Judicial Discomfort over ‘Innovative’ Treatment for Adolescents with Gender Dysphoria

Abstract Medical treatment for adolescents with gender dysphoria has attracted considerable attention in recent years, with continuing court involvement in Australia and recent judicial review proceedings in the UK. In Re Imogen [No 6], the Family Court of Australia held that an application to the Family Court is mandatory if a parent or a medical practitioner of an adolescent diagnosed with gender dysphoria disputes the diagnosis, the adolescent’s capacity to consent, or the proposed treatment. In this article, we examine the Family Court’s rationale for preserving its welfare jurisdiction in gender dysphoria cases. We analyse case law developments in Australia and more recently in the UK and identify a thread of judicial discomfort in gender dysphoria jurisprudence about adolescents consenting to medical treatment that the court perceives to be ‘innovative’, ‘experimental’, ‘unique’, or ‘controversial’. We explore whether treatment for gender dysphoria can be characterised as ‘innovative’ and identify four factors that appear to be influencing courts in Australia and the UK. We also consider how such a characterisation might impact (if at all) on an adolescent’s capacity to consent to gender dysphoria treatment. We critique the ongoing role of courts in these cases and recommend a robust decision-making framework for gender dysphoria treatment to minimise court involvement in the future.


I. INTRODUCTION
Medical treatment for adolescents with gender dysphoria has attracted considerable attention in recent years, with continuing involvement by the Family Court in Australia and recent judicial review proceedings in the UK. 1 Although Australian and UK courts have not gone as far as some US legislatures, which have moved to criminalising gender-affirming care, 2 commentators have criticised recent judicial involvement as 'a step in the wrong direction' 3 and 'out of step with international norms'. 4 In Re Imogen (No 6), 5 the Family Court of Australia held that where a parent of an adolescent diagnosed with gender dysphoria disputes the diagnosis, the adolescent's capacity to consent or the proposed treatment, clinicians must seek court authorisation. The Court further held that, in cases where an adolescent is found to be Gillick competent but there remains a dispute about treatment, the Court must assess whether treatment is in the adolescent's best interests. Re Imogen follows a line of judicial authority in Australia that has grappled with the scope of the welfare jurisdiction under section 67ZC of the Family Law Act 1975 (Cth) (Family Law Act) in gender dysphoria cases. We analyse case law in Australia and the UK over recent years and identify a thread of judicial discomfort in gender dysphoria jurisprudence about adolescents consenting to medical treatment that courts perceive to be 'innovative', 6 'experimental', 7 'novel', 8 'unique ', 9 or 'controversial'. 10 1 In September 2021, the Family Court of Australia and the Federal Circuit Court of Australia merged to become the Federal Circuit and Family Court of Australia. In this article, we refer to the 'Family Court', as this was the court that heard applications for authorisation of gender dysphoria treatment pursuant to section 67ZC of the Family Law Act 1975 (Cth). This is discussed further in Section II.B. 2 On 6 April 2021, Arkansas became the first US state to criminalise medical treatment for gender dysphoria for children and adolescents, with Alabama and Tennessee proposing similar legislation; see 'Transgender youth Treatment Banned by Arkansas' BBC News (London, 6 April 2021  [180]. 9 Bell v Tavistock (HC) (n 6) [134].
In Section II, we explain the legal and regulatory framework for the medical treatment of gender dysphoria in adolescents, including the welfare jurisdiction under section 67ZC of the Family Law Act, and the role of clinical treatment guidelines and standards. In Section III, we examine the Australian case law, which we argue exposes the Family Court's concern to retain oversight of medical treatment for gender dysphoria in adolescents owing to the perceived 'innovative' nature of that treatment. The notion of 'innovation' in this context relates to treatment that lacks a clear or consistent line of medical authority, and for which minimal longitudinal data exist to support long-term efficacy. In Section IV, we examine how the notion of innovative treatment influenced the Family Court in Re Imogen. We argue that evidence of 'emerging debate' 11 and 'alternate thinking' 12 within the medical community triggered the Family Court's reinstatement of a court authorisation requirement in cases involving a dispute over diagnosis, consent, or treatment. In Section V, we draw on recent UK case law and medico-legal literature to ascertain which aspects of gender dysphoria treatment have led courts to intervene in these cases. We argue that, even if treatment for gender dysphoria can be described as 'innovative', this should not impact on a competent adolescent's capacity to consent to treatment. We conclude by evaluating the ongoing role of courts in cases involving treatment for gender dysphoria and their reluctance to engage with current clinical and ethical debate. We recommend a robust clinical decision-making framework for gender dysphoria treatment to minimise court involvement in the future. We argue elsewhere that courts should be a last resort for dealing with controversies over treatment as court processes can be psychologically burdensome, time-consuming, costly, and potentially harmful to adolescents and their family relationships. 13

