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BEFORE the 2017 decision of the Full Court of the Family Court in Re Kelvin, court approval was required for the prescription of hormone treatment to masculinise or feminise a young person’s features consistent with his or her gender identity.
Re Kelvin decided that court approval was not needed so long as there was no disagreement between the parents or between parents and doctors. However, medical practitioners need to be aware that the Family Court did not lift all restrictions, and the provision of hormone treatment to adolescents is still subject to significant constraints.
This article seeks to explain those restrictions and why continuing caution is needed. It is argued that in no circumstances should a medical practitioner initiate gender-affirming treatment for adolescents under 18 years of age without a proper diagnosis and multidisciplinary assessment of gender dysphoria leading to the justification of the appropriateness of this treatment.
The decision in Re Kelvin
The reason why, for a long time, it was considered that court approval was needed, is that the High Court of Australia had held, in the context of sterilisation of intellectually disabled adolescent girls, that such treatment required court approval unless it was for a therapeutic purpose – that is, the sterilisation is an incidental result of surgery performed to cure a disease or to correct a physical malfunction. Originally, this ruling was applied to the prescription of puberty blockers, but in Re Jamie (2013), the Full Court of the Family Court held that puberty blockers could be prescribed without court authorisation. Court approval was still required for cross-sex hormones, because of the grave risk of making the wrong decision. The Court accepted, however, that such hormone treatment could be therapeutic, since it was treating a psychological or psychiatric disorder (paragraph 98).
In Re Kelvin, the Full Court departed from its decision in Re Jamie in holding that court approval was not needed for cross-sex hormone treatment as long as parents and doctors were in agreement. However, the majority placed some caveats on this. Thackray, Strickland and Murphy JJ accepted that as a consequence of developments in the understanding of gender dysphoria (paragraph 162):
the risks involved and the consequences which arise out of the treatment being at least in some respects irreversible, can no longer be said to outweigh the therapeutic benefits of the treatment, and court authorisation is not required. This is so, of course, only where the diagnosis has been made by proper assessment and where the treatment to be administered is in accordance with the best practice guidelines described in the case stated
The first caveat indicated by the majority is that there must be a diagnosis made by a proper assessment. The line of continuity with the decision in Re Jamie is that court approval is not needed if the treatment is a response to a psychological or psychiatric disorder. However, there must be a formal diagnosis of such a disorder for which the treatment is appropriate and proportionate, for otherwise the treatment will be non-therapeutic in its nature and unlawful without the consent of the Court.
What constitutes a “proper” assessment beyond the Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnostic criteria is obviously a matter for the medical profession to determine. The appropriate standard of assessment may change in the light of the continuing debates within the medical profession about diagnosis and treatment of those who identify as transgender. The National Association of Practising Psychiatrists recommends a comprehensive bio-psycho-social assessment be conducted before recommending specific treatment, because gender dysphoria in childhood and adolescence can often be a manifestation of “complex pre-existing family, social, psychological or psychiatric conditions” (here and here).
The second caveat is that “the treatment to be administered is in accordance with the best practice guidelines”. This is a reference to the (then draft) Australian standards of care and treatment guidelines for trans and gender diverse children and adolescents published in 2018. While these guidelines have developed since being first drafted, they require a multidisciplinary approach, drawing upon specialists, including mental health professionals, in various roles.
Can a medical practitioner prescribe treatment where there is a dispute?
Further amplification of the legal requirements was provided by Watts J of the Family Court in Re Imogen (no 6) in 2020. The case concerned a parent, the mother, who was opposed to the provision of cross-sex hormone treatment to an adolescent. In an important judgment, Watts J held that if a parent or a medical practitioner of an adolescent under 18 years old disputes:
- the Gillick competence of the adolescent; or
- a diagnosis of gender dysphoria; or
- proposed treatment for gender dysphoria,
then an application to the court is mandatory. He said (paragraph 63):
[A]ny treating medical practitioner seeing an adolescent under the age of 18 is not at liberty to initiate stage 1, 2 or 3 treatment without first ascertaining whether or not a child’s parents or legal guardians consent to the proposed treatment … If there is a dispute about consent or treatment, a doctor should not administer stage 1, 2 or 3 treatment without court authorisation.
