Re Imogen (No 6) [2020] FamCA 761 (on AUSTLII) saw the Court called upon to consider the provision of stage 2 hormone treatment to a minor aged 16 years: Imogen, formerly known as Thomas – both being pseudonyms. The father supported the hormone treatment wish of the minor, but the mother opposed it and she also argued that the minor was not Gillick competent in respect of the treatment.
The Court allowed two applications to intervene, by the Australian Human Rights Commisssion and by the Attorney-General of the Commonwealth. Whilst the Attorney-General and the AHRC advocated different approaches, neither sought any order.
Ultimately the primary judge made an order that the proposed stage 2 treatment, being the administration of oestrogen in such dose, in such manner and with such frequency as defined by her treating medical practitioners, was authorised by order of the Court.
Error in guidelines document.
The reasons for judgment made a number of references to a document entitled Australian Standards of Care and Treatment Guidelines: For trans and gender diverse children and adolescents Version 1.2, by M Telfer & Ors, published by the The Royal Children’s Hospital Melbourne. (As to the position of the Royal Australian College of Physicians on that document, see [162] – [163]). The Court noted however at [27] that the document not accurately reflect current Full Court of the Family Court authority, in circumstances where there is a dispute about treatment. The primary judge said:
In its guidelines to health professionals, the Australian Standards make an incorrect assertion about the current state of the law. At page 7, the Australian Standards state, “current law allows adolescent’s clinicians to determine their capacity to provide informed consent for treatment. Court authorisation prior to commencement of hormone treatment is no longer required”. Again, whilst the guidelines say that informed consent from parents/legal guardians should be obtained in relation to puberty suppression (at page 23) and surgical interventions (at page 25), in relation to the commencement of gender affirming hormone treatment the Australian Standards say (at page 24) “…[a]lthough obtaining consent from parents/guardians for commencement of hormone treatment is ideal, parental consent is not required when the adolescent is considered to be competent to provide informed consent”. The effect of the submissions of the Attorney General (and the applications of the ICL and the father) is that the Australian Standards incorrectly state the current law in relation to the need for the consent of parents/guardians to stage 2 treatment. As I shall discuss, the statements in the Australian Standards do not accurately reflect current Full Court authority which binds me, in circumstances where there is a dispute about treatment.
The primary judge held at [35] that if a parent or medical practitioner of an adolescent disputes the Gillick competence of the adolescent, a diagnosis of gender dysphoria or the proposed treatment for same, then an application to the Family Court is mandatory, as further explained below.
The correct approach
In the judgment at [35], the Court made three concise but important findings.
Firstly, whether mandatory or not, once an application is made, the court should make a finding about Gillick competence of an adolescent. If the only dispute is as to Gillick competence, the court should determine that dispute by way of a declaration, pursuant to s 34(1) of the Act, as to whether or not the adolescent is Gillick competent, without the need to make a determination based upon best interest considerations. If a declaration of Gillick competence is made, then that is determinative of the only dispute before the court and the adolescent is left to determine their treatment without court authorisation.
Secondly, notwithstanding a finding of Gillick competence, if there is a dispute about diagnosis or treatment, the court should determine the diagnosis; determine whether treatment is appropriate, having regard to the adolescent’s best interests as the paramount consideration; and then make an order authorising or not authorising treatment pursuant to s 67ZC of the Act on best interest considerations.
Thirdly, if a parent or legal guardian does not consent to an adolescent’s treatment for gender dysphoria, a medical practitioner, who is willing to do so, should not administer treatment to an adolescent who wishes it, without court authorisation.
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