciousness. The court decided that he was unable to recognize his own behaviour and thus is without capacity for civil conducts; (2) Zhang v Zhang for declaring incapacity of Zhang, the People’s Court of Hechuan District, Chongqing (2013) Special Case No 13. Mr Zhang accidentally fell from about 3 metres high at his workplace on December 25 2011, resulting in brain injury, occipital fraction, pulmonary contusion, and multiple body soft tissue injuries. The court declared Mr Zhang with limited capacity for civil rights due to organic brain dementia (moderate and severe) caused by the brain trauma; (3) Yang Jiacheng v Wei Xiuhua for declaring Wei’s limited capacity, the People’s Court of Jimei District, Xiamen, Fujian Province (2013) Special Case No 1. Wei Xiuhua was diagnosed with brain disease caused by intellectual impairment and motor aphasia according to the expert’s forensic psychiatric opinion. Ms Wei was announced by the court as having limited capacity for civil conduct; (4) Luo Shilin v Luo for declaring incapacity of Luo, the People’s Court of Xuyi County, Huaian, Jiangsu Province (2003) Special Case No 424. Mr Luo suffered severe brain damage from a traffic accident on 25 October 2002. He was diagnosed as being in a persistent vegetative state, and totally unable to recognize his own behaviour. The court considered Mr Luo’s situation as a loss of cognitive ability and unconsciousness, thus without capacity for civil conducts.

87. General Principles (n 77) Article 64.

88. Law of the Elderly (2012 Revision) (n 79) Article 26.

89. A unit is a factory or enterprise for whom a person works or used to work. Following social reforms in the mid-20th century, most people in urban areas and some in rural areas belonged to a factory or enterprise of some kind. Collectively, these factories and enterprises are called ‘units’. In more recent times, fewer people are working for government owned factories and enterprises, and more people are working for privately owned enterprises. Accordingly, there has been less reliance on the ‘unit’ and increased focus on ‘neighbourhood committee’. There are two kinds of such committees: street neighbourhood committees which occur in the cities; and village neighbourhood committees which operate outside urban areas. These committees are established to assist people living in the vicinity. They are not government agencies, and the people working in them are not public servants.

90. An ‘appointing unit’ is a community committee, a factory, or an enterprise where a person works or used to work.

91. These duties and responsibilities apply whether the guardian derives authority from the General Principles or has been appointed by the adult under the Law of the Elderly.

92. Medical Institutions Management Ordinance (n 81).

93. Medical Institutions Management Ordinance (n 81) Art 33. Pursuant to Yiliao Jigou Guanli Tiaoli Shishi Xize (医疗机构管理条例实施细则) [Rules for the Implementation of the Medical Institutions Management Ordinance] (issued by the State Council, 29 August 1994, effective 1 September 1994) Art 88, a procedure is likely to be regarded as a special examination or a special treatment if it is dangerous and likely to cause adverse events, dangerous because of the special physical condition of a patient, experimental or costly and likely to become too great a burden to a patient.

94. Wang Zhu, Jieshilun Shiye Xia de Qinhai Huanzhe Zhiqing Tongyiquan Qinquan Zeren (解释论视野下的侵害患者知情同意权侵权责任— 王 竹) [‘The Tortious Liability for the Infringement of the Patient’s Right to Information Consent — From an Explanatory View’] (Fa Xue [Law Science], 2011) 11, 93 <http://lawscience.ecupl.edu.cn/s/288/t/71/p/1/c/3658/list.htm> accessed 9 May 2017.

95. For example, China has adopted the United States concept of punitive damage into its civil law, and has been heavily influenced by the common law in many aspects of its commercial law. Johnson, Vincent R, ‘Punitive Damages, Chinese Tort Law, and the American Experience’ (2014) 9(3) Frontiers of Law in China 321, 323 ; Zhang, Mo, Chinese Contract Law: Theory and Practice (Martinus Nijhoff Publishers 2006) 12 .

96. Cotterrell, Roger, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (Ashgate 2006) 15-20 , 54-63; Lawrence Friedman, ‘Some Comments on Cotterrell and Legal Transplants’ in Adapting Legal Cultures. See further Friedman, Lawrence, The Legal System: A Social Science Perspective (Russell Sage Foundation 1975) 223 , who refers to two categories of legal culture: (a) External legal culture, describing the general attitude of society towards the law and its instrumental use for social purposes; and (b) Internal legal culture, which are the thoughts, modes and institutions of participants.

97. Ashkanasy, Roberts and Kennedy (n 21) 39; House (n 21); Shi and Wang (n 21) 12-16; the Hofstede Centre (n 21).

98. Chen, Jianfu, Chinese Law: Context and Transformation (Martinus Nijhoff Publishers 2008) 65-75 .

99. Cotterrell, ‘Is their Logic in Legal Transplants?’ (n 19) 75-82; Cotterrell, Law, Culture and Society (n 96) 116-125.

100. Hong Kong Law Reform Commission, ‘Substitute Decision-Making and Advance Directives in Relation to Medical Treatment’ (HKLRC 2006) <www.hkreform.gov.hk/en/docs/rdecision-e.pdf> accessed 20 January 2017.

