Re a Declaration Regarding Medical Treatment for "A"

In this significant case, a mother sought judicial authorisation to consent to Stage 1 puberty blocking medical treatment for her child. After considering the principles which govern such applications, and the circumstances in which no judicial authorisation would be necessary, Lyons SJA held that judicial authorisation should be granted in the circumstances.

Lyons SJA

18 December 2020 (delivered ex tempore)

At the heart of this significant application lay “A”, a 12 year old child who was born male, but identifies and has socially transitioned to being a female. [1], [12]. A’s impending male puberty has caused her significant distress, and has led to her self-mutilating and experiencing suicidal ideation in relation to her gender identity. [13]–[14]. Against this background, A’s mother brought an application, seeking to invoke the Court’s parens patriae jurisdiction to obtain a declaration that the mother can consent to Stage 1 puberty blocking medical treatment for A, without needing to obtain the permission of A’s father. [1]–[2].

Factual background

Lyons SJA found that A has been diagnosed with autism spectrum disorder and is an above average student, despite some behavioural issues at school. [7]. From before her fourth birthday, A started identifying as a girl. [7]. She prefers to wear girls’ clothing, uses “she/her” pronouns and uses a chosen female name, including at school. [7].

Although A’s mother is supportive of her desire to be female, the evidence indicated that A’s father was not. [10]. Further, A’s father was emotionally, verbally and physically abusive towards A and her mother and had been the subject of a domestic violence order. [9]. Ultimately, in early 2017, A and her mother “moved to regional Queensland to escape” A’s father. [10]. They are presently estranged; neither of A’s parents knows the other’s present whereabouts. [10].

After considering this background, Lyons SJA assessed the medical evidence, comprising the affidavits of two of A’s treating medical practitioners. This evidence indicated that A “is increasingly distressed and dysphoric about her body and is very concerned about stopping puberty”. [15]. Both A’s psychiatrist and her endocrinologist diagnosed her with gender dysphoria. [16], [22]. [25]. A’s endocrinologist also deposed that the proposed treatment is reversible and consistent with Australian and international guidelines. [23].

The Court’s jurisdiction to make an order

Lyons SJA accepted that applications such as the one at hand could be brought in the Supreme Court’s parens patriae jurisdiction, which empowers the Supreme Court to “protect children who are unable to look after their own interests”. [27]. Significantly, Lyons SJA relied on the Full Court of the Family Court’s judgment in Re Kelvin (2017) 351 ALR 329 to hold that the court’s authorisation is not always required for gender-affirming treatment of transgender children. [33]–[34]. However, the courts can only be avoided where three criteria are met: [34]:

(a) the young person is considered Gillick competent by their treating medical practitioners and consents to the treatment;

(b) the young person’s medical practitioners propose the treatment; and

(c) neither of the young person’s parents object to the treatment.

When all of these factors exist, the courts will consider the treatment to be “an issue more appropriately determined in the medical realm”, particularly in light of the cost and delay associated with court-based processes. [35]. However, in the absence of any one factor, authorisation will be required from a court, usually the Family Court, due to “its expertise in matters of this nature”. [38].

Application to the instant case

In the instant case, A was assessed as being Gillick competent by one of her treating medical practitioners, but there was uncertainty as to whether it had been endorsed by the whole treatment team. [37]. More critically, there was no consent from A’s father for the procedure, as A and her mother had not been in contact with him for more than three years. [12], [36]. Accordingly, Lyons SJA considered judicial authorisation to be necessary before A could commence the proposed course of treatment. [37].

Her Honour was ultimately satisfied that the orders sought by A’s mother should be granted, in circumstances where: [37]:

• A’s treating medical practitioners were unified in diagnosing her with gender dysphoria;
• The proposed treatment was therapeutic and reversible;
• A and her mother both consented to the proposed treatment;
• The proposed treatment was in line with the national and international best practice;
• A’s mother and the treating medical practitioners considered that the proposed treatment was in A’s best interests and should occur without delay;
• There was some uncertainty over whether or not A was Gillick competent;
• A’s father’s contact details were not known and had not been known for some years;
• There would have been a considerable delay in ascertaining the father’s views of the proposed treatment; and
• A delay in the proposed treatment to obtain the father’s consent would not be in A’s best interests.

In the event, her Honour made the declarations sought by A’s mother.

M Paterson