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In these proceedings, the Full Court of the Family Court of Australia (the Court) was asked a series of questions relating to the Full Court’s decision in Re: Jamie (2013) FLC 93-547 ('Re Jamie'), in particular whether court authorisation is required for stage 2 medical treatment for Gender Dysphoria and the determination of Gillick competence.
Treatment for Gender Dysphoria consists of stages 1, 2 and 3. Stage 1 treatment is 'puberty blocking treatment' and the effects of this treatment are reversible when used for a limited time of approximately three to four years. Stage 2 treatment involves the use of either oestrogen or testosterone and has irreversible effects. Stage 3 treatment involves surgical interventions.
Between 31 July 2013 and 16 August 2017 the Family Court dealt with 63 cases involving applications for either stage 2 or stage 3 treatment for Gender Dysphoria. Treatment was allowed in all but one of these cases.
Kelvin, now 17 years old, was assigned female at birth in 2000. In April 2014, Kelvin transitioned socially as a transgender person. Kelvin did not undergo stage 1 treatment though and this resulted in significant distress.
Although Gillick competent to consent to stage 2 treatment for Gender Dysphoria, no declaration or order to that effect had been made prior to these proceedings.
The Court recognised that if stage 2 treatment was not carried out, Kelvin’s overall health and wellbeing would almost certainly deteriorate. Further, the Court noted that there was a potential Kelvin may obtain illicit testosterone if unable to obtain medically supervised hormone treatment.
Does the Full Court confirm its decision in Re Jamie to the effect that stage 2 treatment of a child for the condition of Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition) DSM-5 (the treatment), requires the court’s authorisation pursuant to s 67ZC of the Family Law Act 1976 (the Act), unless the child was Gillick competent to give informed consent?
In two separate judgments, the Court found that stage 2 treatment no longer requires court authorisation.
Pursuant to Thackray, Strickland and Murphy JJ, the question was not whether Re Jamie was 'plainly wrong' but rather the appropriateness of departing from Re Jamie in order for the law to effectively reflect the current state of medical knowledge. Thackray, Strickland and Murphy JJ recognised the advancement in medical knowledge since the decision in Re Jamie and the increase in appreciation for the risks associated with not treating a person with Gender Dysphoria.
Pursuant to Thackray, Strickland and Murphy JJ, 'the risks involved and the consequences which arise out of the treatment being at least in some respects irreversible, can no longer be said to outweigh the therapeutic benefits of the treatment'. Further, it was said that ‘the treatment can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority and requires the imprimatur of the Court.’
Ainslie-Wallace and Ryan JJ found ‘by eliding the outcome of therapeutic treatment with the risks and consequences identified in Marion’s case which removed non-therapeutic sterilization from the realm of parental consent, we are of the view that the Full Court erred in its application of Marion’s case [in Re Jamie] and thus the decision should not be followed.’
Where:
is it mandatory to apply to the Family Court for a determination whether the child is Gillick competent?
The Court found that if the nature of stage 2 treatment no longer justifies court authorisation, there is also no longer a basis for the Court to determine Gillick competence.
Questions 3 – 6 were dependent on the answer to question 2 being 'yes'. As such, it was unnecessary for the Court to answer these questions.
© 2018 MinterEllison
