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
