Parental consent and the treatment of transgender youth: the impact of Re Imogen

Recent legal changes are negatively affecting provision of timely medical care to Australian transgender youth

The number of transgender and gender diverse (henceforth, trans) youth seeking medical treatment has risen sharply over the past two decades in Australia and overseas.1,2 Unique legal requirements for consent to this treatment in Australia have developed through Family Court case law since 2004. Until recently, it was necessary for a young person seeking pubertal suppression or gender‐affirming hormone treatment to secure Family Court approval before treatment could commence, even in circumstances where both parents and the young person’s treating doctors supported treatment and considered it to be in their best interest, and the young person was deemed Gillick competent, which is achieved when a young person has “a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.3 The requirement for court approval was removed for puberty suppression in 2013 by Re Jamie,4 but the restrictions on gender‐affirming hormone treatment remained until the Full Family Court decision of Re Kelvin in 2017.5

In Re Kelvin, it was held that court approval was no longer needed for treatment to proceed. The decision provided much needed clarity, while also removing a costly, slow and psychologically harmful burden for trans youth and medical practitioners.6 Following the decision, Australian standards of care and treatment guidelines for trans and gender diverse children and adolescents were published7 and endorsed by the Australian Professional Association for Trans Health, the leading national body for professionals involved in the health, rights and wellbeing of trans, gender diverse and non‐binary people. The guidelines, which were intended to reflect the decision in Re Kelvin, stated that while obtaining consent from parents or guardians before gender‐affirming hormone treatment is ideal, parental consent is not required when the adolescent is considered to be competent to provide informed consent.7 In practice, this meant that, while consent of both parents was typically secured, where one parent was uninvolved in a competent child’s life or was passively unsupportive, consent was not actively pursued. Thus, it was not uncommon for a doctor to prescribe hormone treatment to a Gillick competent trans young person without the express consent of a parent or guardian, and it was presumed that this procedure complied with the law as laid down in Re Kelvin.

However, a recent Family Court decision in the case of Re Imogen8 has brought into question the clarity presumed to be provided by Re Kelvin. Two key changes to the law, and thus medical practice, flow from Re Imogen. First, it was held that the statement in the guidelines that parental consent for a Gillick competent child was ideal but not necessary was incorrect; consequently, since Re Imogen, medical practitioners cannot lawfully administer either puberty suppression or gender‐affirming hormone treatment without obtaining consent from both parents, even when the young person is assessed by doctors as Gillick competent. Second, it was held that a court application is required when there is any type of “controversy” between parents, again even if a positive assessment of competency has been made. There might be many reasons why people do not reach the legally required unanimity of views. In our clinical experience, families have diverse concerns. Some parents express worry about long term risks of hormone treatment or potential impact on reproductive function.9 Others struggle with the very idea that their child is trans or capable of making a decision of this nature.10 Evident in our practice, a concerning minority of parents have opposed care provision in the context of having been perpetrators of family violence, with refusal to consent being based not on concerns around the interests of the child, but as a mechanism to further harm the other parent and the child. Although parents have always been able to take a matter to the Family Court when a decision has been made by the child without consultation, Re Imogen indicates that where there is parental disagreement, or the consent from one parent is not obtainable, such a course of action is now required, even when the child is deemed competent. Although the decision in Re Imogen is not binding on other judges, and the reasoning may be revisited by the Full Family Court in a subsequent case, it serves as strong persuasive authority.

Legal implications of Re Imogen

Both aspects of the decision in Re Imogen erode the concept of Gillick competency. By requiring parental consent for every stage of treatment, and court approval in any situation of parental disagreement, even where the adolescent is deemed competent, the decision severely diminishes the decision‐making capacity of competent trans young people.11 The principle of Gillick competency emerged from the United Kingdom case of Gillick v West Norfolk and Wisbech Area Health Authority,3 and was adopted in Australian law by the High Court in Marion’s case,12 in which it was stated that where a child could “[achieve] a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”, a doctor was entitled to provide that advice and treatment in the absence of parental consent. In other words, “a child’s right to decide is only limited by parental authority until such time as the child attains competency”;13 the House of Lords in Gillick placed no limit on the nature of the matter that a child might be competent to decide.3 Thus, although Gillick concerned contraceptive advice and treatment, the decision was phrased in such terms that the conclusions regarding Gillick competency were of general application to all forms of medical treatment. Nor did the House of Lords declare that the principle was only applicable in the absence of parental controversy. In fact, the very purpose of the principle is to preserve the decision‐making capacity of a mature minor in situations where parents may be unsupportive of the young person’s medical decision making. The decision in Re Imogen, however, suggests that the decision‐making capacity of trans youth is a special case under Australian law.

