When is the Court's Consent Required for Special Medical Procedures?

Last year we reported on the decision of the Full Court in Re Jamie [2013] FamCAFC 110 (31 July 2013), a case addressing whether the court's permission is required for a special medical procedure to be carried out on a child. In that case, it was held that the court's permission for a special medical procedure to occur is required only where the child is incapable of providing informed consent to the procedure.

In one of the few cases that have followed Re Jamie, the court in Re Spencer [2014] FamCA 310 considers whether a 17 year old child has the requisite degree of competence to give informed consent to stage-two treatment for gender identity dysphoria.

The High Court in Marion's Case (Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218) set out the test for whether a child is capable of giving informed consent, namely when that child "achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed".

In Re Spencer, the court found that the child's medical evidence overwhelmingly supported a finding that the childsatisfied the 'informed consent' test, and made a declaration to this effect. The Judge found that such a declaration fell within the court's power, and that it was in the child's best interest for such a declaration to be made. As a result of the declaration, there was no need for the court to consider wheter or not to give its permission to the procedure.

As with most cases involving special medical procedures, the names, identities and occupations of all parties have been suppressed, including the names of the parties' legal representation, to protect the privacy of the child.