101. Carney, Terry, ‘Globalisation and Guardianship – Harmonisation or (Postmodern) Diversity?’ (2001) 24 International Journal of Law and Psychiatry 95, 105 .

102. Carney, ‘Globalisation and Guardianship’ (n 101) 105; Carney, Terry, ‘Challenges to the Australian Guardianship and Administration Model?’ (2003) 2 Elder Law Review 11, 11-13 ; Carney, Terry, ‘A Regional Disability Tribunal for Asia and the Pacific: Changing the Conversation to a “Conversation”?’ (2011) 7(3) International Journal of Law in Context 319, 325 .

103. Carney and Tait (n 27) 192-97; Carney, Terry, ‘Protection, Populism and Citizenship’ (2000) 17 Law in Context: A Socio-Legal Journal 54 .

104. These factors are essential criteria for the success of a legal transplant: Nelken (n 19) 40-41.

105. Ashkanasy, Roberts and Kennedy (n 21) 39; House (n 21); Shi and Wang (n 21) 12-16; the Hofstede Centre (n 21).

106. Chiu, Helen, Tsoh, Joshua and Yu, Xin, ‘Care arrangements for patients with dementia: China’ in Ennapadam Krishnamoorthy, Martin Prince and Jeffrey Cummings (eds), Dementia: A Global Approach (CUP 2010) 107-109 .

107. Di, Xiaohua and Wu, Yuning, ‘The Developing Trend of the People’s Mediation in China’ (2009) 42(3) Sociological Focus 228.

108. Which, according to the functionalist approach, supports the efficacy of transplantation: Zweigert, Konrad and Siehr, Kurt, ‘Jhering’s Influence on the Development of Comparative Legal Method’ (1971) 19 American Journal of Comparative Law 215.

109. Fan, Ruiping, ‘The Confucian Bioethics of Surrogate Decision Making: Its Communitarian Roots’ (2011) 32(5) Theoretical Medicine and Bioethics 301.

110. Fong, Vanessa, ‘Filial Nationalism among Chinese Teenagers with Global Identities’ (2004) 31(4) American Ethnologist 631, 633-635 . The concept of ‘family’ here is deployed in an expanded idiomatic sense.

111. Wong, Thomas and Pang, Samantha, ‘Holism and Caring: Nursing in the Chinese Health Care Culture’ (2000) 15(1) Holistic Nursing Practice 12; Fan (n 109).

112. Yuesheng, Wang, ‘An Analysis of Changes in the Family Structure between Urban and Rural Areas: On the Basis of the 2010 National Census Data’ (2014) 35(4) Social Sciences in China 100, 108-113 .

113. Fan, Ruiping, ‘Confucian Familism and its Bioethical Implications’ in Shui Chuen Lee (ed), The Family, Medical Decision-Making and Biotechnology (Springer 2007) 21-22 ; Chen, Xiaoyang and Fan, Ruiping, ‘The Family and Harmonious Medical Decision Making: Cherishing an Appropriate Confucian Moral Balance’ (2010) 35 Journal of Medicine and Philosophy 573, 579 ; Chunyan, Ding, ‘Family Members’ Informed Consent to Medical Treatment for Competent Patients in China’ (2010) 8(1) China: An International Journal 139,140-142 ; Fan (n 109) 305-307.

114. Fan, ‘Confucian Familism and its Bioethical Implications’ ibid 20-21; Wuensch, Alexander et al, ‘Breaking bad news in China – the dilemma of patients’ autonomy and traditional norms’ (2013) 22 Psycho-Oncology 1192.

115. Law of the Elderly (2012 Revision) (n 81) Article 26.

116. China Social Security System Development Report (No. 4, Social Sciences Academic Press 2010) 223.

117. ibid 233.

118. Renti Qiguan Yizhi Tiaoli (人体器官移植条例) [Regulation on Human Organ Transplantation] (promulgated by State Council 31 March 2007, effective 1 May 2007).

119. Carney, ‘Globalisation and Guardianship’ (n 101) 105; Carney, ‘A Regional Disability Tribunal for Asia’ (n 102) 325; Carney, ‘Challenges to the Australian Guardianship and Administration Model’ (n 102) 11-13.

120. Zhonghua Renmin Gongheguo Renmin Tiaojie Fa (中华人民共和国人民调解法) [The Law on People’s Mediation] (promulgated by the Standing Committee, National People’s Congress, 28 August 2010, effective 1 January 2011).

* Professor and Director, Australian Centre for Health Law Research, Faculty of Law, Queensland University of Technology (QUT). The authors acknowledge the research assistance of Isaac Douglass, Riley McDermott, and Penny Neller.

Professor and Director, Australian Centre for Health Law Research, Faculty of Law, QUT.

Research Assistant, Australian Centre for Health Law Research, QUT.

§ Senior Lecturer, Australian Centre for Health Law Research, Faculty of Law, QUT.

** Associate Professor and Assistant Dean, Law School, Shandong University.

†† Project Manager, Health Law Research Center, Law School, Tsinghua University.

‡‡ Professor and Dean, Law School, Tsinghua University.

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