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Precedent (Australian Lawyers Alliance) |
YOUNG PEOPLE’S ACCESS TO GENDER AFFIRMING MEDICAL TREATMENT
By Associate Professor Malcolm Smith
In recent years, the question of whether the law should regulate access to gender affirming hormone treatment for young transgender (trans) and gender diverse people with gender dysphoria (GD) has received significant attention. Since the first Family Court of Australia (Family Court) decision in 2004, there have been more than 100 applications to this Court concerning minors and the commencement of hormone treatment for GD. Consequently, there is a significant body of Australian caselaw on this topic, which has developed primarily in the jurisdiction of the Family Court.[1]
Although Australia was initially the only common law country in the world that required court oversight of decisions of this kind, the issue has recently received judicial attention in England,[2] and also attracted significant media attention.[3] Judges have found the question of whether the court should oversee such decisions a challenging one to address. In Australia, the position initially adopted was that all decisions about hormone treatment for childhood GD must be approved by the court. Although this position has changed in recent years, unfortunately some uncertainty remains about the state of the current law. In this article, I outline the key legal developments in Australia and highlight the need for future clarity in the law.
As noted recently in professional standards in Australia:
‘[w]ith increasing visibility and social acceptance of gender diversity in Australia, more children and adolescents are presenting to community and specialist healthcare services requesting support, advice and gender affirming psychological and medical treatment’.[4]
Young people who identify as trans or gender diverse can experience significant GD. Childhood GD is a serious condition where a child’s subjectively felt identity and gender are not congruent with their biological sex, causing clinically significant distress or impairment in social functioning or other important areas of functioning.[5] The Australian Standards of Care and Treatment Guidelines for trans and gender diverse children and adolescents (Australian Standards) note:
‘it is well recognised that trans and gender diverse individuals are at increased risk of harm because of discrimination, social exclusion, bullying, physical assault and even homicide. Serious psychiatric morbidity is seen in children and adolescents.’[6]
Many young trans and gender diverse people seek specialist support and treatment, which can include pubertal suppression and gender affirming hormones. Hormone treatment for GD is typically given in two stages. Stage 1 treatment involves commencing medication that suppresses puberty.[7] In Australia, gonadotrophin-releasing hormone analogues are typically administered to supress puberty. Stage 1 treatment may be administered to relieve distress for trans adolescents ‘by halting progression of physical changes such as breast growth in trans males and voice deepening in trans females’ and is considered reversible in its effects.[8] Linear growth and weight gain continue while the young person is on these medications. However, a key aim of Stage 1 treatment is to give the young person ‘time to develop emotionally and cognitively prior to making decisions on gender affirming hormone use which have some irreversible effects’.[9]
Regarding Stage 2 treatment, the Australian Standards explain:
‘[g]ender affirming hormones oestrogen and testosterone are used to either feminise or masculinise a person’s appearance by inducing onset of secondary sexual characteristics of the desired gender. Some of the effects of these medications are irreversible, while others have a degree of expected reversibility that is likely, unlikely or unknown’.[10]
Key legal developments in this field have occurred incrementally within the body of caselaw that deals with ‘special medical procedures’. In simple terms, this area of law is concerned with the limits on parental decision-making regarding consent to medical treatment. Those with parental responsibility ordinarily have the power to make decisions for and on behalf of their children.[11] However, there are established categories of special medical procedure that fall outside the realms of parental decision-making. For these categories, decisions about the commencement of treatment must be referred to the court. This is so even where the parents and the treating health professionals agree that it is in the best interests of the child to undergo the treatment in question. As explained further below, both Stage 1 and Stage 2 treatments for GD were initially classed as ‘special medical procedures’ and therefore subject to court approval. Although these principles govern parental decision-making, another key principle that has been considered in these cases is the principle of Gillick competency, named after Gillick v West Norfolk and Wisbech Area Health Authority.[12] This principle recognises that minors can lawfully consent to their own health care if the minor is of sufficient maturity and intelligence to understand fully the nature and effect of the decision in question.
