In a recent case the Family Court made an order allowing the parents to authorise significant medical treatment for their child. Further, it considered the circumstances in which parents need an order from the court to authorise certain medical treatment of children.
In the case of Re: Carla (medical procedure)  Fam CA7 the Court made an order allowing the parents to authorise a significant operation on their child. The simplified facts of the case are:
- At the time of the court case, Carla was 5 years old.
- Carla was born genetically male. Due to being born with a sexual development disorder, Carla was “markedly under virilised for a genetic male”. Carla looked like a female child.
- Carla’s parents, after obtaining medical advice, decided to raise Carla as a female and to review that decision in consultation with the doctors as Carla grew older.
- Some surgery had been carried out to enhance Carla’s female appearance.
- Carla’s parents applied to the Family Court for various orders, including an order that a gonadectomy may be authorised by either of the parents.
- It was proposed that there be further medical procedures in the future.
- It was the opinion of Carla’s parents that she identified as a girl. This was confirmed by medical evidence.
- Without the operation there was a 28% risk of germ cell malignancy. The operation would remove the risk of tumour development in the testes. The judge said “This is one of, if not the major reason for undertaking the proposed procedure”.
- If the operation was not performed promptly there was a risk that, as Carla approached puberty, testosterone like substances would be produced which would further potentially virilise her body. The medical evidence was that Carla would have an increased risk of developing mental health problems.
- The operation would render her infertile, however it was possible that she would be infertile even if the operation were not performed. The Court accepted that, after careful and informed consideration, Carla’s parents had decided that it was in her best interests to have the procedure.
The first issue is why was the matter brought to the Family Court … why didn’t the parents just go ahead with the operation?
In an earlier case with very similar facts a judge of the Family Court stated that this procedure “requires the sanction of a Court”.
The starting point in this area is a case known as “Marion’s case” , which was decided by the High Court in 1992. In Marion’s case the parents of an intellectually disabled 14 year old girl wished to permit a hysterectomy and ovariectomy to be performed on their child. This was to prevent pregnancy and menstruation and to stabilise hormone fluxes. This case requires careful consideration, but some of the points made by the High Court were:
- Parents could not lawfully authorise the proposed procedures without a Court order;
- Parental power to consent to medical treatment on behalf of the child diminishes gradually as the child’s capacities and maturity grow;
- A child is capable of giving informed consent when he/she “achieves sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.
- Where a child is incapable of giving a valid consent, parents may, in a wide range of circumstances, consent to medical treatment of their child. The overriding criteria being the welfare of the child objectively assessed.
- Referring to sterilisation for the purpose of sterilisation (rather than as a by-product of surgery appropriately carried out to treat some malfunction or disease) “such a decision should not come within the ordinary scope of parental power to consent to medical treatment”. A distinction being made between therapeutic and non-therapeutic sterilisation.
In Re: Carla, the judge decided that the medical treatment proposed for Carla was “therapeutic”. He found that the evidence established that the procedure “should be carried out before the onset of pubertal changes in order to ameliorate real and not insubstantial risks to Carla’s physical and emotional health”. He also found that the onset of pubertal changes would occur before Carla was capable of giving her own informed consent.
The Judge made the orders requested. He also decided that it was a case in which the sanction of the Court was not required.
By Alan Wright
Secretary, Department of Health and Community Services v JWB and SMB  HCA 14; (1992) 175 CLR 218