Central Queensland Hospital v Q: Access to abortion in Queensland and children’s ability to consent to medical treatment

 

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The decision in Central Queensland Hospital and Health Service v Q raises interesting issues in relation to the criminalization of abortion in Queensland and children’s ability to consent to medical treatment.

Q was a pregnant 12 year old girl who was referred to medical staff at the Central Queensland Hospital after asking her GP for an abortion. Q was finding the pregnancy “very stressful emotionally” and had run away from home, self-harmed, and attempted suicide on two occasions.

The medical specialists and counselors that had met with Q supported her decision to terminate the pregnancy, as did Q’s parents. There was evidence that continuing the pregnancy would pose significant risks to Q’s physical and mental health.

Central Queensland Hospital sought orders from the Court authorizing the termination of Q’s pregnancy. These were granted by Justice McMeekin in the Queensland Supreme Court on the 20th of April, followed by the judge’s reasons a week later.

The parens patriae jurisdiction

The Supreme Court’s parens patriae jurisdiction formed the basis for the Court’s intervention. This jurisdiction grants Supreme Courts wide powers in relation to the welfare of children, with the best interests of the child being the Court’s primary consideration.

Could Q consent to the treatment?

As I discuss in an earlier post, a child can consent to medical procedures when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed,” i.e., is Gillick competent (following Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112).

Generally speaking, parents can consent to treatment on children’s behalf when they are not Gillick competent. However, there are some forms of treatment that fall outside the scope of parental consent, known as “special medical treatment.”

Justice McMeekin held that terminations are one such form of treatment (following State of Queensland v B [2008] QSC 231). Accordingly, court authorization for the treatment would be needed if Q herself was not competent to consent to the treatment.

Justice McMeekin found that Q had a good understanding of the risks involved in the procedure, but doubted that she had the maturity to fully appreciate the long-term consequences of a decision to continue with the pregnancy. Accordingly, she was unable to make a fully informed decision and was not competent to consent to the termination. As such, it was appropriate to invoke the Court’s parens patriae jurisdiction.

Could the treatment be performed lawfully?

Queensland’s Criminal Code criminalizes the termination a pregnancy, unless authorized or justified by law. Section 282 of the Code provides that a person is not criminally responsible for performing a termination so long as it is for the patient’s benefit or to preserve the mother’s life, and is reasonable in the circumstances.

Section 286 of the Code also provides that a “person who has care of a child” must provide the necessaries of life for the child, and take reasonable precautions to prevent danger to a child’s health, including their mental health. The definition of “a person who has care of a child” can include hospitals and doctors who care for children.

In determining whether the termination was lawful, Justice McMeekin followed the approach of the Victorian Supreme Court in R v Davidson [1969] VR 667, which held that an abortion would be lawful where it was believed on reasonable grounds that the abortion was necessary to prevent serious danger to the patient’s life or health, and it was not out of proportion to the danger to be averted.

Justice McMeekin held that it was clearly in Q’s best interests for termination of the pregnancy to proceed, as it was necessary in order to prevent serious danger to Q’s mental and physical health. Further, the proposed response was not out of proportion to the danger to Q’s health. Accordingly, the termination would not be considered unlawful, and it could be justified under sections 282 and 286 of the Code.

Justice McMeekin declared that: the termination of the pregnancy through the administration of drugs was lawful; Q should be permitted to undergo the termination; and the hospital’s staff be permitted to perform it. If the drugs failed to effect a termination within five days, Q’s pregnancy could be terminated using a surgical procedure.

What are the implications of the decision for access to abortion services in Queensland?

The criminalization of abortion in Queensland creates a barrier to women’s access to reproductive services. Q was forced to wait weeks for court authorization for her termination. In 2010 a young Cairns couple faced criminal charges for importing the abortion drug Misoprostol and inducing a miscarriage at home. They were ultimately found not guilty, but following that case, many doctors in Queensland stopped performing abortions.

Lucy Clark in The Guardian suggests that similar fears and uncertainties may be behind Q’s doctors’ decision to seek court authorization for her treatment. She may be right in that respect, but it must be kept in mind that the Queensland Supreme Court characterizes abortion as a form of “special medical treatment” that parents cannot consent to. Accordingly, court authorization would still be needed to perform a termination on a child that was not Gillick competent, regardless of abortion’s status under criminal law.

Kerridge, Lowe and Stewart criticize the characterization of abortion as a form of special medical treatment, arguing that it should fall within the scope of parental consent for children’s medical treatment. A change in the common law would be required in order for a termination to be performed on a non-Gillick competent child without court authorization (although the courts could still intervene under their parens patriae jurisdiction).

Nevertheless, the decriminalization of abortion in Queensland is still an important step in enhancing respect for women’s reproductive rights, and in ensuring access to abortion services.

Children with gender dysphoria and consent to treatment: time for a change in the law?

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Gender dysphoria is a condition where a person feels that their biological sex is deeply incongruent with their perceived gender, causing him or her significant distress. Stage 1 of treatment involves the administration of puberty-suppressant hormones. Stage 2 involves the administration of cross-sex hormones that promote the development of physical characteristics of the opposite sex.

