|Abstract as per original application
The overarching research aim of this project is to develop a unified, coherent and principled concept of “best interests” for the purpose of decision-making on behalf of individuals without mental capacity in Chinese jurisdictions. This project will have a significant and demonstrable impact in Hong Kong, China and Taiwan, where developments on this issue have been minimal.
It is a fundamental legal and ethical principle that all adults with mental capacity should be able to make decisions about their lives. Where an individual is deemed to lack mental capacity to make certain decisions, however, and the power to do so is taken out of her hands, a question arises as to how these decisions should be made on her behalf. Of the two major forms of substitute decision-making, decision-making on the basis of “best interests” has been the form of choice in western jurisdictions such as the United Kingdom, Australia and Canada (with the United States as a notable exception), and in Chinese jurisdictions such as Hong Kong, China and Taiwan. While the jurisprudence on best interest determinations in western jurisdictions has developed vastly over the past few decades, the developments in the Chinese context have been very limited. Although the “best interests” principle is often prominently featured in legislative provisions relating to mental health or guardianship, jurisprudence on what the concept entails is minimal, and the views and wishes of the individual are not consistently consulted. Because of the wide range of decisions that are frequently made on behalf of those without mental capacity, this is a gap that needs to be addressed urgently.
My comparative project will be the first to systematically address this issue, and will do so in several stages. The first will involve mapping out what the current concepts of “best interests” are in the various Chinese jurisdictions, namely Hong Kong, China and Taiwan. The second stage will involve a consideration of the ethical underpinnings of these concepts in the Chinese context, exploring the extent to which they have been influenced by Chinese values and norms. The third stage will evaluate the extent to which these concepts are compliant with international and local legal obligations, and the final stage will involve the development of a unified, coherent concept of “best interests” sensitive to the Chinese context. I will write at least 2 journal articles and 1 conference paper to disseminate my research findings.