Court permits mother to commence medical treatment for child with mental disorder

by Peter Magee on June 4, 2013

Peter Magee

In the recent decision of the Family Court of Australia in Re Jodie [2013] FamCA 62, the child the subject of the proceedings, “Jodie”, had been diagnosed five years prior with a mental disorder known as “Gender Identity Disorder of childhood and adolescence” (“GID”). This diagnosis entailed that while Jodie was biologically a male, he experienced his gender identity as female. Jodie had been raised as a girl since early in life and was now 12/13 years.

In previous Court proceedings, Jodie’s mother had obtained an order for sole parental responsibility for Jodie, which meant that she had the authority to make decisions on behalf of Jodie in relation to major long term issues. However, the cases to date suggest that medical treatments for GID are “special medical procedures”, which means that the authority to make a decision to commence such treatments falls outside of the scope of normal parental responsibility. Accordingly, Jodie’s mother now sought the approval of the Court to consent on Jodie’s behalf to “Stage 1” medical treatment for GID, which is a reversible treatment that involves suppressing puberty “until the child is older and can make decisions about any treatment that is not reversible”.

The Court acknowledged that following an appeal of the decision of the Family Court of Australia in Re Jamie (2012) 46 Fam LR 439 (“Re Jamie”), it is now uncertain whether a medical treatment for GID in children is a special medical procedure. As the appeal of Re Jamie had not yet been determined, the Court did not make any finding as to whether the Stage 1 medical treatment for GID in children was a “special medical procedure”, such that a parent needs to seek the authority of the Court to consent on behalf of their child to such treatment.

Instead, the Court focused on the two bases on which it had the power to authorise the treatment, whether the treatment was a special medical procedure or not, which are as follows:

  • 1. The Court has the power to make an order as to matters concerning “the welfare of children”, which includes the exercise of parental responsibility. This is known as the ‘welfare power’.
  • 2. The Court has the power to make a parenting order relating to “any aspect of … parental responsibility for a child”.

Further, the Court noted that the paramount consideration for the Court in deciding whether to authorise the treatment, whether the treatment was a medical procedure or not, was the “best interests of the child”. The Court found that the Stage 1 treatment for GID was in the best interests of Jodie, due to the following expert evidence from Jodie’s endocrinologist and psychiatrist:

  • Jodie met the criteria for the diagnosis of GID.
  • If the treatment were not carried out, then there would be a significant risk for Jodie of depression and self-harm.
  • The treatment had possible side effects, but minimal risks.
  • Other drug treatments were available, but had significant side effects. Psychotherapy was a possibility, but there is little evidence that it would produce an change in Jodie’s gender identity.
  • The treatment was necessary for Jodie’s welfare.

Accordingly, the Court authorised Jodie’s mother to consent to Stage 1 treatment for GID. The decision as to whether Jodie’s mother should be authorised to consent to Stage 2 treatment for GID, which was an irreversible treatment, was adjourned for hearing in November 2013.

For specialist advice in relation to cases involving one parent having sole parental responsibility or involving disputed medical treatment of children please contact Armstrong Legal on (02) 9261 4555

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