Treatment for gender dysphoria has become an important topic within the law on consent to medical treatment, because the Family Court receives an increasing number of applications to authorize treatment for children with gender dysphoria. If you’re not familiar with this area, some background on children’s ability to consent to medical treatment is helpful before discussing these cases.

Consent to medical treatment: the role of parents and children

Marion’s Case remains the foundational case on minors’ ability to consent to medical treatment. This case dealt with the sterilization of a 16 year old woman with an intellectual disability, who was incapable of consenting to treatment. In this case the High Court held that a child can consent to medical treatment when he or she “achieves a sufficient understanding of and intelligence to enable him or her to understand fully what is proposed” (following the English case of Gillick v West Norfolk and Wisbech Area Health Authority).

If a child is not “Gillick competent,” then her parents can consent to medical treatment on her behalf. However, the High Court in Marion’s Case held that there are some forms of treatment (known as “special treatment”) that fall outside of parental authority and require court authorization.

Marion’s parents could not consent to her sterilization because it was “non-therapeutic” treatment, and because the procedure was irreversible, there was a significant risk of making the wrong decision (either about the child’s capacity to consent or as to what was in her best interests), and the consequences of a wrong decision were particularly grave.

Since Marion’s Case the courts have extended the category of “special treatment” to include other procedures. In doing so, they have categorized these procedures as “non-therapeutic” and applied the list of factors relied upon by the High Court in Marion’s Case.

Consent to treatment for childhood gender dysphoria

The Family Court originally held that treatment for gender dysphoria was a form of special treatment, and required court authorization for both stage 1 and stage 2 treatment. However, Re Jamie modified this position. In this case the court held that treatment for gender dysphoria was therapeutic and that parents could consent to stage 1 treatment. Children could consent to stage 2 if they were Gillick competent, but if they were not, then court authorization remained appropriate.

Relying on Marion’s Case, the Family Court also held that the court must determine whether the child is Gillick competent, as stage 2 treatment was irreversible, there was a significant risk of making the wrong decision, and the consequences of a wrong decision were particularly grave.

Re Martin: problems with the current position

The Family Court considered a case on treatment for gender dysphoria just before Christmas, Re Martin. The case did not change the Family Court’s position on treatment for gender dysphoria (being the judgment of a single judge), but Justice Bennett (who decided the case), offered an insightful critique of Re Jamie.

Martin (aged 16) was born a girl, but identified as male from a very young age, and had been diagnosed with gender dysphoria. Martin lived as a boy, but he experienced worsening depression as he approached puberty. Martin’s parents and treating physicians supported cross-sex hormone therapy and applied to the court for authorization.

In her Honour’s decision, Justice Bennett argued that the Family Court’s reliance on Marion’s Case in Re Jamie was contradictory and inconsistent. One of the grounds for this argument was as follows:

The Full Court in Re Jamie accepted that gender dysphoria is a recognized psychological condition and that treatment is “therapeutic.” However, the court decided that it still needed to authorize stage 2 treatment if the child was not Gillick competent (relying on the factors listed in Marion’s Case).

According to Marion’s Case, parents can consent to therapeutic treatment even if it has grave and permanent effects. However, the approach taken by the Family Court suggests that therapeutic treatment can still be classified as special treatment based on an assessment of the factors set out in Marion’s Case. Accordingly, court authorization will be required for some forms of therapeutic treatment.

Re Jamie seems like a case of wanting to have your cake and eat it too. The court respects children’s rights by allowing Gillick competent children to consent to stage 2 treatment. But the court seems uneasy about the idea of stage 2 treatment taking place without any form of court oversight, hence it retains a role in either confirming that a child is Gillick competent or in authorizing treatment where the child cannot consent on her own behalf.

This appears to strike a good balance between respecting children’s autonomy and recognizing their need for protection. But the court’s ruling is a significant departure from Marion’s Case, and it blurs the distinction between therapeutic and non-therapeutic treatment (although this distinction has always been problematic).

Time for a change in the law?

As pointed out by Justice Bennett in Re Martin, there are good practical reasons for not requiring court authorization of treatment for gender dysphoria. In uncontroversial cases (which they almost always are), the court will simply follow the doctors’ advice, and it is difficult to see what advantages are added by court involvement.

Court proceedings have significant emotional and financial costs for children and their parents. Some children may forego treatment because their families cannot afford to make a court application. On the other hand, this is a complex area of medical practice, and stage 2 treatment can have profound and irreversible effects on children’s social and sexual identity.

Justice Bennett concluded Re Martin by finding that Martin was Gillick competent, but her Honour also invited the court (or parliament) to change the law. This seems sorely needed – both to clarify the position on “special treatment,” and to facilitate access to treatment for children for gender dysphoria. On balance, the costs of court authorization outweigh any possible benefits, suggesting that court oversight in undisputed cases is not in the best interests of children with gender dysphoria.