The underlying legal principles relevant to ‘special medical procedures’ were set out in the Australian High Court decision of Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case).[13] The primary issue in Marion’s Case was whether the parents of a profoundly disabled minor could lawfully consent to a sterilisation procedure. Sterilisation was not required to treat a physical disease or illness. The intention was to alleviate distress (including potential future distress that might result from pregnancy) and manage the behavioural issues of the minor. It was determined that for some ‘non-therapeutic’ medical procedures parental consent alone is not sufficient and the matter must be referred to court. It was reasoned that certain types of medical treatment carry such a degree of risk that the court should always be involved, to safeguard the best interests of the child.[14]
Key principles were established in Marion’s Case to determine whether a procedure might be ‘special’. A key threshold factor is whether the treatment is non-therapeutic. (The High Court was reluctant to draw a distinction between therapeutic and non-therapeutic interventions, but considered it a necessary distinction in circumstances where there is a concern about whether parents can lawfully consent.[15]) If a treatment or intervention is deemed non-therapeutic, the presence of a range of further factors may lead the court to determine that it is ‘special’, including where:
• the medical procedure or intervention is grave in nature;[16]
• the treatment is invasive and irreversible;
• there is a risk of a wrong decision being made about a minor’s present or future capacity to consent without court involvement;[17] and
• there is a potential conflict between the interests of the minor and the decision-makers and/or treating health professionals.[18]
The High Court in Marion’s Case foresaw that this reasoning could apply to other treatments or interventions.[19] It has been noted that the categories of special medical procedure are not closed.[20] This means that the principles outlined above can be applied to other types of medical treatment or procedure. This is what happened in the context of hormone treatment for GD.
Re Alex,[21] decided in 2004, determined that Stage 1 and Stage 2 treatments should be considered together as a single treatment package. Both stages were classed as special, based on the principles from Marion’s Case. Chief Justice Nicholson viewed the treatment as non-therapeutic, as it is treatment for a psychological condition rather than a physical disease or illness.[22] It was also held that together both stages of treatment carried permanent, irreversible, and grave consequences, and that there was a risk of making a wrong decision without the involvement of the court. As Re Alex set a precedent for court oversight, further applications were then made to the Family Court, to seek approval to commence hormone treatment. By about 2010, Family Court judges started to question whether Stage 1 treatment required court oversight.[23] In 2013, an appeal was made to the Full Court of the Family Court of Australia (‘Full Court’) in Re Jamie[24] to consider whether court approval was required.
In Re Jamie, the Full Court held that Stage 1 treatment is therapeutic as it is intended to treat a psychological condition. The Full Court concluded that Stage 1 treatment should not require court oversight, based on the reversibility of the treatment. Consequently, parents could lawfully consent to Stage 1 treatment without an application to court. Despite this conclusion, it was determined that Stage 2 treatment continues to require court oversight. This was based on the irreversible and potentially serious consequences of such treatment. In addition, the Full Court also decided that, while Gillick competent minors can, in principle, lawfully consent to treatment, an application must be made to the court so the court can confirm the clinical assessment of the minor’s competency.
The number of applications made to the Family Court increased significantly in the years following Re Jamie. During this time, important scholarship was emerging about the inconsistency of the Full Court’s reasoning in Re Jamie, in terms of how it approached the different stages of treatment and applied the principles set out in Marion’s Case.[25] Scholarship also highlighted the potentially harmful impact that the court process was having on young trans and gender diverse people and their families.[26] In 2017, the Full Court in Re Kelvin[27] was asked to clarify the position regarding Stage 2 treatment. The Full Court held that parents and minors (if Gillick competent) can lawfully consent to hormone treatment without the need for court involvement, provided the treatment is delivered in accordance with relevant treatment clinical guidelines or standards.[28] It was determined that an application to court was still required in cases of ‘controversy’.[29] A controversy is where there is disagreement between the decision-makers and/or clinical team about whether treatment should commence, or a dispute about the minor’s competency.
Importantly, the majority in Re Kelvin noted that the Full Court could depart from its earlier decision if it was determined that the earlier decision was ‘plainly wrong’.[30] Some of the parties and interveners in the case did argue that the decision in Re Jamie was ‘plainly’ wrong. This was centred predominantly on the Court’s application of the reasoning in Marion’s Case.[31] However, the majority stated that ‘it [was] unnecessary and indeed inappropriate for this Court to find that Re Jamie was “plainly wrong”’.[32] Instead, the majority identified ‘a factual difference between the two cases that has relevant legal significance, [such that] there has been a change in the factual understanding on which the earlier decision [in Re Jamie] was based’.[33] To support this view, the majority relied on the change in medical understanding and knowledge around GD.[34] Despite the conclusions reached in Re Kelvin, which appeared to remove the general requirement to refer such cases to the court, numerous further decisions have been referred.
