Where do we go from here? The Issues Paper will form the basis of community consultations that we will now conduct and of the submissions that it invites. The consultations and submissions will feed directly into the final report that we make to the Attorney-General. That report will contain our recommendations for the reform of the law in this area. It is then up to the government to decide whether or not it will give effect to our recommendations in legislation.

We ask that submissions be received by the end August, in the hope that we can present our final report by the end of this year.

The reference that we have received in this matter is a broad and general one with some specific points identified. The Issues Paper responds in detail both to the generality of the reference and the specific points mentioned.

2. A topical issue

The issue of the consent of young people to medical treatment is controversial. I take two recent examples that have given rise to extensive media coverage in Australia and England within the last month or so.

First, the English example, which I will call the “Nottinghamshire case”,² because it involves a 14-year old schoolgirl in Nottinghamshire who falls pregnant and, after talking about the pregnancy with a school health worker, decides to have an abortion. She goes to a hospital where she takes the first two pills that are part of a chemical abortion. After returning home, she discusses the matter with her mother (who is opposed to the abortion). The daughter changes her mind and does not continue with the treatment for a chemical abortion. But it is too late. The pills have the effect of the complete treatment and the foetus is aborted. The young woman is upset. The mother complains that “her rights as a parent” have been violated. Do the hospital, the doctor or the school incur any legal liability?

Second, the Australian example. In a case last month, called Re Alex,³ the Family Court was asked to authorise the administration of certain hormonal treatments to a 13 year old girl diagnosed as having gender identity dysphoria, which resulted in a profound and longstanding wish to undergo a transition to become male in appearance. Gender identity dysphoria is a recognized clinical condition in which a person’s physical sex does not match their self-perception. In this case, Alex wanted the treatment and her legal guardian (a government department) consented to it. It was accepted, however, that this was not enough. Because the treatment was invasive, permanent and irreversible and not for the immediate purpose of curing a malfunction or disease, the law requires that a court authorize it.⁴ In a full and lengthy judgment, Chief Justice Nicholson authorized the administration of hormonal therapies (including the contraceptive pill) that were the first, though not irreversible, stage of sex-change procedures. The Chief Justice also authorized the administration of testosterone when Alex reached about 16 years of age. This would have certain irreversible effects (such as a deepening of Alex’s voice), although those effects would not be fatal to any subsequent decision of Alex to be woman. Of course, once Alex reached the age of majority, she could consent to a full sex-change operation if that was then her desire.

3. A difficult legal question

These two cases no doubt raise difficult moral issues. It is not so obvious that they should raise difficult legal issues. But they do. And the reason for this is essentially that the law is a patchwork whose diverse pieces have not been specifically designed to fit together.

What I mean by this is that the law in this area is derived from two sources: the common law (the law made by judges) and statute (or the law made by Parliament). As a very broad generalization, statute usually comes after common law and is designed to clarify or reform the common law. But, in this area, the crucial development was sometimes the other way around: statute came before the common law was clearly established. Arguably, this is the wrong way around and has created some of the confusion that currently exists in the law. And, a number of statutes have, arguably, compounded that confusion by failing to have regard to the overall coherence of this branch of the law.

Let me explain by reference to our first example: that of the 14 year old who requests an abortion.

At common law, the position is this. Because the young woman is under 18 years of age (and therefore a minor) she only has capacity to consent to the abortion if she has a “sufficient understanding and intelligence to enable … her to understand fully what is proposed”.⁵ This is the common law test of competency, known as the test of Gillick-competency, after the English case that proposed the test.⁶ It means that the common law test of capacity to consent to medical treatment is not based on a fixed age (such as 14, 16 or 18), but on the intellectual maturity of a young individual, recognizing that this may differ in relation to various types of treatment. The justification for the test is said to be that it reflects experience and psychology.⁷

Applying the test to the Nottinghamshire case, the mother’s opposition to the abortion is relevant only if the young woman is not Gillick-competent – that is, if she is not judged of sufficient maturity to understand fully the treatment proposed. In this case, the mother must consent to the treatment. On the other hand, if the young woman is Gillick-competent, it would seem to follow that the mother’s opposition is irrelevant, any parental rights in this respect having come to an end.⁸ In the Nottinghamshire case, the professionals involved had judged the young woman to be Gillick-competent.

Two statutory provisions complicate, or may complicate, this simple statement of the law.

The first is s 49(1) of the Minors (Property and Contracts) Act 1970 (NSW). Essentially, this gives a defence to an action in assault or battery by a young person where the medical practitioner has relied on the consent to the treatment in question of a parent or guardian of a young person aged less than 16 years. What is the relevance of this section to our case?

Well, if our 14 year old girl is not Gillick-competent, it adds nothing to the common law, where her mother would, in any event, have to consent. But if she is Gillick-competent, does it mean that the mother can veto the schoolgirl’s consent to the treatment? The likely answer is “no”.⁹ Why? Because the section allows the parent to consent, not to withhold or refuse consent. So the mother cannot override or veto the consent of our 14 year old. If this is right, it means that the professionals have not incurred any legal liability in the Nottinghamshire case.

