Parenting Orders for Special Medical Procedures

Parenting orders can be about a wide variety of issues but one of the more unusual and complex types of orders relate to special medical procedures, writes TGB's Virginia Bui.

Parenting orders can be about a wide variety of issues but one of the more unusual and complex types of orders relate to special medical procedures, writes TGB’s Virginia Bui.

In recent years, we have seen an increase in the number of applications made to the Family Court of Australia seeking such orders but in particular, orders for the treatment of a phenomenon known as Gender Identity Disorder (GID).  Those diagnosed with GID have the physical characteristics of one sex but who experiences and identities him or herself with being of the opposite sex.

An option for the treatment for childhood GID occurs in two stages; the administration of puberty suppressant hormones (Stage One) which is followed by the provision of hormones inducing the development of sexual characteristics of the sex which the child identifies with (Stage Two).  During this time, if a child stops taking puberty suppressant hormones, pubertal development will resume as normal.  Stage Two usually occurs when the child is approximately 16 years of age.

In the landmark decision of in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (otherwise known as ‘Marion’s case’) the High Court of Australia held that the decision for a child to undergo certain medical procedures lies outside the boundaries of parental responsibility thereby requiring the authorisation of the Court.  In this case, it involved the sterilisation of a child who was severely intellectually disabled.  The Court arrived at its decision on the basis that:

– There was a significant risk of making the wrong decision;

– There was a risk of making an error in relation to Marion’s capacity to consent; and

– The consequences of a wrong decision were particularly grave.

Since this decision there has been a long line of decisions of the Family Court considering the applicability of Marion’s case in applications seeking orders for special medical procedures, both in relation to GID and otherwise.  In other words, whether Court authorisation was required.

This legal issue was addressed in the context of an application for orders for the treatment for GID in the recent decision of the Full Court of the Family Court in Re Jamie [2013] FamCAFC 110.

By way of background, at the time of the initial hearing Jamie was 10 years old and had been diagnosed with GID.  Jamie was born with male physical characteristics however identified with and lived life as a female.  Jamie’s parents had made an application to the Family Court of Australia seeking the Court’s authorisation to consent to treatment for Jamie, under the guidance of Jamie’s medical practitioners.  This treatment involved a two stage process starting with the administration of puberty suppressant hormones followed by treatment of oestrogen once Jamie reached 16 years of age.  There was a degree of urgency in relation to Stage One of the treatment as Jamie has commenced puberty and there were concerns that physiological developments such as the deepening of the voice would be irreversible unless treatment was started immediately.

Justice Dessau made orders authorising Jamie’s parents to consent to Stage One of the treatment for the administration of hormones to suppress puberty.  Her Honour declined to make orders in relation to Stage Two of the treatment finding that it was not possible to determine what would be in Jamie’s best interests at a point six or seven years into the future.

Jamie’s parents sought to appeal from this decision arguing that Court authorisation for the treatment of GID was not required.

In coming to their decision, the Full Court considered Stage One and Stage Two of Jamie’s proposed treatment separately.

Interestingly, one of the arguments advanced during the appeal was that the treatment for GID was not to treat a ‘bodily malfunction or disease’ as defined in Marion’s case.  The Full Court did not accept this submission finding that the definition extended to both psychological and psychiatric disorders.

Ultimately, the Court in distinguishing from Marion’s case held that its authorisation was not required in relation to Stage One of the treatment as the treatment was fully reversible and that there was not a grave risk if a wrong decision was made.  It is noted however that in this decision, there was no dispute that Jamie should undergo the treatment.

In relation to Stage Two of the treatment, the Court considered the question of a child’s capacity to consent to such treatment. At law, this is known as Gillick competence.  As Jamie would be 16 years of age by the time Stage Two of the treatment was to commence, the Court considered whether Jamie would be Gillick competent by that time.  The Court took into account the right of the child to have input into decisions that affected them and the Court ultimately held that if a child is Gillick competent, then the child could consent to the treatment without any Court authorisation provided that there was no dispute. However, the question of whether a child is Gillick competent, even where the treating doctors and parents agree, is a matter which is to be determined by the Court.

After some years of uncertainty, this decision of the Full Court provides further guidance as to the scope of parental responsibility and the jurisdiction of the Court in making decisions in relation to treatment for a child who has been diagnosed with Gender Identity Disorder.

Nevertheless, the law in relation to special medical procedures is highly complex and it is recommended that legal advice be obtained from a lawyer with specialised knowledge in this field.

For advice about parenting orders or any other family law matter, contact your nearest TGB location