Since Re Kelvin, subsequent cases have caused some uncertainty surrounding the state of the law in Australia on this topic. The cases have addressed decisions about Stage 3 treatment (chest reconstructive surgery – an issue that was not addressed in Re Kelvin),[35] disagreement between parents and the minor’s treating health professionals,[36] and situations where the consent of both parents for the commencement of treatment cannot be obtained.[37]
Re Imogen (No 6) (Re Imogen) is a significant recent decision of the Family Court.[38] Justice Watts determined that, because the majority of the Full Court in Re Kelvin did not conclude that Re Jamie was ‘plainly wrong’, aspects of the earlier decision in Re Jamie were binding. Justice Watts determined that applications to the court must occur in circumstances where a parent or medical practitioner disputes:
‘(i) the Gillick competence of the minor;
(ii) the diagnosis of gender dysphoria; and/or
(iii) proposed treatment for gender dysphoria.’[39]
Justice Watts in Re Imogen also held that the edition of the Australian Guidelines initially published by the Royal Children’s Hospital Melbourne following Re Kelvin was legally incorrect. The earlier version of the Australian Guidelines stated that it was ideal to obtain the consent of the minor’s parents where the minor was assessed as Gillick competent, but not mandatory to do so.[40] Justice Watts determined that parental consent is required in addition to the consent of the Gillick competent minor. Cases decided after Re Imogen demonstrate that an application to the court is required where the consent of both parents cannot be obtained, even in circumstances where one parent has separated from the other due to family and domestic violence.[41]
The decision in Re Imogen is noted as a backwards step, a weakening of the principle of adolescent autonomy that the notion of Gillick competency is intended to promote.[42] Professor Fiona Kelly and fellow legal researchers have noted the significant impact of the current legal position:
‘the decision in Re Imogen may add an additional layer of distress to young people who are not supported in their gender identity by their family members or who are separated from a parent due to other circumstances (eg, family violence, parental estrangement). These are arguably the most vulnerable trans young people within our society and yet recent legal developments only further increase harm. This may occur by forcing a young person to re-engage with a parent who has a history of perpetrating family violence, to disclose confidential personal information to an estranged or uninvolved parent, or to enforce legal barriers (including costs) when consent cannot be established. In this way, the requirement for consent from both parents may not only deny trans young people timely, accessible health care but could also provide the opportunity for parents who are already a negative influence to engage in further interference and exacerbate past experiences of trauma.’[43]
It is interesting to note that developments in this field seem to be out of step with more authoritative interpretations of Gillick. In the Australian context, McHugh J in Marion’s Case noted in respect of Gillick competency that, once a minor is assessed as competent, the parental power to consent comes to an end.[44] More recently, in England, the Court of Appeal considered the issue of Gillick competency when considering whether minors might be able to lawfully consent to hormone treatment for GD.[45] The Court noted that Gillick competency is for the minor’s treating clinician or clinicians to determine and is not generally a matter that must be assessed by the courts.[46] An important question therefore arises about how the requirements outlined by Watts J in Re Imogen align with McHugh J’s interpretation of Gillick competency in Marion’s Case, as well as the English Court of Appeal’s statement that the minor’s competency is for a clinician, rather than judges, to determine.
The issue of whether the court should continue to oversee cases of this kind has presented challenges in Australia. There are indeed challenging questions that arise about whether the risks and potential consequences of treatment in this context necessitate court oversight. In Re Kelvin, the Full Court appeared to accept that there is no continuing need for general court oversight, but that the court may continue to be involved in cases of controversy. However, as the majority did not determine that the decision in Re Jamie was plainly wrong, subsequent caselaw has concluded that an application to court continues to be necessary in some circumstances. This has included cases that involve family or domestic violence, and thereby potentially expose such families to further harm when having to navigate the court process.
The Family Court’s interpretation of Gillick requires clarification. The English Court of Appeal’s interpretation of the principle of Gillick competency makes clear that decisions about minors’ competency rest with the treating clinician or clinicians and not with judges. It is therefore important that the Family Court further addresses the issue of whether an application to court is required in circumstances where the minor is Gillick competent but the consent of both parents cannot be obtained, or one parent disagrees with the clinician’s capacity assessment. Ultimately, the law in this field was intended to protect the welfare and best interests of minors, but the continuing need for court oversight in these cases may significantly harm this potentially vulnerable cohort.
Malcolm Smith, an Associate Professor at the Griffith Law School, Queensland, researches and teaches in the field of health and medical law, as well as teaching torts and contract law. Malcolm’s research focuses on the regulation of assisted reproductive technologies, consent to medical treatment, and medical negligence.
[1] The Family Court has been merged with the Federal Circuit Court to form the Federal Circuit and Family Court of Australia. However, for ease of reference, given that the cases considered in this article were determined by the Family Court, the term ‘Family Court’ is used.
[2] See Quincy Bell and Mrs A v The Tavistock and Portman NHS Foundation Trust and Ors [2020] EWHC 3274; AB v CD & Ors [2021] EWHC 741; and Bell v Tavistock And Portman NHS Foundation Trust [2021] EWCA Civ 1363.
[4] M Telfer et al, Australian Standards of Care and Treatment Guidelines for trans and gender diverse children and adolescents, Version 1.3, The Royal Children’s Hospital Melbourne, 2020 (Australian Standards), 2 <https://www.rch.org.au/uploadedFiles/Main/Content/adolescent-medicine/australian-standards-of-care-and-treatment-guidelines-for-trans-and-gender-diverse-children-and-adolescents.pdf>. The quotes statement referring to the findings in M Telfer, M Tollit and D Feldman, ‘Transformation of health-care and legal systems for the transgender population: The need for change in Australia’, Journal of Paediatrics and Child Health, Vol. 51, 2015, 1051–3.
