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.”
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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