Special Medical Procedures: Gender dysphoria - Are parents able to decide what is in their child's best interest? 

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Special Medical Procedures: Gender dysphoria - Are parents able to decide what is in their child's best interest?

In the absence of a Court Order, by law, parents have all the duties, powers, responsibilities and authority in relation to their child. The Family Law Act 1975 defines this bundle of rights as “parental responsibility”.

Generally, providing consent to medical treatment or procedures on behalf of your child will fall within the ambit of your parental responsibility. There are however, certain special medical procedures for children that require Court authorisation.

Medical treatment and procedures that have been classified by the Family Court as ‘special medical procedures’ include non-therapeutic sterilisation, hormonal treatment for gender dysphoria, sex reassignment surgery, bone marrow donation and major invasive surgery.

In recent years, a condition known as gender dysphoria and formerly known as gender identity disorder has been the subject of significant media attention. This has resulted in greater public awareness of the rising, and significant, number of children across Australia who are experiencing distress as a result of the incongruity between their biological gender (and in most cases physical anatomy) and the gender with which they strongly identify and want to be.

Our discussion will primarily focus on the development of the law surrounding the administration of hormonal treatment for children with gender dysphoria.

There must first however be a consideration of the landmark decision of Marion’s case, in which the High Court enunciated the features of a medical procedure which cause it to fall within the category of a special medical procedure requiring Court authorisation.

Marion’s case

In the landmark decision of Secretary, Department of Health and Community Services (NT) v JWB and SMB (1992) 175 CLR 218, now known and referred to as Marion’s case, the High Court considered whether the performance of non-therapeutic sterilisation on a 14 year old girl who suffered severe intellectual disability could be authorised by the child’s parents, or alternatively by the Court.

Marion’s parents had applied to the Family Court (Re Marion (1990) 14 Fam LR 427) for an Order authorising the performance of a hysterectomy and an ovariectomy. The procedures were intended to prevent pregnancy and menstruation and stabilise hormonal fluxes and were considered to be for a non-therapeutic purpose. In the alternative the parents sought a declaration that it was lawful for them to consent to the procedures without a Court Order.

The Full Court of the Family Court held that it was within the parents’ power to consent to the procedures (without a Court Order). It was further held that if the parents applied to the Family Court for an Order, then the Family Court had jurisdiction to authorise the procedures.

On appeal the High Court reversed the decision of the Family Court. The High Court held that it was beyond the scope of the parents’ power to consent to non-therapeutic sterilisation and further determined that whilst the Family Court had jurisdiction to authorise the procedures, it did not have jurisdiction to enlarge the parents’ power to enable them to authorise the procedures nor to approve the parents’ consent to the procedures.

The High Court remarked that, in addition to non-therapeutic sterilisation requiring “invasive, irreversible and major surgery”, there was a “significant risk of making the wrong decision, either as to the child’s present or future capacity to consent or about what are the best interests of the child who cannot consent”, and “the consequences of a wrong decision are particularly grave”.

The High Court held that these factors made Court authorisation necessary and a “procedural safeguard”.

Hormonal treatment for gender dysphoria

Hormonal treatment for children with gender dysphoria typically occurs in two stages.

Stage 1:        Involves the administration of puberty ‘blockers’ which suppress the hormones responsible for puberty

Stage 2:        Involves the administration of cross-sex hormone treatment, which causes the child to develop the pubertal characteristics of the sex with which they identify

In the matter of Re Alex [2004] FamCA 297, the two stages of hormonal treatment were considered together, as one treatment plan. The Family Court held that Court authorisation was required for a child to undergo hormonal treatment for gender dysphoria, such that it was outside the scope of parental power to consent.

In considering the two stages of hormonal treatment together as one treatment plan, the Court did not take account of the important distinction between the two stages. Stage 1 treatment is considered to be entirely irreversible – such that if a child did not wish to continue with Stage 1 treatment, he or she could cease taking the ‘blockers’ and puberty would commence. On the other hand Stage 2 treatment results in the development of pubertal characteristics some of which require surgery to reverse such as breast development (the development of some pubertal characteristics are irreversible, such as voice deepening).

It was not until 2013 that the Family Court determined that Stage 1 treatment did not require Court authorisation, citing its reversible and primarily therapeutic nature (Re Lucy [2013] FamCA 518).

In the subsequent case of Re Jamie [2013] FamCAFC 110, it was reaffirmed that Stage 1 treatment fell within the scope of parental power to consent, with the Court noting that there was a low risk of error from misdiagnosis and an absence of grave consequences from administration of the treatment.