It appears from the judgment also that if there is a dispute between the treating medical practitioners on any of these three issues, then the dispute needs to be referred to the court to determine the question. A similar view has been taken by the High Court in London in a recent case concerning puberty blockers. Lieven J said that where the decision is finely balanced, or there is disagreement between the medical practitioners, court approval should be sought (paragraph 162).
There may, in particular, be disagreement among treating practitioners about whether a young person is Gillick-competent. Three senior judges sitting in the High Court in London in Bell v Tavistock and Portman NHS Foundation Trust have expressed the view that it is most unlikely that a child under 16 could be competent to give an informed consent to puberty blockers (let alone cross-sex hormones). The decision is currently under appeal, but if upheld, then the implications of this important decision will in due course have to be considered in Australia. Already, the Tavistock decision has led one State government to require court approval before its hospital gender clinic provides medical treatment to those under 18 years, pending a review of practice and procedure in this area.
Incorrect legal information in the medical profession
It is important that the medical profession understands these constraints because incorrect advice on the legal requirements has been circulating within the profession. An example of this is a view which has made its way to Australia from the United States to the effect that no mental health diagnosis of gender dysphoria is required at all, and that GPs are sufficiently qualified to initiate puberty blockers or cross-sex hormone treatment. This view reflects a belief that medical practitioners should not be gatekeepers to gender-affirming medical interventions, and the only requirement is the patient’s informed consent to the treatment.
This model was explained in an article written by a medical practitioner in the Australian Journal of General Practice published in June 2020. The author provided advice on how to support trans and non-binary patients in general practice, arguing that gender-affirming hormones can be prescribed and monitored in a primary care setting in most cases, and without the need for a formal diagnosis by a mental health specialist of gender dysphoria. The author indicates that this is lawful in relation to children 16 years and over. Similar information is contained on the TransHub website. It states:
Any GP is able to prescribe gender affirming hormonal therapy for most people aged 16 and above, without requiring approval from a mental health professional or endocrinologist.
With respect, such advice is legally incorrect on three counts.
First, for the reasons given, a formal diagnosis of gender dysphoria is required before prescribing hormonal therapy to any child aged under 18 years.
Second, as the majority judgment indicated in Re Kelvin, what the Family Court has now authorised is treatment in accordance with established guidelines. Invariably, these guidelines require the involvement of a multidisciplinary team.
Third, treatment of those under 18 years of age cannot occur if either parent disagrees with the assessment of the child’s competence to consent, the diagnosis of gender dysphoria or the treatment plan. If the treating doctors disagree, the case also needs to be referred to the court.
Failure to comply with these requirements means the treatment is unlawful, and the medical practitioner is exposed to significant legal risk.
Conclusion
There remain significant legal constraints on the provision of cross-sex hormones to adolescents to masculinise or feminise their bodies because of the effect that such treatment may have on future fertility. This takes it into a special category of case where court approval will, in some instances, be required and conditions are placed upon the provision of treatment without the need for court approval.
Patrick Parkinson AM, is Professor of Law at the University of Queensland.
Dr Philip Morris AM is from the National Association of Practising Psychiatrists.
The statements or opinions expressed in this article reflect the views of the authors and do not represent the official policy of the AMA, the MJA or InSight+ unless so stated.
From Fiona Bisshop:
I would like to retract my earlier comments regarding this article in view of the fact that it may be seen as a personal attack on the authors, which was not my intention, and I would like to apologise to Patrick Parkinson and Phillip Morris for any harm caused to them by my comments. I do however, wish to state that caring for trans people under 18 is vitally important and they deserve thoughtful and respectful support from all .clinicians involved in their care.
I have to take issue with Dr. Bisshop’s claim that gender affirming treatment is not controversial. The scientific basis is of low quality, there are no controlled studies and precious little long term follow up. The numbers of detransitioners are growing daily. Major entities, in Finland, in Sweden, in the United Kingdom, are pulling back and taking a second look at their previous practices.
