Keeping family courts out of youth gender care

An alternative framework for resolving disputes over gender health care for children could reduce the stress on children and their families, while also protecting clinicians from undue legal action.

In Australia and around the world, approximately 2-3% of young people identify as transgender, gender diverse or non-binary.

Gender diverse youth experience mental health challenges at significantly higher rates than the general population, and gender-affirming medical care can be vital in improving their mental health and quality of life.

Australian family courts are no longer required to be involved in decision making for gender care if both parents and treating doctors consent, and if the child has been determined capable of making decisions about their health via the Gillick competency test.

However, the courts will become involved when disputes among parties arise.

An alternative to the family courts

In an article published in the Medical Journal of Australia, researchers from Southern Cross University and the University of Melbourne have proposed an alternative framework for managing disputes over gender care that could help minimise family court involvement.

The framework, which the researchers hope could feature in clinical treatment guidelines, is underpinned by the principles of Communication, Autonomy, Relationships and Expertise (CARE).

“We consider that this framework would better promote the rights, wellbeing and autonomy of Gillick competent children and adolescents than court involvement in the medical treatment process,” the authors wrote.

The framework would aim to:

• minimise family court involvement;
• support Gillick competent children to make informed health care decisions;
• protect clinicians against undue legal action;
• resolve disputes in a more efficient and less adversarial manner; and
• contribute to the ongoing body of evidence about gender care options and outcomes.

A new approach to dispute resolution

The authors proposed a five-stage dispute resolution framework, with the intention of stimulating debate about how disputes could be resolved outside of the court.

This framework would begin with shared decision making and patient autonomy, carefully considering the views of the patient, family and their treating team.

Secondly, there would be consultations with specialist clinical bioethicists, who could provide advice and support to clinicians.

Thirdly, there would be mediation to assist all parties in reaching an understanding, potentially with input from a psychiatrist.

Should mediation be unsuccessful, the authors propose resolution by an independent multidisciplinary specialist panel comprising medical specialists, lawyers and individuals with lived experience.

“The panel would make recommendations about viable treatment options, explaining the benefits and risks of each based on current evidence and the individual values of key stakeholders,” the authors wrote.

“A specialist panel that is independent of the treating hospital or clinic is more likely to foster trust and confidence among all stakeholders through independent medical assessment.”

Better outcomes for patients and clinicians

The authors hope that an alternative framework such as theirs would minimise the “unnecessary and harmful burden” of the family court process on children and their families.

“Children and adolescents and their parents are likely to be emotionally invested in decisions about gender care,” the authors wrote.

“Even without court involvement, transgender and gender diverse children and young people experience challenges in accessing gender health care, including obtaining clinical support in an affordable and timely manner.”

The framework would also benefit clinicians in navigating gender care for their patients, as the family courts have been reluctant to engage in current clinical and ethical debate, and clinicians could be left vulnerable to legal action in individual cases.

“We believe that greater clarity and transparency from courts about their role would be valuable for clinicians, to offer guidance about the nature and form of information that should be provided to obtain valid consent and to discharge the clinician’s duty to inform, and to enhance a Gillick competent adolescent’s capacity to use or weigh that information,” the authors wrote.

The authors hope their framework will be considered during the current review of the Australian Standards.

Read the article in the Medical Journal of Australia.

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