Re: Kelvin  FamCAFC 258
In Re: Kelvin  FamCAFC 258 (Re: Kelvin), the Full Court of the Family Court of Australia held that:
- Stage 2 (gender affirming hormone therapy) treatment for gender dysphoria is no longer a special medical procedure requiring the Court’s approval for the treatment of young people who lack Gillick competence; and
- a Gillick competent young person can consent to the administration of Stage 2 treatment without the need for their capacity to be determined by a Court, provided that the treating medical practitioners agree that the young person is competent and the parents of the young person do not object to the treatment.
In so holding, the Full Court of the Family Court has cleared the way for trans and gender diverse young people to access Stage 2 treatment without being forced to attend Court at great expense to their families and health, at least in uncontroversial cases where all agree that treatment should be commenced.
Possibly contentious cases will still need to be referred to a Court for judicial approval. These kinds of cases include those where treatment is disputed by one or more of the parents, the child is in State care, or there are doubts concerning the capacity of the young person to consent.
Gender dysphoria is a term that describes the distress experienced by a person due to an incongruence between their gender identity and their assigned sex. Gender dysphoria is diagnosed in accordance with the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-V) and treatment is administered by multidisciplinary teams in accordance with various internationally and domestically recognised guidelines.
There are 3 stages to the treatment of gender dysphoria in a young person:
- Stage 1 treatment involves the suppression of puberty in a pre-pubescent young person in order to avoid the distress associated with the changes brought on by the young person’s puberty. This treatment is reversible;
- Stage 2 treatment is gender affirming hormone therapy, where the hormonescorresponding to the young person’s gender identity (oestrogen or testosterone) are administered to feminise or masculinise the young person’s body in order to align the young person’s physical characteristics with their identity. Stage 2 treatment is irreversible and can also carry the risk of infertility;
- Stage 3 treatment refers to various surgical interventions, such as chest reconstructive surgery, intended to align the young person’s gender identity and assigned sex.
Re: Kelvin concerns the way in which Stage 2 treatment can be legally commenced and, in particular, the effects of the decision of the Full Court of the Family Court of Australia in Re Jamie (2013) FLC 93-547 (Re Jamie).
In short, the effect of that case was that:
- a Gillick competent young person can consent to the administration of Stage 2 treatment, but that the assessment of a young person’s competence was to be undertaken by a court, rather than the child’s treating doctors; and
- the parents of a young person who lacks Gillick competence cannot consent to the administration of Stage 2 treatment on their child’s behalf because Stage 2 treatment was a special medical procedure of the kind described in Marion’s Case (1992) 175 CLR 218 that could only be authorised by a court.
Therefore, any proposal to commence Stage 2 treatment for a young person with gender dysphoria had to be sanctioned by a court order that either: (1) declared that the young person was competent to consent to Stage 2 treatment; or (2) if the child was not competent, that the Court approved the administration of the treatment.
Against this legal background, Kelvin’s father made an application to the Family Court of Australia in January 2017 seeking court authorisation for the commencement of Stage 2 testosterone therapy for his son, Kelvin.
Kelvin was assigned a female gender at the time of his birth in 2000. By the time of the application, he was 17; had socially transitioned to a male gender; and had, after consultations with multiple health professionals, been diagnosed with gender dysphoria as defined in the DSM-V.
Kelvin’s history of gender dysphoria had, according to the evidence before the Court, led to Kelvin experiencing anxiety and depression, which sometimes manifested as self-harm. These negative feelings were associated with his body, which had already undergone female pubertal changes. Through psychiatric treatment, and his pursuit of a medical transition to align his physical characteristics with his male gender identity, Kelvin’s mental health had been improving.
Kelvin’s decision to pursue a medical transition was supported by both his parents and by his treating doctors. Thus, in accordance with Re Jamie, his father made an application seeking:
- a declaration that Kelvin was competent to Stage 2 treatment; or
- the Court’s approval for Stage 2 treatment to commence (in the event that Kelvin was not Gillick competent).
The application came before Watts J, who held that Kelvin was competent to consent to the administration of Stage 2 treatment. However, his Honour also referred questions of law to the Full Court of the Family Court of Australia for further determination; primarily:
- whether the Full Court confirmed its decision in Re Jamie, that Stage 2 treatment requires the court’s authorisation unless the child was Gillick competent to give informed consent; and
- whether it is mandatory to apply to the Court for a determination of competence where: (1) the child consents to Stage 2 treatment; (2) the treating medical practitioners agree that the child is Gillick competent to consent to treatment; and (3) the parents of the child do not object to treatment.
The Court, constituted by Thackray, Strickland, Ainslie-Wallace, Ryan and Murphy JJ, in 2 separate judgments, held that the answers to both questions were “No”.
Is Stage 2 treatment a special medical procedure?
While the Court unanimously agreed that Stage 2 treatment no longer required court authorisation, the majority and minority judgments differed slightly in their reasoning.
The majority, Thackray, Strickland and Murphy JJ, said that changing medical knowledge, especially in relation to the risks of not treating a young person with gender dysphoria, meant that the therapeutic benefits of the procedure were no longer outweighed by the risk of making a wrong decision and that this meant that Stage 2 treatment was no longer a treatment requiring court approval. In this way, Thackray, Strickland and Murphy JJ considered their decision to build on the principles in Re Jamie, rather than overruling them.
