This article discusses the 31 March 2022 Supreme Court of Queensland decision in the matter of Re A [2022] QSC 159.  This decision has confirmed when court authorisation is required for the treatment of a minor who wants the treatment.  

Facts

The mother of A (who was almost 17 years old) brought an application in the Supreme Court of Queensland parens patriae jurisdiction seeking orders for the administration of gender affirming stage 2 hormone treatment.

The application was made urgently because it was clinically detrimental for A not to receive the treatment at the time it was sought. A was born female but identified as male. The respondent father did not consent to the administration of the Stage 2 treatment and did not acknowledge that his child had gender dysphoria.

Decision

Children under the age of 16 can consent to their own treatment if it is believed that they have enough intelligence, competence and understanding to fully appreciate what is involved in their treatment.

This is known as being ‘Gillick competent’.

The issue was whether A was Gillick competent, with capacity to consent to the treatment notwithstanding the views of one of his parents.

The Court found that A had consistently expressed that he was male over a considerable period of time, beginning from a young age and culminated in him ‘coming out’ at the age of 11.  As such, the Court accepted a long history of gender non-conforming behaviour.

A demonstrated an understanding of the nature and consequences of the treatment, as well as the difficulties of reversing the effects of the treatment. The Court decided that A was able to comprehend and retain the information concerning the treatment and was Gillick competent.

The Court decided A could lawfully consent to the treatment, and that Court authorisation was unnecessary.

Comments

This Queensland case resolves the issue (in that state) of when court authorisation is required for treatment of a minor who actively wants the treatment.   

Whilst this matter was dealt with in Queensland, it will be persuasive in other jurisdictions.

Previous Family Court authority stated that a child who is Gillick competent could consent to their treatment, but that Court authorisation was required if there was any dispute between the child and one or more parent regarding the treatment.

Now, as per the decision in Re A [2022] QSC 159, once it is found that the child is Gillick competent, that brings the matter to an end: no court authorisation is required even if one or more parent disputes the treatment.

If you have a query relating to any of the information in this article, or would like to discuss a matter of your own, please don’t hesitate to get in touch with Holman Webb’s Health, Aged Care and Life Sciences Group today.