Re A [2022] QSC 159 (on the Supreme Court website)
With thanks to Jennifer Hodge for drawing this Queensland Supreme Court matter to my attention.
The applicant mother sought orders on behalf of a child aged almost 17 years for the administration of stage 2 hormone treatment, in circumstances where the father did not consent to same. The child was born female but identified as male. The child also suffered an autism spectrum disorder.
The Court was satisfied that the child was Gillick competent in respect of the proposed treatment ([16]).
The Court went on to comment at [24]:
Once it is concluded that the child is Gillick competent, the question must be asked why it is that a child who is almost 17 years of age, is Gillick competent and is firm in the view of what treatment they would like, should be denied the opportunity to do so without the consent of both parents. Such a conclusion would be inconsistent with the human rights of the child and a recognition of the importance of Gillick competence and its effect as a matter of law.
The judicial discussion continued as follows:
In Re: Jamie, the then Chief Justice expressed a conclusion that a child who is Gillick competent could consent to treatment and that no Court authorisation was required, absent any controversy. The controversy that was then referred to was a dispute between the parents regarding the treatment. In those circumstances there was a need for authorisation. That interpretation was followed more recently in Re: Imogen.
If it were necessary to decide, I would find that both Re: Jamie and, as a consequence, Re: Imogen, do not correctly state the law. In those circumstances, I would decline to follow those cases. However, as I consider it is correct to view the conclusions expressed by the Chief Justice as obiter dicta, it is not necessary to determine whether in fact the decision was wrong in law.
The Court therefore held at [28] that:
The conclusion that there is no need, once the child is Gillick competent, for Court authorisation means that it is unnecessary to consider a further aspect of the applicant’s application which was the making of declarations authorising the treatment.
Nevertheless the court at [30] held that it was appropriate to make the declaration sought, the consequence of that declaration being that the medical practitioners who received the child’s consent are, as a consequence of that consent, authorised to provide the treatment which is the subject of that consent.
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