The provision of medical treatment for a child is ordinarily considered to fall within the scope of parental responsibility. If the parents agree, the Court and/or any relevant authority are unlikely to be concerned by such a decision.
However, there are certain special medical procedures which fall outside of parental responsibility and require determination by the Court.
Special medical procedures include treatment where there is a significant risk of the wrong decision being made and the consequences of such a decision are particularly serious.
Most commonly such special medical procedures include, but are not limited to, treatment for Gender Identity Dysphoria, Disorders of Sexual Development and sterilization.
An application for a special medical procedure can be made by any of the following parties:-
- a parent
- an independent children’s lawyer
- the child, or
- any other person or organization whom may be concerned with the care, welfare and development of the child (i.e. the Department of Communities (Child Safety)).
Gender dysphoria (Gender identity disorder)
Gender dysphoria is the formal medical diagnosis of a person suffering from an inherent dissatisfaction with their assigned sex.
Often the Family Court of Australia is called upon by the parent/s or caregiver/s of a child to make orders allowing a medical practitioner or institution to commence medical treatment for gender reassignment.
Gender reassignment is the medical process undertaken to alter a person’s physical appearance to achieve that of their preferred gender. Such process ordinarily requires hormone treatment or surgery.
Whilst surgical procedures (i.e. the alteration/removal of sex organs and/or breast tissue) are not ordinarily considered appropriate until a child attains adulthood, the Court has the power to make orders that allow a child to commence the hormone treatment stage of gender reassignment.
The process for hormone treatment of gender reassignment ordinarily consists of two stages, namely:-
- stage 1 – the administration of puberty suppressant hormones to halt the child’s development of characteristics specific to the gender they were assigned at birth (the effects are reversible)
- stage 2 – the administration of either oestrogen or testosterone to encourage the child’s development of characteristics specific to their preferred gender (the effects are irreversible without surgical intervention).
Provided that the parents, the child and any treating medical practitioner agrees that the child should commence stage 1 treatment, an Order of the Court in not necessarily required. Stage 1 treatment is considered to fall within the scope of parental responsibility. However, some government departments and medical institutions may still require an Order.
In relation to stage 2 treatment and due to the irreversible nature of the treatment, Court intervention is required. The following approach is undertaken by the Court in relation to its approach to stage 2 treatment:-
- the Court will first determine whether a child is Gillick competent. A Gillick competent child has sufficient understanding and/or intelligence to enable him/her to fully understand the treatment proposed
- if the child is found Gillick competent, no order in relation to stage 2 treatment will be made. A Gillick competent child is able to provide his/her own informed consent to the stage 2 treatment
- if the child is found not to be Gillick competent, the parties will be required to seek an Order from the Court authorising the child to commence stage 2 treatment.
The Court understands that gender dysphoria is a very sensitive issue. In order to protect the child’s identity the Court will do all acts and things necessary to prevent any personal information relating to the child from being published.
Disorders of Sexual Development or Intersex conditions
Disorders of Sexual Development (or intersex conditions) is the formal medical diagnosis of a person born with a variation of the anatomy of both a male and female gender.
Often the special medical procedure sought involves gender reassignment or sterilisation. Ordinarily, such treatment requires an application to the Family Court of Australia for a special medical procedure, seeking orders for treatment to commence.
Gender reassignment is the medical process undertaken to alter a person’s physical appearance to achieve that of their preferred gender. Such process ordinarily requires hormone treatment or surgery.
The process for hormone treatment of gender reassignment ordinarily consists of two stages, namely:
- stage 1 – the administration of puberty suppressant hormones to halt the child’s development of characteristics specific to the gender they were assigned at birth (the effects are reversible)
- stage 2 – the administration of either oestrogen or testosterone to encourage the child’s development of characteristics specific to their preferred gender (the effects are irreversible without surgical intervention).
Provided that the parents, the child and any treating medical practitioner agrees that the child should commence stage 1 treatment, an Order of the Court in not necessarily required. Stage 1 treatment is considered to fall within the scope of parental responsibility. However, some government departments and medical institutions may still require an Order.
In relation to stage 2 treatment and due to the irreversible nature of the treatment, Court intervention is required. The following approach is undertaken by the Court in relation to its approach to stage 2 treatment:
- the Court will first determine whether a child is Gillick competent. A Gillick competent child has sufficient understanding and/or intelligence to enable him/her to fully understand the treatment proposed.
- if the child is found Gillick competent, no order in relation to stage 2 treatment will be made. A Gillick competent child is able to provide his/her own informed consent to the stage 2 treatment.
- if the child is found not to be Gillick competent, the parties will be required to seek an Order from the Court authorising the child to commence stage 2 treatment.
Ordinarily, in circumstances where a child is born with the anatomy of both a male and female gender, the Court will also be required to consider whether surgery is appropriate to remove the anatomy of the non-preferred gender.
If you are unsure as to whether medical treatment being sought on behalf of your child is a special medical procedure our experienced family lawyers can assist you.
Due to the complexity of the application required for the provision of special medical procedures for children, it is important to seek legal advice from a legal practitioner proficient in special medical procedure applications. The family law team at Marino Law holds the expertise required to assist you in all aspects of your application.
Marino Law has been named as a Recommended Gold Coast Family and Divorce law firm for 2020 by the prestigious Doyles Guide Family Law partner Beata Leszczuk has also been named by Doyles as a Recommended lawyer for Gold Coast Family and Divorce in 2020.
Beata Leszczuk is a Queensland Law Society Accredited Specialist in Family Law. Specialist Accreditation acknowledges an additional course of study and the achievement of a high level of practical skill and knowledge in the area of expertise.
