Gender CARE beyond the courts: an alternative framework for resolving disputes over gender health care for children and adolescents

Gender health care for transgender and gender diverse children and adolescents in Australia continues to be scrutinised in an increasingly polarised socio-political climate. Courts have labelled this area of health care "innovative", "experimental" and "unique",1 with treatment options often raising moral, ethical, human rights and clinical dilemmas. These problems include respect for children's evolving autonomy, the role of family in supporting health care outcomes, and the influence of cisnormative assumptions and socio-cultural expectations of gender. The Australian legal framework regulating minors' consent to medical treatment comprises "legislation sitting alongside the common law, including a patchwork of decisions" of the courts at trial and appellate levels.3 Some jurisdictions have passed legislation to recognise children's capacity to consent to medical decision making below the age of majority (18 years). For instance, South Australian legislation provides that a person aged 16 years or over may make medical treatment decisions "as validly and effectively as an adult".4 In jurisdictions without legislation prescribing whether a child can consent to medical treatment, the common law principle of Gillick competence applies. This principle provides that a minor is capable of consenting to medical treatment when they achieve "a sufficient understanding and intelligence to enable [them] to understand fully what is proposed".5 Without a fixed age attached to the Gillick competence test, considerable discretion and burden are imposed on a child's treating clinicians in making this assessment.6 The decision of the Family Court of Australia in Re Imogen [No 6]7 has reignited debate about whether the courts should be involved in resolving disputes where a child or adolescent is Gillick competent. Among the various concerns raised about the implications of this decision,8 prominent is its erosion of the Gillick competence principle. The Family Court's conclusion that Gillick competence is not determinative in cases of dispute stigmatises gender-affirming health care, undermines respect for the decision-making autonomy of Gillick competent minors, and may endanger their right to access other kinds of health care.9 There is limited empirical evidence in Australia of the impacts of family court involvement in gender health care for children and adolescents.10 Kelly's qualitative study involving 12 parents from across Australia who were either preparing for, actively engaged in, or had recently completed, the Family Court process found that it imposed an "unnecessary and harmful burden" on children and their families.11 Judges have conceded the costs, stress and delays of court proceedings "when doctors and parents are in agreement".12 Ignoring these concerns, there has been a recent call to reinstate the family courts in gender care decision making, based on the perception that there is insufficient information available about alternatives to gender-affirming medical treatment.13 Yet even without court involvement, transgender and gender diverse children and young people experience challenges in accessing gender health care, including obtaining clinical support in an affordable and timely manner.14 The English Court of Appeal recently highlighted the exposure of clinicians to legal action in individual cases involving gender-affirming health care interventions, stressing the need to take "great care" in prescribing treatment "in the light of evolving research and understanding of the implications and long-term consequences".15 In Australia, the family courts have been reluctant to engage meaningfully with the clinical, moral, ethical and human rights dimensions of disputes over gender health care. We believe that greater clarity and transparency from courts about their role would be valuable for clinicians, to offer guidance about the nature and form of information that should be provided to obtain valid consent and to discharge the clinician's duty to inform, and to enhance a Gillick competent adolescent's capacity to use or weigh that information. Our proposed alternative dispute resolution framework is a conceptual model, intended to stimulate debate about how disputes may be resolved outside the court process. A more detailed evaluation of how this model could be implemented in practice is beyond the scope of this article. If mediation is unsuccessful, the fourth stage is resolution by an independent, multidisciplinary specialist panel. Panel membership may include one or more individuals with lived experience, as well as multidisciplinary specialists including a paediatrician, endocrinologist, psychiatrist, psychologist or counsellor, and lawyer. The focus of the panel would be to explore viable options for accessing treatment, as opposed to re-evaluating diagnosis or treatment. We do not envisage the panel operating as a decision-making body established by legislation. Rather, the panel would make recommendations about viable treatment options, explaining the benefits and risks of each based on current evidence and the individual values of key stakeholders. A specialist panel that is independent of the treating hospital or clinic is more likely to foster trust and confidence among all stakeholders through independent medical assessment.19 Drawing on therapeutic jurisprudence research, the aim of a solution-focused panel would be to promote the wellbeing of all relevant parties,20 by addressing disagreements in a "respectful, considered, ethically informed, and compassionate" manner.21 Ideally, this independent, multidisciplinary specialist panel would operate under a national framework, with safeguards to ensure consistency, independence and accountability through compliance with national guidelines that incorporate the CARE principles below. We acknowledge that there are limitations to a national framework, including less transparency than a court or tribunal, creating potential for bias if reporting and auditing are not conducted properly. There would also be less precedent to guide and protect clinicians from future litigation, although the aim of the process overall is to minimise the need for court involvement. However, the benefits of national guidelines in this context include that they are easier to implement than legislation, given the constitutional limitations in Australia, and they would reduce regulatory duplication. There is also greater scope for flexibility in design and less likelihood that treatment will become politicised. Further, a national framework would promote a consistent ethical approach based on current evidence. It would also improve national data collection to create a stronger evidence base for gender-affirming treatment. We have proposed an alternative framework for resolving disputes over gender care for Gillick competent children and adolescents, underpinned by the principles of Communication, Autonomy, Relationships and Expertise (CARE). We consider that this framework would better promote the rights, wellbeing and autonomy of Gillick competent children and adolescents than court involvement in the medical treatment process. It is unlikely that such a framework would be legislated in Australia, given the absence of legislative intervention in this area of health care to date. Rather, the framework might feature in clinical treatment guidelines. The current review of the Australian Standards may be an opportune time to incorporate a staged dispute resolution process. Open access publishing facilitated by Southern Cross University, as part of the Wiley - Southern Cross University agreement via the Council of Australian University Librarians. No relevant disclosures. Not commissioned; externally peer reviewed.