But it also means something else. It means that there is a distinction between consent and refusal of consent. And, paradoxically, this distinction has the potential to bolster parental authority in this sense. It means that a parent’s consent to the medical treatment of a Gillick-competent young person under 16 can override that young person’s refusal of consent (as opposed to the young person’s consent – which was in issue in the Nottinghamshire case). For example, a parent who is not a Jehovah Witness can override the refusal of their child (who is a Jehovah Witness) to undergo medical treatment involving a blood transfusion.

Now, obviously, this puts a premium on the distinction between consent and refusal of consent, with the result that the law supports the following two propositions:

• A parent cannot override the consent of a young person under 16 to medical treatment; but
• A parent can consent to the medical treatment of a young person under 16 who has refused consent.

I turn now to our second example, the case of Re Alex and gender identity dysphoria. Bear in mind that Alex was 13 years of age. At common law, applying the general rule, she would be able to consent to the treatment proposed if she were Gillick-competent, the consent of her parents or guardians being generally irrelevant. But the court found that Alex was not Gillick-competent.¹⁰ So, applying the general rule, the consent of Alex’s parents or guardians to the treatment would be necessary.

But here we meet two complications. The first is that the common law is not as simple as I have so far suggested that it is. Apart from the general rule applicable to consent, the common law also restricts the ability of young people or their parents to consent to treatments that are invasive, permanent and irreversible, and not for the immediate purpose of curing a malfunction or disease. In such cases, the consent of a court is necessary. The ability of courts to consent in these cases arises from what is called their welfare jurisdiction – that is, their ability to act in the best interests of the child. The High Court of Australia has established that the consent of a court is necessary for the sterilization of a young woman under the age of 18.¹¹ Re Alex accepts the necessity for court authorization in at least some treatments of gender identity dysphoria. The extent to which the common law places restrictions on other forms of treatment is unclear.

The second complication would arise if Alex’s case had arisen in NSW and if Alex were over 16 years of age.¹² This is because of the Guardianship Act 1987 (NSW), which provides a statutory regime applicable to any person over 16 years of age – including an adult - who is incapable of giving consent to the carrying out of medical or dental treatment. Incapacity will, of course, exist where a young person between 16 and 18 is not Gillick-competent. In this respect, the common law and the Act overlap significantly. Under both, the young person who is not Gillick-competent requires the consent of their parent or guardian to medical treatment. However, the Guardianship Act places at least one restriction on the ability of a parent or guardian to consent to the young person’s treatment that does not apply at common law. The restriction is that a parent cannot give consent to treatment where the parent is aware (or ought reasonably to be aware) that the young person objects to the treatment.¹³ Further, the Guardianship Act differs from the common law by providing that the Guardianship Tribunal can give consent to the medical treatment of any person covered by it. In addition, the Act provides that only the Guardianship Tribunal can consent to treatment that it lists as “special treatment”. In such cases, the consent of the parent or guardian is not sufficient.

We need to note two things about “special treatment”:

• First, it includes sterilization, to which, as we have said, the consent of a court is necessary at common law. So, there is here another overlap between the common law and the Act. But the two do not have the same result: the consent of a court is required for the sterilization of a young women below 16 years of age, while the consent of the Guardianship Tribunal must be obtained where the young person is aged between 16 and 18 years of age.
• Secondly, special treatment does not cover some of the hormonal treatment that in Re Alex was accepted as requiring the consent of a court. Rather, the Act otherwise allows the parent or guardian (or Guardianship Tribunal) to consent to “the administration of a long-acting injectable hormonal substance for the purpose of contraception or menstrual regulation”. The effect is that parents have greater control under the legislation than at common law.¹⁴

I hope that this short discussion, which has focused on only a few of the difficult issues that arise in this area by reason of the interaction of common law and statute, will demonstrate why an item in our terms of reference very properly requires us to consider the necessity of codification or amendment of the law in this area.

If you have an interest in these issues, we would welcome your responses to our Issues Paper. Our contact details are on the overhead and in the printed materials available at this session.

FOOTNOTES

1. Law Reform Commission Act 1967 (NSW) s 10.

2. See <http://news.bbc.co.uk/2/hi/uk_news/england/nottinghamshire/3709681.stm> (as at 13 May 2004); also <http://news.bbc.co.uk/2/hi/uk_news/england/nottinghamshire/3710033.stm> (as at 13 May 2004)..

3. Re Alex (Hormonal Treatment for Gender Identity Dysphoria [2004] FamCA 297 (13 April 2004).

4. Re Alex at [153].

5. Marion’s case (1992) 175 CLR 218 at 237 per Mason CJ, Dawson, Toohey and Gaudron JJ.

6. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.

7. Marion’s case at 238.

8. See Marion’s case at 237, 316-317.

9. Esp Re R [1991] Fam 11; Re W [1993] Fam 64.

10. Re Alex at [168].

11. Marion’s case.

12. We do not know from which State or Territory Alex came.

13. Guardianship Act 1987 (NSW) s 37.