II. THE REGULATORY FRAMEWORK FOR THE MEDICAL TREATMENT OF GENDER DYSPHORIA IN ADOLESCENTS
A. Gender Dysphoria: Diagnosis and Treatment Gender dysphoria is a medical condition characterised by a person experiencing distress when their 'birth sex' and self-perception of being male or female are misaligned, such that they feel 'trapped' in the wrong body. 14 The current diagnostic manual used in Australia is the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 15 For a child to be diagnosed with gender dysphoria, the DSM-5 requires the child to experience a 'marked incongruence' between their expressed or experienced gender and their gender assigned at birth, which persists for more than 6 months, and causes clinically significant distress or impairment in social, school or other important areas of functioning. 16 For a diagnosis to be made, gender dysphoria must manifest in at least six of eight ways listed in the DSM-5, including 'a strong desire to be of the other gender or an insistence that one is the other gender', 'a strong dislike of one's sexual anatomy', and 'a strong desire for the physical sex characteristics that match one's experienced gender'. 17 Medical treatment for gender dysphoria in children and adolescents in Australia is guided by clinical treatment guidelines and standards of care. These include the World Professional Association for Transgender Health (WPATH) Standards of Care, 18 the Endocrine Society Clinical Practice Guideline, 19 and Australian Standards of Care and Treatment Guidelines for Trans and Gender Diverse Children and Adolescents (Australian Standards). 20 These standards and clinical guidelines adopt a 'gender-affirming' model of care for transgender children and adolescents. A genderaffirming approach 'holistically attends to transgender people's physical, mental, and social health needs and well-being while respectfully affirming their gender identity '. 21 Under this approach, accepted medical treatment occurs in two stages. The first stage involves the administration of puberty-suppressant hormones, known as 'blockers'. The second stage of treatment involves the administration of either testosterone or oestrogen to facilitate the adolescent's transition to their affirmed sex. Both in Australia and internationally, the 'informed consent' model for gender-affirming care has developed as an alternative assessment model. 22 The model involves 'a shared decision-making process between the patient and their treating clinician', with mental health support provided to the patient where required, but not as a precondition to 16 ibid. 17 Jack Turban, 'What Is Gender Dysphoria?' (American Psychiatric Association, November 2020) <www.psy chiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria> accessed 10 December 2021. The DSM-5 does not represent gender (and dysphoria) in a necessarily binary way: for example, it refers to 'gender identity' as 'a category of social identity and refers to an individual's identification as male, female, or, occasionally, some category other than male or female': 451 (emphasis added). However, this has been misrepresented in gender dysphoria jurisprudence in both the UK and Australia: see, eg, Bell v Tavistock (HC) (n 6) [55] (the High Court of England and Wales referring to 'transition (both medical and social) to living as the opposite sex'); Re Alex (n 8) [192], [196]- [197]. See 27 The Family Court of Australia has said that parental responsibility '. . . provides the time frame within which it can be assumed by others . . . that parents are empowered at law to make decisions for the protection and benefit of the child'. 28 However, certain kinds of medical treatment, which have come to be known as 'special medical procedures', lie beyond the scope of parental responsibility and require court authorisation pursuant to section 67ZC of the Family Law Act. Section 67ZC provides that, in addition to the jurisdiction under part VII of the Act in relation to children, a court has jurisdiction to make orders relating to the welfare of children, having regard to the best interests of the child as the paramount consideration. The welfare jurisdiction under section 67ZC is considered to be 'akin to', although not limited to, the inherent parens patriae jurisdiction of State superior courts. 29 Both parental responsibility and the welfare jurisdiction operate within a 'best interests' paradigm, although the power bestowed upon the court by section 67ZC is 'broader than that of a parent or guardian', given that 'the Court is able to authorise action . . . which is beyond the scope of parental authority'. 30 The Family Court of Australia has described the welfare jurisdiction under section 67ZC as 'essentially supervisory of parental responsibility'. 31 In Re Alex, discussed below, Nicholson CJ described the welfare jurisdiction as 'protective' and 'paternalistic', cautioning that 'in modern thinking about children and young people [it] must be understood with regard to their rights'. 32 Two factual issues determine whether decisions regarding a child's medical treatment will be beyond the scope of parental responsibility and will require court authorisation: first, whether the child is competent to consent to treatment and secondly, whether the subject matter of the application to the court falls within the category of 'special medical procedures' to which a parent or guardian cannot consent. 33 While the term 'special medical procedure' does not have a settled meaning or legislative definition, 34 it has come to refer to medical treatment for children that has certain features or factors and so requires court authorisation pursuant to section 67ZC of the Family Law Act, as we explain below.
