Associate Professor Mandy Shircore Professor Caroline de Costa Patient Decision Making and the diminishing role of the Courts? Review of contemporary medico-legal issues Associate Professor Mandy Shircore Professor Caroline de Costa

Law Playing Catch-Up plainly injurious to the public interest …. degrading to the man himself ….injurious to his wife and to any woman whom he might marry, to say nothing of the way it opens itself to licentiousness

Gender Dysphoria and Abortion Law Medical interventions performed on physically healthy patients Judicial reasoning has been instrumental in shaping the development of the law Uncertainty and inconsistency Decreasing role for the courts and a greater emphasis on patient autonomy and decision making in these important areas

There are three recognized stages of treatment for gender dysphoria. Puberty blocking (suppression) drugs Fully reversible Starts ~ 12- 14 yo Hormonal transition drugs May become irreversible over time Generally starts around 16yo Surgery Irreversible Chest ~ possible before 18 yo Genital - never as a minor

Capacity to consent to medical treatment a child is capable of giving consent to medical treatment in their own right where the child ‘achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’ Gillick Competency

Marion’s Case Could parents consent to sterilization procedure on behalf of child with no capacity? If for NON-THERAPEUTIC purposes NO Irreversible Grave consequences of wrong decision Possible conflict between parents and best interests of child ‘special medical procedure’ If for THERAPEUTIC purposes YES (ie to treat underlying malfunction or disease)

Application of Marion’s Case to Gender Dysphoria RE ALEX (2004) Treatment for NON-THERAPEUTIC reasons Only therapeutic if treating malfunction or disease of organs Possible irreversible and grave consequences Parent and child cannot consent – needs court authorisation

Re Jamie (2013) Treatment of gender dysphoria (psychological) is therapeutic Stage 1 – reversible = no court authorization required Stage 2 has irreversible and possible grave consequences if wrong decision made therefore Gillick competent child can consent BUT Court to determine competency Child not Gillick competent Court authorisation still required

The Problem with Re Jamie Incorrect application of Marion’s Case Marion’s only applies to NON-THERAPEUTIC treatments Once court decided treatment for THERAPUETIC purposes – no further need for court intervention

Re Kelvin (2017) No longer require court authorization for Stage 2 hormonal treatment HOORAY!! But ……. 2 Judges Re Jamie wrong; Once determine treatment is therapeutic, matter for Gillick competent child or parent to consent 3 Judges Re Jamie not wrong, just know more now Therapeutic benefits outweigh consequences

What about stage 3 Treatment???? Uncertainty and Inconsistency still exists Oh No! Re LG (WA) The majority in Re Kelvin did not discuss Stage 3 Bound by Re Jamie, court authorisation required Re Matthew (NSW) Followed minority in Re Kelvin Treatment therapeutic, court authorisation not required

Abortion law in Queensland Criminal Code of Queensland ss 224-226 Section 224. Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years. Section 225. Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years. Section 226. Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.

Criminal Code of Queensland s 282 Section 282 of the Criminal Code attempts to define a lawful abortion and is used as a defence to unlawful abortion. The wording was amended in September 2009 to include medical abortion*: A person is not criminally responsible for performing or providing, in good faith and with reasonable care and skill a surgical operation on or medical treatment of: a person or unborn child for the patient's benefit; or a person or unborn child to preserve the mother's life; if performing the operation or providing the medical treatment is reasonable, having regard to the patient's state at the time and to all circumstances of the case. *Abortion using licensed drugs.

Menhennitt 1969 Victoria Prosecution of Dr Davidson for performing an abortion An abortion would be lawful provided the doctor honestly believed on reasonable grounds that the act was necessary to preserve the woman from a serious danger to her life or her physical or mental health; and (b) in the circumstances were not out of proportion to the danger to be averted.

Mifepristone (RU486)

McMeekin’s views …at 12, Q could not fully comprehend the long term consequences of a decision not to terminate. Accordingly he held she was not Gillick competent to consent to the procedure herself. Following Queensland v B, he also noted ‘a decision to terminate a pregnancy is one procedure where the parent’s consent is …… not sufficient’. This was so despite finding that the evidence of the medical practitioners “was all one way” and the proposed abortion was lawful, as it was being carried out to save Q from both physical and psychological danger (therefore therapeutic).

Conclusion Uncertainties continue to exist for doctors and young people seeking treatment for gender dysphoria and women seeking an abortion Legal system has failed to keep pace with medical advancements leading to unnecessary distress, delay, expense and in many cases greater risk to the patients. On a correct interpretation of Marion’s Case, therapeutic abortions and therapeutic treatment for gender dysphoria should never have been considered ‘special medical procedures’ requiring court authorization. In both areas there should be less role for the courts, greater emphasis on patient decision making