The key issue
Whether the Court could issue a declaration that the mother of child “A” (the Applicant) could provide valid consent to Stage 1 puberty blocking medical treatment for “A” without the requirement to obtain the consent of “A”’s father.
The background
“A” is an almost 13-year-old child who was born male and identifies as female.
The evidence suggested that:
- from age four, “A” declared that she was a girl and had adopted she/her pronouns;
- “A” had socially transitioned to the female uniform at school and had chosen a female name which she used on the school roll and her bus pass;
- “A” and the Applicant had been estranged from “A”’s father since May 2017 (on the background of his illicit drug use and emotional, verbal and physical abuse culminating in a domestic violence order that has since expired);
- “A”’s father’s whereabouts were unknown and he was unsupportive of “A”’s desire to be female and made comments of a threatening and demeaning nature; and
- “A”’s treating multidisciplinary team recommended the proposed treatment.
“A”’s treating psychiatrist, Dr B, had formed a view that “A has been insistent, persistent and consistent in her female gender identity for six years [and] meets the DSM V diagnostic criteria for Gender Dysphoria in Childhood and Adolescence”. Dr B considered the proposed treatment was in “A”’s best interest as it would reduce the risk of future mental health problems (including the well-documented risks of deliberate self-harm and suicide in untreated transgender adolescents) and maximise the best medical transition to female identity. Dr B also reported that “A” had the capacity to understand the nature and intention of the use of the reversible puberty blockers and was well aware of the treatment risks and complications.
“A”’s treating endocrinologist, Dr C, agreed with the diagnosis and confirmed that the proposed treatment was consistent with Australian Standards of Care and Treatment Guidelines for supporting Trans and Gender Diverse Children and Adolescents. Dr C noted that there were some risks of sub-optimal bone mineral accrual, impaired fertility, low blood pressure, and elevated blood potassium levels, however, it was in “A”’s best interest to proceed with treatment without delay as it met best practice guidelines and the failure to treat would increase the risks of major depressive disorder and self-harm. Dr C was not convinced that “A” was Gillick competent but noted that she was anxious to commence treatment and prevent the progression of puberty.
The Outcome
The Court was satisfied that it was in “A”’s best interests to commence the proposed treatment without delay, noting that there would be considerable delay in contacting the father and ascertaining his views on the proposed treatment.
The Court therefore declared that the Applicant could give valid and lawful consent to the administration of medication(s), including Lucrin and/or Spironolactone to “A” for the purpose of blocking or suppressing “A”’s future natal puberty and/or reducing the effect of “A”’s natal puberty, without the need for seeking or obtaining the consent of “A”’s father.
Implications
The parens patriae jurisdiction is exercised by the Court to protect children who are unable to look after their own interests. In exercising the jurisdiction, the Court may override the wishes of a child’s parents, with the dominant consideration always being whatever is in the best interests of the child.
Here, the Court held that it was in “A”’s best interest to commence puberty blocking treatment, despite the views of the father not being obtained.
Recent developments in the parens patriae jurisdiction means that Court orders are no longer required for a child if the child consents to treatment, the treating team agree that the child is Gillick competent (i.e. sufficient understanding and intelligence to fully understand what is proposed), and both the child’s parents do not object to treatment.
However, Court authorisation will be required where:
- the child is not considered Gillick competent by their treating medical practitioners;
- the child’s medical practitioners do not recommend treatment; and/or
- one or both of the child’s parents object to the treatment.
To read the full case of Re a Declaration Regarding Medical Treatment for “A” [2020] QSC 389, click here.