Identity formation is a key part of adolescent development. It is our duty as doctors to put some real effort into distinguishing which patients may actually benefit from gender affirming treatment. I have been a pediatrician for over 25 years, there is no other field of medicine that allows self diagnosis by minors. This is not settled science and the Society for Evidence-based Gender Medicine (www.SEGM.org) is makingn the case for caution.
Dr Bishop, with all due respect, is incorrect. The science is not settled. It is unknown how to distinguish who will have their gender discomfort, which may be painful and severe, resolve with time or ethical explorative psychotherapy, and who may not. The studies often quoted to support mental health benefit of medical intervention, aggressive treatments which threaten fertility, bones,heart,and,for those seeking feminization, brains and immune systems, are of low quality or entirely absent,as found by UK NICE evidence reviews, Sweden, and the US Endocrine Society. One study finding benefit in a large population in fact had to change its results upon examination to finding no benefit (research article and context at https://segm.org/ajp_correction_2020 ). Most other studies suffer from severe loss to follow-up, being to short in time (comparable to evaluating a recovering alcoholic a week after leaving an inpatient ttreatment centre), and methodological flaws. In addition, most of the more thorough studies such as those from Sweden refer to a completely different community than the under 18s.
No one knows whether the treatments for under 18 or even under 25 work long term, ie for the period of time where post medicalization suicide and regret have been seen, on average 8-10 years for the much more carefully vetted older population. Ten years sounds like a long time but if we are discussing a 16 year old,that’s a (castrated if MTF,or ftm if the atrophy due to testosterone is too much) 26 year old with their life ahead of them. With consequences that they were not developmentally old enough to understand at age 16.
If AUSPATH would produce a 5 or 10 year study without these methodological flaws showing mental health benefit, perhaps a follow up study of those medicalized already starting 5-10 years ago, if they could explain why the thorough Yale-Karolinska study did not, if they could provide information on long term effects that mitigates the alarming health risks already known, then that pathway would have at least some solid scientific basis.
Meanwhile, given that many do respond to ethical explorative psychotherapy, with none of these health risks, it should absolutely be first line.
The claim medical intervention will prevent suicide is unsupported, however telling young people that if they don’t immediately medicalize that suicide risk is high is simply iatrogenic harm, it’s on whoever makes that false claim to impressionable young people.
Risks are high, benefit is unknown, consequences are lifetime, for medical intervention. A safer method is known to sometimes help. A recent guide for psychologists by Evans and Evans is available for those wanting to know more for their own practice and segm.org has been compiling the research evidence for anyone to see for themselves.
Caution is absolutely warranted, so these young people get the care they need to heal.
Thanks to you both for drawing attention to this concerning issue. As a doctor, I find it gravely concerning that there is advice circulating that, if followed, would lead to doctors breaking the law during the provision of care to their patients. I hope the RACGP will issue a correction to this article, which is still on their website. Hearing that TrasHub has failed to correct their informatiion is also worrying.
Notwithstanding the comments by Dr Bisshop, it is not “transphobic” to thoughtfully discuss what is best for our patients, nor to point out the law that all doctors are obliged to adhere to. Dispensing with the civility and professionalism that usually characterises discussions between doctors about patient care, and instead resorting to name calling, does little to advance the debate. Nor does it help our patients.
I concur with “anonymous” that these treatments are indeed hotly contested, and I would like to see Dr Bisshop produce the solid evidence base on which she purports to rely. It is certainly not presented in the recent “Public Statement on Gender Affirming Care ” on the Auspath website, which was so thoroughly critiqued by SEGM
https://ourduty.group/wp-content/uploads/2021/07/AusPATH-response-final-1.pdf
The “Australian Standards of Care” contains an acknowledgement that the evidence base on which they rely is very limited.
https://www.rch.org.au/uploadedFiles/Main/Content/adolescent-medicine/australian-standards-of-care-and-treatment-guidelines-for-trans-and-gender-diverse-children-and-adolescents.pdf
The judgement in the Kiera Bell case currently stands, and along with multiple other recent events as outlined in the excellent comment from “anonymous”, should given all ethical clinicians pause. Apart from the legal issues, permanently sterilising young people is a grave action. It should only be undertaken in the most extreme circumstances. I remain to be convinced that gender dysphoria, however distressing, meets this criteria.
