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A 2020 court ruling about parental consent around treatment for transgender youth threatens to undermine the concept of Gillick competency in mature minors, say experts.
Re: Imogen ruled that health practitioners cannot legally provide either puberty suppression or gender-affirming hormone treatment without consent from both parents, “even when the young person is assessed by doctors as Gillick competent”, wrote authors in the MJA, led by Professor Fiona Kelly, Dean and Head of School of the La Trobe University Law School.
“As a lawyer, my concern with this case is that it diminishes the notion of Gillick competency,” Professor Kelly told InSight+ in an exclusive podcast.
“Gillick competency emerged in the case of a young woman in the UK seeking access to birth control, and the whole point was to give young mature minors the capacity to access needed health care without the consent of their parents.
“We’re not talking about 10-year-olds, we’re talking about a mature minor who has the capacity to understand the risks involved in treatment and the benefits of the treatment.
“That’s now been inhibited by [Re: Imogen]. The original [Gillick] decision of the House of Lords didn’t say that it was limited to cases where there was no parental controversy. It didn’t say it was limited to certain situations.
“So, what we really have here is an area of medical care that’s been carved out as requiring special precautions and legally that doesn’t make sense,” said Professor Kelly.
Apart from the areas of transgender treatment and birth control, the question of the strength of the Gillick competency concept also underlies whether mature minors can be vaccinated against their parents’ wishes (here and here).
In the transgender space, Re: Imogen has returned treatment of trans youth back to the “bad old days” prior to 2013, when a young person seeking pubertal suppression or gender-affirming hormone treatment had to secure Family Court approval before treatment could start, “even in circumstances where both parents and the young person’s treating doctors supported treatment and considered it to be in their best interest, and the young person was deemed Gillick competent”, wrote Kelly and colleagues.
Speaking with InSight+, Professor Kelly said:
“The first case in this field was way back in the early 2000s with Re: Alex,” she said.
“Alex was the first child who ever came before the Family Court seeking treatment, and that was because he was under the care of the state, so there weren’t any parents to make a decision.
“The Court concluded that any medical assistance that a young trans person sought required Family Court approval, and that was the position for quite some time until the decision in Re: Jamie in 2013.
“In Jamie’s case, the Court held that parents, along with doctors, could consent to medical treatment for young trans people when it came to stage one treatment (puberty blockers), but stage two treatment (gender-affirming hormones) still required court approval, even when the young person was competent to make that decision. Any hormone treatment required the child and their parents to go to court.”
That remained the position until 2017 when Re: Kelvin came to court.
“Re: Kelvin was set up to challenge Re: Jamie and to ask the full court to reconsider that decision around stage two treatment,” Professor Kelly told InSight+.
“[By that time] there had been some considerable medical advances in how we understood the best way to treat trans youth and, in particular, the harms that can flow from delaying or withholding treatment.
“In Re: Kelvin, the Court decided that court approval was no longer needed for stage one or stage two treatments, provided the parents, the child and the doctors were in agreement about treatment.”
An important assumption made by health providers following Re: Kelvin was that as long as at least one parent consented and the Gillick competent child consented, no trip to court was necessary.
But then Re: Imogen came along in 2020.
“Re: Imogen went back to Re: Kelvin and said, no, we actually need to get consent from both parents, in all cases of treatment,” Professor Kelly told InSight+.
“That was unexpected. Doctors were quite surprised to hear [that because] they had been proceeding on the basis that that wasn’t the case.
“Then the second thing that came out of Re: Imogen was the conclusion that where there’s any type of disagreement between parents – what was called ‘controversy between the parents’ – then again, you would have to go back to court.
“Again, that was surprising, because it was assumed [after Re: Kelvin] that a Gillick competent child could consent to treatment themselves, and that their parents were actually not part of that process.
“That’s the very nature of Gillick competency – the child has reached a point of maturity where they no longer need parental consent to seek medical treatment.”
Re: Imogen’s consequences for trans youth waiting for treatment has the potential to be devastating, according to Dr Ken Pang, a paediatrician with the Murdoch Children’s Research Institute and the Royal Children’s Hospital Melbourne (RCH).
“Ultimately, the implication is that [Re: Imogen] is restricting access to care for many young people,” Dr Pang, a co-author of the MJA paper, told InSight+.
“We know, for example, that access to gender affirming care is associated with improved mental health and wellbeing.
“That’s what’s going to suffer based on this ruling.
If a trans child knows their parents disagree about treatment, that might act as a deterrent to them seeking treatment, he said. Some may risk accessing hormones available on the internet black market, and self-medicating.
“We know there are young gender diverse people out in the community who don’t have any support, and they never come to clinic like ours (at the RCH),” said Dr Pang.
“They’re the ones probably most likely to access hormones on the internet, and we know that it happens.
“It’s incredibly dangerous. When we’re prescribing these hormones, we’re regularly seeing people and monitoring their health and we follow particular processes.
“When you’re getting them on the internet and just doing it yourself, all that goes out the window.”
Providers are also being deterred by Re: Imogen from providing services to trans youth, he said.
“There were some private clinics starting to see older adolescents, and were able to do an assessment and start providing hormones to that group. But since Re: Imogen, a lot of those providers working in that space, have said having to go to court and track down parents – that’s a bridge too far.
