Where a ‘special medical procedure’ for a child is proposed, parental consent to the procedure will be insufficient and order of the Family Court will be required.
A special medical procedure is one that is invasive, irreversible, requires major surgery and where the consequences of the procedure give rise to a significant risk of making a wrong decision and a wrong decision carries with it grave consequences.
Examples of special medical procedures include:
- Gender identity dysphoria (GID).
- Surgical gender reassignment.
- Heart surgery.
In June 2015 the Family Court was asked to determine whether a 16-year-old child, known as ‘Dale’, who was transitioning from female to male, was competent to consent to stage 2 of GID treatment (also known as ‘testosterone hormone treatment’).
Dale had already commenced stage 1 treatment (puberty suppression hormone treatment), for which a court order is not required.
As it was likely that stage 2 treatment would result in physical changes that would be difficult to reverse, stage 2 treatment is considered a ‘special medical procedure’ for which a court order is required.
Dale’s parents and his treating medical practitioners believed that Dale was, and should be, able to make his own decision about stage 2 treatment, without a court order being required.
His parents therefore sought a declaration that he be found to be ‘Gillick competent’ and therefore able to make his own decisions in relation to treatment.
In the English case of Gillick, it was held that ‘… parental right yields to the child’s right to make his/her own decisions when he/she reaches a sufficient understanding and intelligence to be capable of making up his/her own mind …’
Gillick has been approved and applied by the Family Court of Australia since 1992 (Marion’s Case).
If a child is found to be Gillick competent:
- The child may consent to the special medical procedure.
- The consent of the child’s parents is not required.
- A court order is not required.
So how does the court determine if a child is Gillick competent?
The court must have regarding the child’s best interests as the paramount consideration.
The child’s ‘best interests will be determined by a consideration of:
- The age and maturity of the child
- The views/wishes of the child
- The urgency of the application
The court will consider the evidence as to the child’s best interests from:
- The child’s parents.
- Expert witnesses such as medical specialists, mental health professionals, counselors, etc.
Having regard to all of the evidence, and making a positive finding as to Dale’s ‘ … intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences, some of which may be irreversible … his views are clear and have not changed … ’, the court determined that Dale was Gillick competent and therefore competent to consent to the stage 2 treatment.
The special medical procedures jurisdiction of the Family Court is intended to protect against wrong decisions by parents that may result in irreversible wrong outcomes for children. The court has demonstrated a willingness to apply the provisions of the Family Law Act to these particularly difficult family circumstances with sensitivity, empathy and compassion.
Vanessa Mathews, accredited family law specialist at Mathews Family Law & Mediation Specialists, can assist with your questions about special medical procedures.
