Special Medical Procedures

Special Medical Procedures for Children

There are certain special medical procedures for children which fall outside parental responsibility to consent to the treatment on behalf of a child and require determination by the Court. Medical procedures which have been classified by the court as special medical procedures include treatment for Gender Identity Dysphoria and Disorders of Sexual Development and have also included surgical gender reassignment and heart surgery.

The landmark High Court case decision regarding special medical procedures is Marion’s case which established that the court needs to approve a special medical procedure or “non-therapeutic” treatment even if the parents agree where there is:

  1. a significant risk of the wrong decision being made; and
  2. where the consequences of such a wrong decision are particularly grave.

The court will then determine whether or not it is in the best interests of the child to undergo a particular medical procedure.

The following persons may make a special medical procedure application in relation to a child:

  • a parent;
  • a person who has a parenting order in relation to the child;
  • the child;
  • an independent children’s lawyer; or
  • any person concerned with the care, welfare and development of the child.

If you are unsure whether the treatment being sought on behalf of a child is classified as a special medical procedure then we recommend seeking specialist legal advice.

Gender Identity Dysphoria

The expression Gender Identity Dysphoria refers to people who experience sufficient discomfort (dysphoria) about the sex or gender they were assigned at birth. Such people include transsexuals and transgender individuals.

The treatment for GID consists of three stages, namely:

  1. Stage 1 which consists of the administration of puberty suppressant hormones and the effects are reversible; and
  2. Stage 2 which consists of the administration of either oestrogen or testosterone and the effects are irreversible without surgical intervention.
  3. Stage 3 which consists of surgical interventions.

The leading case dealing with childhood GID was Re Jamie delivered on 31 July 2013. In Re Jamie it was held that families seeking stage 1 treatment for a child would not require court authorisation as the authorisation falls within the “wide ambit of parental responsibility”. This is provided that the parents, treating medical practitioners and the child agree and no other special circumstances exist. Stage 2 treatment of GID was found to be a special medical procedure which required court authorisation due to the benefits of the treatment not exceeding the risks associated with irreversibility.

However, Re Kelvin, being a stated case before the Full Court of the Family Court on 30 November 2017 clarified issues not specially addressed by Re Jamie. Direction was given by the justices as to whether Re Jamie was correct in requiring the court’s authorisation for stage 2 treatment pursuant to s 67ZC of the Family Law Act.

In relation to stage 2 treatment, it was held in Re Kelvin that if a child is considered “Gillick competent” by their medical practitioners, that is, they fully understand and appreciate the treatment that is being proposed, they can consent to the treatment without the need to go to court. Alternatively, stage 2 treatment can be available to non-Gillick competent children with the consent of their parents and medical practitioner’s agreement.

Stage 3 treatment, while not directly addressed in Re Kelvin has been clarified to an extent. The minority judgement has stated that there is no reason in principle to distinguish between the approaches to be taken to the forms of therapeutic treatment of GID. Therefore, on those grounds, a Gillick competent child should be able to receive Stage 3 treatment without court authorisation.

Disorders of Sexual Development (DSD) or Intersex conditions

There are a variety of intersex conditions in which a child is born with a biological variation of sexual anatomy between the two sexes, male and female. For example, a common DSD known as “CAH” refers to a person with female chromosomes having genitals that appear more masculine. Often the treatment being sought involves gender reassignment or sterilisation, which may mean that Court authorisation is required before treatment can commence.

It is not possible to list all DSD conditions that require Court authorisation as it will largely depend on the medical diagnosis. Where the treatment for the DSD however is for “non-therapeutic” purposes as defined in Re Marion’s case then it will likely classify as a special medical procedure requiring Court authorisation. If on the other hand, there is a genuine medical emergency or medical necessity for treatment then parents may be able to consent to the treatment.

Based on Australian reported case law there is an “unclear dividing line” as to which DSD cases require Court authorisation and those which may not. Where parents or the treating medical practitioners are ambivalent and unsure about whether the decision falls within the ambit of parental responsibility then it is prudent to seek specialist legal advice.

Medical procedures for intellectually disabled minors

Section 67ZC of the Family Law Act 1975 provides the Court with a broad welfare jurisdiction to make orders relating to children including intellectually disabled minors. The Court must have regard to the best interests of the child as the paramount consideration when making these orders.

There has been a growing number of family law cases in Australia involving the sterilisation of young women with intellectual disabilities, including the landmark Australian High Court decision of Marion’s case which involved the sterilisation of an intellectually disabled girl.

In such cases there is no question whether a child can consent to medical treatment as the child is not competent to do so. Therefore the question becomes whether the procedure should be characterised as a special medical procedure requiring court authorisation. If the answer is “yes”, then an Application must be made to the Federal Circuit and Family Court of Australia.

We recommend seeking legal advice if you are unsure whether the treatment being sought on behalf of an intellectually disabled child may constitute a special medical procedure.