Legal update: Re Kelvin a big win for stage 2 access

1 Dec 2017

Landmark judgment removed the need to go through the Family Court to access stage 2 treatment.

On the 30th November 2017, the Full Court of the Family Court comprising five Judges handed down judgment in the eagerly anticipated case of Re Kelvin. [1] The Full Court was asked to consider whether its decision in Re Jamie [2] remained the law in Australia and whether court authorisation was still required for Stage 2 treatment for gender dysphoria where the child, medical practitioners and parents agreed and the child’s medical practitioners believed the child to be competent to consent to the proposed treatment. The Full Court unanimously answered no to both questions.

Background on stage 2 access

Gender dysphoria is a term that describes the intense distress experienced by people due to incongruence between their gender identity and their sex assigned at birth. A diagnosis of gender dysphoria is usually made when specific diagnostic criteria are met, the distress has been present for at least six months duration and when the condition is associated with clinically significant distress or impairment in social, occupational or other important areas of functioning.

Best practice medical treatment for gender dysphoria has recently been adopted into Australia’s specific guidelines for the care and treatment of transgender and gender diverse children.   That treatment is usually defined as falling into three categories, Stage 1, Stage 2 and Stage 3.  Stage 1 involves the use of puberty blocking treatment which halts the progression of puberty for the child and allows the young person sufficient time with which to develop capacity before Stage 2 treatment is proposed.  The effects of Stage 1 treatment are reversible and treatment is usually given for a period of three to four years.  Stage 2 treatment involves the administration of cross sex hormones (oestrogen for children with a female identity and testosterone for children with a male identity).  It’s usually commenced at an age when children are sufficiently mature and intelligent enough to understand the consequences of the treatment and to give an informed consent given its irreversible nature. Stage 3 treatment involves surgical alteration of the child’s body.

Until Re Kelvin, the law in Australia very clearly required that Stage treatment be authorised by a Court before it could commence. 

In the well-known case of Re Jamie, the Full Court of the Family Court considered these issues in great detail, ultimately concluding that consent for Stage 2 treatment fell outside the bounds of parental responsibility because of the significant risk of making a wrong decision, the irreversible nature of the treatment and because it was non therapeutic in nature, i.e., treatment not designed to preserve and promote life and health.  The Court in Re Jamie however held that authorisation was not necessary for Stage 1 treatment because the effects of the treatment were reversible and the impact of a wrong decision not particularly grave.

Of course, parents are only required to authorise treatment for their minor children if those children are not competent to consent to treatment themselves.  The usual test for assessing competency, known widely as “Gillick competence” assesses when a child achieves sufficient understanding and intelligence to understand fully what is proposed.[3]

Gillick competent children can consent to their own medical treatment and do not need parental consent for such treatment.  However, Gillick competence is a legal test, and as such, competency cannot be assessed by medical practitioners only the Courts.  Consequently, prior to Re Kelvin,  children who wished to access Stage 2 treatment still needed to apply to the Family Court for a declaration that they were competent to consent to such treatment.

Between July 2013 and August 2017, the Family Court had dealt with 63 cases involving applications for Stage 2 or Stage 3 treatment. 62 of those applications were approved with an average wait time between filing and hearing of 26 days.  In a recent study undertaken in 2016, it was found that the average wait time between initiating the legal process and hearing was some eight months with the financial costs of the proceedings varying from between $8,000 to $30,000 for those families unable to access pro bono legal services.

Judgment in Re Kelvin

The majority in Re Kelvin first considered whether it was now appropriate to depart from Re Jamie so that the law was now able to effectively reflect the current state of medical knowledge in relation to gender dysphoria. The Court noted that since the decision in Re Jamie, medical knowledge and understanding of gender dysphoria had changed markedly and evolved significantly. Important changes had been made to the definition of the condition and international standards had been developed by the International Transgender health body and adopted by Australia.

In addition, the increased risks of not treating a young person with gender dysphoria were more widely known.  It was more apparent that there were increased risks of anxiety, depression, self-harm and attempted suicide if treatment is not allowed to progress as well as complications from the long term use of Stage 1 treatment.

The Court ultimately agreed with the submissions made by most of the parties to the case that “the development in the treatment of and the understanding of Gender Dysphoria allows this Court to depart from the decision of Re Jamie. In other words, 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.” [4]

In addition, given that nature of the treatment no longer justifies court authorisation, there is also no longer a need for the Court to determine Gillick competence.

 

Effect of Re Kelvin

For most young people who wish to access Stage 2 treatment, Re Kelvin means they don’t have to make an application to the Family Court to authorise treatment.  Children, and families, will be able to access treatment as recommended by their treating medical practitioners.

This applies irrespective of whether the child is Gillick competent to make the decision as to treatment.  If medical staff believe that a child is not Gillick competent, that treatment can still be authorised by their parents on their behalf.

If one parent for the child is absent from their lives, or not in contact with the child, then the decision whether or not to treat will be made by medical staff in accordance with their best practice guidelines.  Of course, if the child is competent, then the consent of one or both parents is not required. Ordinarily, such treatment will be able to progress if the medical staff are satisfied that appropriate consent has been given by either the child or a parent of the child.

Please note that you may still need Court authorisation in the following circumstances:

• There is a genuine dispute between parents, or people who have parental responsibility for a child, as to whether treatment should proceed
• There is a dispute between the child and / or their parents and medical staff as to whether treatment should proceed
• There is a genuine dispute between the child and their parents as to whether treatment should proceed (if the child is not competent)
• If a child is under the protection of a state welfare authority.

[1] 2017 Fam CAFC 258

[2] 2013 (FLC) 93-547

[3] See Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.

[4] At Paragraph 162.