The common claim made by gender clinicians and activists that transitioning minors prevent suicide is unsupported by any significant evidence base.
If doctors reading this wonder why people post anonymously – be aware of the campaigns of silencing, bullying, and reporting to regulatory authorities that go on if anyone (not just doctors) strays from the “orthodox view” on this topic.
https://www.theguardian.com/society/2018/oct/16/academics-are-being-harassed-over-their-research-into-transgender-issues
In response to Fiona Bishop, the treatment is controversial, Finland and Sweden have recently withdrawn offering these treatments to children and adolescents. The AusPATH “Standards of Care” have also been thoroughly criticised by a group of clinicians with decades of combined experience caring for those with gender dysphoria via the recently created group SEGM. https://ourduty.group/wp-content/uploads/2021/07/AusPATH-response-final-1.pdf
The credibility of Parkinson and Morris are beyond reproach, comparatively it is questionable that those whose work involves medically transitioning children are able to be impartial as their livelihoods and reputations are staked on maintaining the industry.
I personally wrote to the Attorney-General of NSW to point out errors on transhub.org in 2020 where Commonwealth law was being misrepresented, yet nothing has been done and the factually untrue statements remain. The website has had ample time to amend their information to reflect the recent court decisions, as in fact, the website is regularly updated.
Bell-v-Tavistock was a landmark decision that made headlines around the world, and it is entirely appropriate that the decision is discussed and reported on. It is notable that ABC, SBS and other Australian commercial media have remained wilfully and notably silent.
No one disagrees with providing appropriate care and support to vulnerable and distressed children, but increasingly, concerns are rightfully being raised about these irreversible and experimental treatments, particularly the haste with which they receiving medical interventions as the invariable outcome is that the child becomes a dependent medical patient requiring medical interventions and care for life.
The rising numbers of destransitioners should give any medical practitioner pause for thought, these numbers are only going to rise commensurate with the explosion in numbers of children presenting at gender clinics around Australia, which is a phenomenon that commenced around 2015.
Any practitioner providing care to this vulnerable community ought to be proceeding in an abundance of caution, the evidence base upon which gender clinics justify their operations are not holding up to scrutiny. The surprise of the three UK High Court judges (including the President of the Queen’s Bench) at the lack of data, lack of follow up and lack of evidentiary base to justify the treatment was fundamental to their decision. Any concerned medical practitioner should read it for themselves. https://sex-matters.org/wp-content/uploads/2021/02/Bell-v-Tavistock-Judgment-1.pdf
(This comment has been edited.)
It’s pretty disappointing that the MJA Insight magazine decided to publish this. Gender affirming treatment is not controversial, it follows evidence-based guidelines around the world and draws on the wealth of experience of healthcare providers who work in this space. This article may cause fear amongst those who care for 16-17 year olds. The resources in question were published prior to the Re: Imogen decision, and thus were correct at the time of publication. It is also premature to comment on the Bell v Tavistock case when the appeal decision is yet to be handed down. Caring for trans youth is vitally important, and articles like this may cause harm to this vulnerable population.
Dr Fiona Bisshop MBBS FRACGP BSc Hons
President – AusPATH (Australian Professional Association for Trans Health)
Many thanks to Patrick Parkinson and Philip Morris for this very important article in AMA Insight warning of the possible legal risks to medical practitioners in prescribing puberty blockers and cross sex hormones to children and adolescents.
As pointed out in their article treatment of gender dysphoria is a controversial area in medicine. However there have been advances in research examining the evidence base for affirmative treatments that has found the evidence base lacking.There are also concerns about the risks of affirmative treatments not adequately explained to patients, bringing up the problem of informed consent and capacity for informed consent.