“That’s further reduced access.”
Professor Kelly told InSight+ that Re: Imogen was a step backwards for the health and wellbeing of Australian trans youth.
“It returns us to the Jamie era when you had kids just waiting it out,” she said.
“Parents who couldn’t afford to go to court, couldn’t pay the legal fees, so their child literally waited out their adolescence until they turned 18.
“Re: Kelvin was designed to remove that – there was evidence heard in Re: Kelvin that demonstrated why that was harmful to young people, particularly in terms of their mental health and risk of self-harm.
“To hear that we’re back to that is really disappointing.”
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This push to make it easier for children to access hormones is in direct contrast to the UK interim CASS inquiry just released that urges caution. It found the evidence that children benefit from hormones was poor quality.
Our mentally unwell daughter was given testosterone as soon as she turned 18. Now 21 she is bedridden & suicidal with regret. The gender clinuc doesn’t want to know about her. We are left picking up the pieces. Watch the detransitioners conference held 12:3.22 by Genspect. Open your eyes to the harm being done to a generation of young people. It’s a catastrophic medical scandal.
It would have been nice to read a more balanced article. I came hear to get an initial understanding of the issue, but instead was met with polarised language and pre-drawn conclusions. It’s clear the author can only see one side of this landmark case — I expected better.
To quote the English High Court in 2020 , “there will be enormous difficulty in a child under 16 understanding and weighing up the long term risks and consequences of the administration of puberty suppression and thus making a competent and informed decision about this treatment”
I doubt the original Gillick decision contemplated young people albeit “mature minors” confronting treatment issues of such gravity. The defining characteristic of adolescence is impulsive and often irrational decision making. The stakes are too high to leave such a determination to a child alone.
Some of the commenters on this article need to read this one — https://insightplus.mja.com.au/2022/9/conversion-practices-curious-openness-vital/ — “there’s a great need for health practitioners in Australia to get better at supporting sexually diverse people, gender diverse people and people from minority religious and cultural traditions” … There is a century of gender diversity studies and history which totally annihilates your binary beliefs. Get with the program.
There is also ‘a world of difference’ between teenagers feeling uncertain and confused about their bodies and sexuality – a normal part of teenage development – and life-altering hormonal or surgical treatments to be undertaken without the input or consent of the teen’s primary carers who might be presumed to know them best.
The latter smacks of the the zealotry of a recruitment drive rather than the considered practice of medicine.
Randall, I would listen to the experts in the field (e.g Dr Ken Pang, as quoted above) as this is a niche/specialised field of adolescent health which those of us not involved know little about..
Also there is a world of difference between socially mandated limits (drinking, voting, driving age requirements) and “psychosexual/physiological” developmental issues which are not under the direct control of the young person.
Poor analogy!
The Gillick case was not quite about a young woman seeking birth control. A mother, Mrs Gillick, wanted to stop the prospective possibility of her daughters receiving such advice and treatment, without their parents’ knowledge and consent (see https://www.bailii.org/uk/cases/UKHL/1985/7.html)
Thanks for this review of Gillick in Australia and elsewhere.
In reply to “Anonymous” , we wait until adolescents are 16 years old to be able to drive a car and give sexual consent, and 18 to be able to legally drink alcohol and vote , these constraints recognising the need for sufficient physical and mental maturity . So why is gender identification any different ? Where is the evidence that there is “lifetime harm” from delaying decisions until age 16, and what of the reverse .i.e potential harm from wrong judgements and gender-bending medical treatments ? Excluding parents of minors from decision-making of this type also is fraught with ethical and legal pitfalls. Age of consent, every time, for me.
It is interesting that this issue has come up in the context of treatment for gender dysphoria. I understand that the clinic at the Royal Melbourne Children’s Hospital was claiming that parental consent was not required for the administration of treatment. Considering the complexity of the issues around gender dysphoria and the lasting or permanent nature of the effects of treatment and the political and social media, it would seem to me that parental consent is necessary, because there may be better ways to relieve the distress manifest by the dysphoria.
Clinics and doctors that deal with and offer a single remedy for any condition, particularly one that is fashionable as gender transition has become, and there are many examples of this.
If there were no such thing as de-transitioners, it might be easier to agree.
Access to puberty suppression has lifetime impact if it can be commenced at a physiologically appropriate stage of early puberty. The age of consent in Australia is 16. By age 16, most adolescents have experienced very substantial changes of puberty: birth-registered female people have developed breasts, and birth-registered male people have developed voice deepening and masculine facial bone structure changes and body shape changes. For a trans young person who has clear, longstanding gender incongruence, who is profoundly distressed by the early changes of unwanted puberty, “wait until you are 16” is not neutral advice: it carries with it risk of lifetime harm from unwanted gendered body characteristics, and risk of worsening mental health and suicidality. Hence, there should be easily accessible care pathways for trans young people to access puberty suppression, which is largely reversible in its effects, at Tanner stage 2 to 3 of puberty, in keeping with national and international guidelines, and without legal barriers.
I think the whole issue has been clouded by pseudoscience , gender “identification” and gender politics. The issue is a controversial one in the community, with deep divisions of opinion. Doctors need to be very careful about assisting underage children to change gender. Why not have the age of consent as the appropriate cutoff ?