In that case the Court further held that Court authorisation was required for Stage 2 treatment, unless the child was found to be Gillick competent.

Gillick competence

A parent’s right to consent to treatment on behalf of their child ceases if and when the child has capacity to consent to the particular treatment. A child will have that capacity when he or she has “a sufficient understanding and intelligence to enable him or her to understanding fully what is proposed”, (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112).

Whilst there are no precise statements of principle regarding what factors the Court should have regard to when assessing whether a child is Gillick competent, the Court has, in judicial decisions, demonstrated to be guided by the following factors:

  • Detailed medical evidence regarding the child’s understanding of the nature and consequences of the disorder or illness, and of the proposed treatment, both in the short-term and long-term, physically and emotionally;
  • The child’s chronological age, maturity, life experience, general intellect, psychiatric, psychological and emotional state; and
  • Medical experts’ conclusions regarding the child’s capacity.

A Gillick competent child’s decision may still be overridden by the Court if the Court considers that the proposed treatment, or refusal of treatment, is not in the child’s best interests. Even where the child’s parents and medical experts agree that the child is Gillick competent, it remains a matter to be determined by the Court.

In the recent Family Court decision of Re Anita [2016] FamCA 1137, the child’s parents sought a declaration that the child, Anita, was competent to consent to Stage 2 treatment for gender dysphoria.

Anita was born a male in 2000. Following consultation with medical professionals, Anita commenced Stage 1 treatment at the commencement of 2016.  Anita was 16 years of age at the time her parent’s applied to the Family Court regarding Stage 2 treatment.

Each of Anita’s parents provided an Affidavit in support of the Application, detailing Anita’s identification as a female during her early childhood years and Anita’s involvement with various medical practitioners. Expert evidence was provided by a consultant psychiatrist, which addressed Anita’s Gillick competence and also confirmed that Anita’s endocrinologist and psychologist were in agreement to Anita commencing Stage 2 treatment.

The consultant psychiatrist opined that Anita had the ability to:

  • Comprehend and retain both existing and new information regarding the proposed treatment;
  • Provide a full explanation, in terms appropriate to her level and maturity and education, of the nature of Stage 2 treatment;
  • Describe the advantages and disadvantages of Stage 2 treatment;
  • Weigh the advantages and disadvantages in the balance and arrive at an informed decision about whether and when she should proceed with Stage 2 treatment; and
  • Understand that Stage 2 treatment will not necessarily address all of the psychological and social difficulties that she had before commencement of the treatment.

The Court accepted the evidence of Anita’s parents and gave particular weight to the expert evidence provided by the consultant psychiatrist. The Court determined that Anita was competent to fully understand the nature and consequences of Stage 2 treatment, including any risks associated with such treatment and thereby was competent to consent to that treatment occurring.

Applications for medical procedures under the Family Law Act 1975

The process to be followed in Applications for Medical Procedures under the Family Law Act 1975 is set out in Chapter 4, Division 4.2.3 of the Family Law Rules 2004.

A Medical Procedure Application in relation to a child may be made by a parent of the child, a person who has a parenting order in relation to the child, the child, the independent children’s lawyer or any other person concerned with the care, welfare and development of the child.

Pursuant to Rule 4.09, evidence must be given to satisfy the Court that the proposed medical procedure is in the best interests of the child. Evidence must be included from a medical, psychological or other relevant expert to establish the following:

  • The exact nature and purpose of the proposed medical procedure;
  • The particular condition of the child for which the procedure is required;
  • The likely long-term physical, social and psychological effects on the child if the procedure is carried out, and if the procedure is not carried out;
  • The nature and degree of any risk to the child from the procedure;
  • If alternative and less invasive treatment is available, the reason the procedure is recommended instead of the alternative treatment;
  • The procedure is necessary for the welfare of the child;
  • If the child is capable of making an informed decision about the procedure, whether the child agrees to the procedure;
  • If the child is incapable of making an informed decision about the procedure, that the child is currently incapable of making an informed decision, and is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out or within the foreseeable future; and
  • Whether the child’s parents or carer agree to the procedure.

If you are the parent, carer or relative of a child who is contemplating a special medical procedure, such as hormonal treatment for gender dysphoria, it would be helpful to seek detailed legal advice at the earliest opportunity. With experience and expertise in family law, we are here to guide you and your family through the process.