By contrast, the minority, Ainslie-Wallace and Ryan JJ, considered the decision in Re Jamie to be plainly wrong, primarily based on the way in which the Court in that case balanced the therapeutic benefits of Stage 2 treatment against the risks of an irreversible wrong decision. Instead, Ainslie-Wallace and Ryan JJ considered that the question posed by Marion’s Case was whether the intervention was therapeutic or non-therapeutic with reference to the ‘proportionality and purpose’ of the treatment (relying on the dicta of Brennan J from Marion’s Case at 269), not merely whether the treatment was irreversible. In other words, to focus on the irreversible consequences of the treatment did not answer the question about whether the treatment was therapeutic (no court authorisation required) or non-therapeutic (court authorisation required).
Ainslie-Wallace and Ryan JJ held that, having identified a therapeutic purpose for Stage 2 treatment (i.e. the treatment of gender dysphoria), there was no evidence that medical knowledge had ever considered Stage 2 treatment to be anything less than appropriate and proportional for the treatment of gender dysphoria, even at the time of Re Jamie. Nor was there any suggestion in Re Jamie that Stage 2 treatment would be administered for any purpose other than the treatment of gender dysphoria. Therefore, Ainslie-Wallace and Ryan JJ considered that Re Jamie was wrongly decided.
Despite these slight differences in reasoning (which may reflect a different view of the evidence considered in Re Jamie), the Court agreed that Stage 2 treatment could be authorised by a young person’s parents where they lack Gillick competence. The result is to leave the determination of whether Stage 2 treatment is appropriate to a young person’s parents and treating doctors, as informed by best practice guidelines, rather than the Court.
However, it is important to note that the Court’s decision only applies to cases in which the young person, their parents and their treating doctors agree that Stage 2 treatment is necessary, as Thackray, Strickland and Murphy JJ made clear in their judgment:
We note though that in answering that question we are not saying anything about the need for court authorisation where the child in question is under the care of a State Government Department. Nor, are we saying anything about the need for court authorisation where there is a genuine dispute or controversy as to whether the treatment should be administered; e.g., if the parents, or the medical professionals are unable to agree. There is no doubt that the Court has the jurisdiction and the power to address issues such as those.
Therefore, in cases where there is the possibility for controversy, then Court approval will still be required.
Is a Court determination of competence necessary?
While the first question concerned the circumstance in which a child was not Gillick competent to consent to treatment, the second concerned a case in which the child was Gillick competent. As mentioned above, Re Jamie stood as authority for the proposition that the Courts, as opposed to young people’s treating doctors, were required to assess a child’s competence to consent to Stage 2 treatment.
In Re: Kelvin, the Court departed from Re Jamie to hold that the determination of competence was best left to medical professionals, at least in uncontroversial cases where the young person, their parents and treating doctors all agree that Stage 2 treatment should commence.
For Thackray, Strickland and Murphy JJ, this conclusion followed from their earlier conclusion that ‘the nature of the treatment no longer requires court authorisation’. Thus, their Honours continued, ‘there is also no longer a basis for the Court to determine Gillick competence’.
Justices Ainslie-Wallace and Ryan did not devote much express consideration to the determination of the second question, however it is clear from their Honours’ decision that they considered that a competent person, including a Gillick competent young person, could consent to Stage 2 treatment without being required to have that competence assessed by a Court.
Of course, if there were doubts about the competence of the young person, and substitute consent cannot (or will not) be provided, then it would still be necessary to apply for a declaration that the young person is competent.
The decision in Re: Kelvin confirms that Stage 2 treatment for gender dysphoria in young people may be commenced with the consent of the young person themselves, provided that their parents and treating doctors agree, or with the substitute consent of their parents (if the young person is not Gillick competent).
However, in possibly controversial cases, such as where there are disputes between the young person and their parents, where one or both of the young person’s parents disagree, or where the young person is in the care of a State Government Department, there is a residual requirement to apply for Court approval to administer Stage 2 treatment.
At a broader level, the decision also provides guidance on determining whether a treatment is a special medical procedure of the kind caught by the principles in Marion’s Case, and therefore outside the ordinary realm of parental responsibility. In particular, the Court’s approaches in determining the proportionality and purpose of Stage 2 treatment informs how that analysis may play out in other contexts. The judgment suggests that, while medical knowledge defines whether the risks of a treatment are suitably proportionate to be considered therapeutic, that sufficiency of that definition is subject to the approval of a court.
Further, the minority judgment in Re: Kelvin suggests that the possible purposes (some therapeutic, some non-therapeutic) for administration of a treatment may be a key factor in determining whether it requires court approval. This is because medical treatment will often be considered therapeutically proportionate to the risks associated with treatment (except perhaps in cases of medical research), leaving the possible ulterior (non-therapeutic) purposes as the factor that enlivens the requirement to seek court authorisation. In turn, this may explain the results in Marion’s Case – where the High Court was clearly concerned with the potentially eugenicist overtones associated with the sterilisation of an intellectually disabled adult – and in a line of Queensland cases involving abortions performed on 12 year old girls – where the Supreme Court of Queensland appeared to hold concerns that parents may have reasons for approving the performance of abortions other than the best interests of the young person.