Recently a doctor in the UK was investigated over complaints made against her regarding the provision of hormonal treatment to her patients, some of whom were 12 years old, with the aim of assisting them to transition genders. The investigators considered whether some of her patients were too young to receive the treatment, which led to some rather widespread discussion about whether children have capacity to consent to treatment which is regarded as irreversible.
Before looking at this issue specifically, we consider the general principles governing consent for medical treatment involving minors.
Child’s ability to consent to treatment
When a person turns 18 years old, they are seen as having “legal capacity” and can, as an incidence of such capacity, independently consent to medical treatment. Those under the age of 18 only have the right to consent to medical treatment where they are deemed competent.
A child is deemed to have capacity to consent to medical treatment if they ‘have a sufficient understand[ing] and intelligence to enable them to understand fully what is proposed’. This has been recognised as ‘Gillick competence’.
A Gillick competent child must understand the impact of the treatment on his or her body and the implications of the decision made. Gillick competency is premised upon the maturity and understanding of the child rather than simply the age of the child. In a sense, Gillick competency is a sliding scale, requiring an evaluation of the child’s understanding of the specific procedure.
Where a child is deemed to be Gillick competent, he or she can consent to medical treatment. However, in the case of ‘special treatment’, such as treatment to transition gender, the question of whether a child is Gillick competent and can consent to irreversible treatment is a matter to be determined by the court.
Power of Parents to Consent to treatment
Generally, in circumstances where a child is not capable of providing valid consent to medical treatment, the child’s parents and/or legal guardians are entitled to provide consent for the child’s treatment, provided it is in the ‘best interests of the child’.
There are special categories of cases where parents and legal guardians do not have power to consent on behalf of a child. These special categories of cases involve complex treatment and procedures where the court’s direction is required. In these types of cases, a court will have jurisdiction to authorise the treatment if it is considered in the child’s best interests.
Examples of where court intervention is required:
The limit of a parent's authority to make decisions on behalf of their child was considered in the case of Re Marion. The case concerned a female who was born with severe disabilities. Her parents applied for an order authorising a sterilisation procedure. The matter was appealed to the High Court over the issue of whether the child’s parents had authority to consent such a procedure to be undertaken. The High Court held it was beyond the scope of the parents’ authority to consent to the procedure, but that the Family Court had jurisdiction to “authorise” such procedures.
The Court held that its authorisation was required where:
- the proposed medical procedure was:- invasive, permanent and irreversible; or
- for non-therapeutic purposes, i.e. not for the purpose of curing a malfunction or disease.
Cases of Gender Dysphoria
Gender Dysphoria is recognised as a marked incongruence between one’s “expressed gender and assigned” gender.
Surgery for gender reassignment is not considered until a patient is at least 18. However, hormone treatment can be commenced before a patient is 18 years old. Such treatment is carried out in conjunction with extensive psychiatric evaluation and assistance.
There are generally two recognised stages of hormonal treatment for children who are in the process of transitioning:
- Stage 1: the suppression of puberty, involving blocking normal hormones. This treatment is reversible.
- Stage 2: the administration of either estrogen or testosterone. This treatment includes parts which are irreversible. Stage 2 treatment may be commenced when a person is 16.
The Full Family Court is currently considering these issues in the case of Re Kelvin. Whether the Full Family Court continues to follow the principles set out in Re Jamie, or instead adopts a different approach, is awaited with great interest.
Position in Australia
The position in Australia regarding consent for such treatment is complex.
In the case of Re Alex, the Family Court of Australia considered surgical gender reassignment of a 14 year old who wanted to begin the process of transitioning from female to male. Alex sought the administration of hormonal drugs, oestrogen and progestogen until the age of 16 (Stage 1) and then administration of luteinizing hormone releasing hormone analogue and testosterone after he turned 16 (Stage 2). The Court held that court authorisation was required for both Stage 1 and Stage 2 of treatment.
However, the more recent decision of Re Jamie has moved slightly from that position. In Re Jamie the parents of a 10 year old child, Jamie, who was born male but identified as a female, petitioned the court for orders to begin Stage 1 and Stage 2 treatment.
Re Jamie provided guidance concerning the authority of courts in gender dysphoria cases:
- Stage 1 treatment for Gender Dysphoria is not a medical procedure which requires court authorisation as it is therapeutic in nature and fully reversible. Stage 1 treatment fell within the ‘ambit of parental responsibility’.
- Stage 2 treatment requires court confirmation of Gillick capacity or court authorisation as it contains irreversible aspects.
Ultimately, in these types of cases, it is the court’s responsibility to assess whether a child is “Gillick competent” even if the child’s parents and treating doctors agree. If the court determines that a child is Gillick competent, then court authorisation is not required for Stage 2 treatment. If on the other hand, a court finds that a child is not Gillick competent, it will make a decision regarding whether the treatment is in the best interests of the child. Medical experts and individuals involved in the child’s life, such as parents, assist a court in this process.
Takeaway for medical professionals
Medical professionals and health care professions who are treating children who suffer from Gender Dysphoria and wish to commence the process of transitioning need to ensure they are aware of the relevant legal processes.
The doctor in the UK who is being investigated over complaints regarding her providing hormonal treatment to children is another reminder of the public and private interests which make this area of practice a potential legal and ethical minefield.