The decision in Re Imogen is arguably part of a larger and relatively recent international trend against adolescent decision‐making autonomy in the field of trans health.14 For example, in December 2020, the High Court of England and Wales considered the application of Gillick competency in the context of trans youth consenting to puberty suppression. In contrast to years of evidenced‐informed practice, the High Court of England and Wales in Bell and Mrs A v Tavistock and Portman NHS Trust15 held that “there will be enormous difficulties in a child under 16 understanding and weighing up” the long term risks and consequences of the administration of puberty suppression and thus making a competent informed decision about this treatment. This decision has since been overturned, but leave to appeal has been sought. Similarly, legislation restricting access to hormone treatment for trans youth in the United States has now been passed in Arkansas and proposed in over a dozen other states, with many of the bills making it illegal for physicians to administer treatment.16 Like Re Imogen, these international developments treat medical decision making by trans youth as a special category of decision making that requires higher scrutiny.

Clinical implications of Re Imogen

Access to timely gender‐affirming care is associated with improved mental health outcomes and overall wellbeing.17,18 The erosion of the concept of Gillick competency diminishes the personal autonomy and agency of trans youth and directly affects their ability to access this care.

At the same time, parental support is critical for the wellbeing of trans adolescents,19 and the decision in Re Imogen may add an additional layer of distress to young people who are not supported in their gender identity by their family members or who are separated from a parent due to other circumstances (eg, family violence, parental estrangement). These are arguably the most vulnerable trans young people within our society and yet recent legal developments only further increase harm. This may occur by forcing a young person to re‐engage with a parent who has a history of perpetrating family violence, to disclose confidential personal information to an estranged or uninvolved parent, or to enforce legal barriers (including costs) when consent cannot be established. In this way, the requirement for consent from both parents may not only deny trans young people timely, accessible health care but could also provide the opportunity for parents who are already a negative influence to engage in further interference and exacerbate past experiences of trauma.

The decision in Re Imogen also has serious resource implications for doctors. Obtaining positive consent from both parents, even when the young person is competent, places a significant administrative burden on medical professionals. For example, in some cases, doctors will need to establish contact with parents with no known contact details, prepare written legal reports, or appear as witnesses in court to advocate for their patients.

Taken together, the above concerns were summarised in a statement released by the Australian Professional Association for Trans Health,20 which stated that the decision in Re Imogen “will cause distress across the trans community”, resulting in increased cost, “uncertainty and delays to medically necessary treatment”, and place a significant burden on medical practitioners “by requiring additional, often complex, processes”.

Ethical considerations

The difference in approach to medical decision making for trans young people when compared with other young people raises ethical concerns around unjust discrimination. To restrict the decision‐making authority of one group of patients without justification is discriminatory. When this discrimination affects access to necessary medical care, it becomes unethical and threatens the fundamental human rights of a child.21,22,23

A second ethical problem raised by Re Imogen is that it violates the principles of beneficence and non‐maleficence. While family participation is usually beneficial, it cannot be assumed to be so in all cases. For example, a recent study showed that commencing treatment without parental support was, for some patients and families, a positive experience.24 Specifically, in some cases, commencing treatment helped previously unsupportive parents come to terms with their child’s gender identity; in other cases, parents benefited from being relieved of the burden of decision making, because they felt less responsibility for the outcomes. Moreover, having a legal requirement for parental consent is blind to the nuances of specific situations and is likely to expose some adolescents to preventable suffering.

Finally, we highlight that a lack of family support should be regarded as a vulnerability and not a means to impede medical care. Trans adolescents need a supportive family and, if this need is unmet, it becomes necessary to determine how an adolescent can be helped in the safest, optimal way. Delegating decision making to the courts, deeming trans adolescents incompetent, or refusing or delaying treatment in the hope that parents will “come round” do not address the moral challenges that must be faced in such cases.25 Instead, clinicians should have sufficient discretion to assess the risks and benefits of different treatment options and, where indicated, to initiate treatment without exposing adolescents to clinically unnecessary and harmful delay. Legislative reform that reflects the Gillick principle, and thus provides trans youth with decision‐making autonomy, would provide certainty for parents, clinicians and trans youth. Alternatively, the Full Family Court could revisit the issues raised by Re Imogen. However, this would require a family to pursue the costly and time‐consuming appeal process.

Conclusion

Improving the health and wellbeing of trans youth requires respect for their right to autonomy, agency and access to evidence‐informed health care. Recent court decisions, both internationally and in Australia, erode the concept of Gillick competence. In doing so, these decisions may inflict additional harms on an already highly vulnerable population. Advocacy for legislative reform is therefore needed to protect the decision‐making autonomy of trans youth.