TREATMENT OF TRANSGENDER CHILDREN The law about treatment of transgender children has been uncertain for some time . It has recently been ...
TREATMENT OF TRANSGENDER CHILDREN The law about treatment of transgender children has been uncertain for some time . It has recently been clarified by the full court of the Family Court of Australia in the case of Re: Jamie [2013] FamCAFC 110 . The issues surrounded a child seeking treatment to transition from one gender to another . The court drew a distinction between stage 1 treatment (which involves hormonal treatment, is reversible and is considered to have few, if any, side effects) and stage 2 treatment (which involves additional treatment with oestrogen and may also involve surgical intervention) .
The court held that stage 1 treatment may proceed without court authorisation if the child, parents, and treating medical practitioners agree . However, stage 2 treatment is another matter . Because there is a significant risk of the wrong decision being made as to a child’s capacity to consent to treatment, and the consequences of such a wrong decision would be particularly grave, the court held that: • If a child is not Gillick competent, the court must decide whether or not to authorise stage 2 treatment . • If a child is considered Gillick competent, the child can consent to stage 2 treatment without court authorisation; however, only the court can determine whether the child is Gillick competent . TERMINATION OF PREGNANCY In most Australian states and territories, abortion is not completely legal . There are minor variations from state to state, but in general abortion is legally available if it is necessary to avoid serious danger to the woman’s life or physical or mental health . Performing an abortion in other circumstances can amount to a criminal offence . The Australian Capital Territory, Victoria and Tasmania are the only jurisdictions in Australia where abortion has been decriminalised (i .e . where abortion is not referenced in any criminal laws) . In those states, medical practitioners are permitted to carry out abortions under the following legislation: • Australian Capital Territory:Medical Practitioners (Maternal Health) Amendment Act 2002
• Victoria: Victoria Abortion Law Reform Act 2008 • Tasmania: Reproductive Health (Access to Terminations) Act 2013 In most Australian states and territories, the same laws governing consent and confidentiality will apply in the case of a young woman seeking termination, as with any other form of health care . However, in some states and territories parental consent for women under 18 is required: • Northern Territory – parental consent is required if the young woman is under 16 (section 11, Medical Services Act) • Western Australia – If the young woman is under 16, her parents must be informed and be given the opportunity to be involved in counselling and medical consultations . If the young woman does not wish her parents to be informed, she must apply to the Children’s Court to maintain confidentiality (section 334, Health Act 1911 (WA)) • South Australia – if the young woman is under 16 and can’t talk to her parents, she can still give consent for the procedure; however, two doctors will need to certify that she understands her decision and the procedure,
and that it is in her best interests . The legal onus falls on the medical practitioner who will conduct the abortion to ensure that informed consent is obtained from the woman seeking the termination, regardless of her age . In order to allow the woman to make an informed choice about the decision to terminate the pregnancy, thorough pre-termination counselling and explanation of all possible adverse effects should be provided . A doctor (or other health provider) can refuse to discuss, refer or assist a termination based on his or her own religious or personal beliefs, without risk of anti-discrimination action . However the provider would have a duty to take appropriate action to explain and offer alternatives, including referral to another practitioner . These legal principles are the same regardless of whether a young woman is having a surgical or a medical abortion . MENTAL HEALTH All states and territories have their own mental health legislation governing voluntary and involuntary treatment for patients with mental illnesses . In NSW, the Act specifies the surgical procedures and special medical treatments which require consent and who may provide that consent, including, where relevant, the need to get a court or tribunal’s authorisation for treatment
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