[5] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-5, 5th ed, 2013, 451–60; it was previously termed gender identity disorder under the DSM-IV.
[6] Australian Standards, above note 4, 2.
[7] Ibid, 15.
[8] Ibid.
[9] Ibid.
[10] Ibid,16.
[11] See Secretary, Department of Health and Community Services (NT) v JWB [1992] HCA 15; (1992) 175 CLR 218 (Marion’s Case). The Family Law Act 1975 (Cth) is also relevant, as s61C provides that each parent of a child under the age of 18 has parental responsibility for that child (unless this is altered by an order of a court).
[12] [1985] UKHL 7; [1986] AC 112. In Marion’s Case, above note 11, the Australian High Court accepted that the principle is part of Australian law, but it was not directly relevant to the decision before the Court, as Marion lacked the capacity in respect of the decision about the sterilisation procedure, and therefore the case is obiter on that point. Nevertheless, it has been accepted in many Australian cases decided by lower courts.
[13] Marion’s Case, above note 11.
[14] Ibid, 250.
[15] The issue of what is regarded as ‘therapeutic’ or ‘non-therapeutic’ is a contentious topic and the reasoning in the High Court decision demonstrates this, as outlined by L Naik, ‘When Is the Sterilisation of an Intellectually Disabled Child “Therapeutic”? A Practical Analysis of the Legal Requirement to Seek Court Authorisation’, Journal of Law and Medicine, Vol. 20, No. 2, 2012, 453–63.
[16] Marion’s Case, above note 11, 252.
[17] Ibid, 250–2.
[18] Ibid.
[20] Re Baby D (No 2) [2011] FamCA 176, [224].
[21] (2004) 180 FLR 89; [2004] FamCA 297.
[22] This is likely to reflect the approach of the plurality in Marion’s Case. Here it was stated: ‘first it is necessary to make clear that, in speaking of sterilisation in this context, we are not referring to sterilisation which is a by-product of surgery appropriately carried out to treat some malfunction or disease. We hesitate to use the expressions “therapeutic” and “non-therapeutic”, because of their uncertainty. But it is necessary to make the distinction, however unclear the dividing line may be’ (at [48]).
[24] Re Jamie (2013) 278 FLR 155; [2013] FamCAFC 110.
[25] F Bell, ‘Children With Gender Dysphoria and the Jurisdiction of the Family Court’, UNSW Law Journal, Vol. 38, No. 2, 2015, 426–54.
[26] F Kelly, ‘“The court process is slow but biology is fast”:* Assessing the impact of the Family Court approval process on transgender children and their families’, Australian Journal of Family Law, No. 30, 2016, 112–28.
[27] Re Kelvin, above note 19.
[28] Ibid, [162].
[29] Ibid, [147].
[30] Ibid, citing Nguyen v Nguyen (1990) 169 CLR 245, 268–270 (Dawson, Toohey and McHugh JJ); Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504, [261]–[301]; and F Firm & Ruane and Ors (2014) FLC 93–611, [163].
[31] For an overview of some of the issues with the application of Marion’s Case in the decision of Re Jamie, see Bell, above note 25.
[32] Re Kelvin, above note 19.
[33] Ibid, [183].
[34] Australian Standards, above note 4; The World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People, Version 7, 2012 <https://www.wpath.org/publications/soc>.
[35] Re Matthew [2018] FamCA 161; Re Ryan [2019] FamCA 112.
[36] See Re Imogen (No 6) [2020] FamCA 761 (Re Imogen).
[37] Re A [2020] QSC 389; (2020) 6 QR 718 (Re A).
[38] Re Imogen, above note 36.
[39] Ibid, [35].
[40] Ibid, [27].
[41] See Re A [2020] QSC 389, [9]–[10].
[42] S Jowett and F Kelly, ‘Re Imogen: A step in the wrong direction’, Australian Journal of Family Law, Vol 34, No. 1, 2021, 31–56.
[43] F Kelly, S Giordano, M M Telfer and K C Pang, ‘Parental consent and the treatment of transgender youth: the impact of Re Imogen’, Medical Journal of Australia, Vol. 6, No. 5, 2022, 219–21 <https://onlinelibrary.wiley.com/doi/10.5694/mja2.51431>.
[44] See Marion’s Case, 316 (per McHugh J).
[45] Bell v The Tavistock & Portman NHS Foundation Trust [2021] EWCA Civ 1363.
[46] Ibid, [76].
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2022/26.html