The decision of the High Court of Australia in Secretary, Department of Health & Community Services v JWB & SMB (Marion's case) 35 remains the seminal Australian authority on the scope of the welfare jurisdiction under section 67ZC of the Family Law Act. Marion's case involved an application to authorise the sterilisation of a 14-year-old girl with severe intellectual disabilities. A majority of the High Court identified various 'factors involved in a decision to authorise sterilisation' that justified its conclusion that the decision to authorise such a medical procedure 'should not come within the ordinary scope of parental power to consent to medical treatment'. 36 These factors are: that the proposed treatment is 'invasive', 'irreversible', and 'non-therapeutic' (that is, not 'appropriately carried out to treat some malfunction or disease'); the 'significant risk of making the wrong decision' about a child's present or future capacity to consent, or about the best interests of a child who cannot consent; and the 'particularly grave' consequences of a wrong decision being made. 37 Medical treatment that had the features identified by the High Court required Family Court authorisation, as a 'procedural safeguard'. 38 In the case of Re Alex, 39 Nicholson CJ expanded the scope of the welfare jurisdiction under section 67ZC of the Family Law Act to medical treatment for gender dysphoria in children and adolescents. The application before the Family Court was a 'novel' one: 40 a government department, as legal guardian of a 13-year-old young person (anonymised in the judgment as 'Alex'), applied pursuant to section 67ZC for the authorisation of medical treatment for Alex, who had been diagnosed with 'gender identity disorder'. 41 The evidence before the court did not establish that Alex had the capacity to consent to the proposed treatment. 42 Nicholson CJ was satisfied that the medical treatment plan proposed for Alex fell within the category of 'special medical 33 A third factual issue is whether the child is currently under a care order, see Re Alex (n 8) [151]. 34  procedures' requiring court authorisation, as developed in Marion's case. His Honour referred to 'significant risks' that attached to embarking on a process that will alter a child or young person who presents as physically of one sex in the direction of the opposite sex, even where the court is not asked to authorise surgery and held that on the evidence, it could not be said that treatment for childhood gender dysphoria was 'to cure a disease or correct some malfunction'. 43 The Full Court of the Family Court has gradually relinquished the court's role in gender dysphoria treatment for children and adolescents. In Re Jamie, 44 the Full Court held that stage one treatment (puberty blockers) could no longer be considered a special medical procedure 45 ; but came to the opposite conclusion in relation to stage two treatment (gender-affirming hormones), owing to its irreversible effects. 46 The Full Court held that court authorisation for stage two treatment was appropriate, unless the child was Gillick competent (ie, a mature minor). Importantly, the Full Court held that it was the Family Court's role to determine the question of Gillick competence. 47 Four years later, the Full Court in Re Kelvin 48 departed from its decision in Re Jamie. It concluded that an application to the Family Court to determine a child's Gillick competence was no longer mandatory where the child consented to stage two treatment, the child's treating medical practitioners agreed that the child was Gillick competent, and the parents did not object to the treatment. 49 However, the majority imposed a caveat: there was 'no doubt' that the Family Court had the jurisdiction and power to address questions about the need for court authorisation in circumstances of 'genuine dispute or controversy' between the child's parents and treating medical practitioners about whether medical treatment for gender dysphoria should be administered. 50 Similarly, the minority held that the Family Court had no role to play in relation to stage two treatment 'unless there is a dispute about consent or treatment'. 51 The majority also observed that treatment that might not meet the description of having 'grave or irreversible consequences' might nevertheless fall outside of the scope of parental authority because of its novelty, or its experimental nature, or its place outside of accepted medical science . . . 52 43 ibid 537 [196]. 44 Re Jamie (n 34 Having outlined how the welfare jurisdiction under section 67ZC of the Family Law Act evolved to capture medical treatment for children and adolescents with gender dysphoria, in the next section, we focus on the judicial characterisation of gender dysphoria treatment as 'novel', 'experimental', or falling 'outside of accepted medical science'.

III. ONGOING FAMILY COURT OVERSIGHT OF MEDICAL TREATMENT FOR ADOLESCENTS WITH GENDER DYSPHORIA
Although treatment for gender dysphoria is no longer considered a 'special medical procedure' in Australia, the Family Court has continued its oversight, which seems to be based-at least in part-on the perceived 'innovative' nature of this treatment. 53 It is important to distinguish between the perceived 'novelty' of gender dysphoria as a medical condition, and the novelty of the proposed treatment. In Re Jamie, Bryant CJ observed that the novelty of the condition described . . . [in Re Alex] is no longer supportable. The cases since Re Alex . . . would indicate that the condition is not as unusual as it presented itself in 2003 when Re Alex was decided. 54 Family Court judges have recognised that the diagnosis of children with gender dysphoria in Australia has grown significantly over the past 15 years. 55 However, the Family Court has emphasised on several occasions that the kinds of medical treatment that may fall within the court's welfare jurisdiction will be influenced by all the circumstances surrounding the treatment, including developments in medical science. In Re Alex, Nicholson CJ noted that '[t]he categories of cases in which the welfare jurisdiction properly ought to be invoked are not closed', particularly as 'the march of science overtakes the perimeters of the settled law'. 56 In Re Sean and Russell, 57 Murphy J considered that it was 'not possible, nor . . . desirable, to further define or list those procedures, treatments or the like which require court authorisation'. 58 According to Bryant CJ in Re Jamie, the mere 'possibility of different treatments' and 'different views about what treatment should be given-for example, whether a condition might be treated with medication or surgery, and which medications might be more effective than others' would not, on that basis alone, render the treatment a special medical procedure. 59 However, her Honour agreed that cases may arise involving issues that require court authorisation 'due to the evolving state of medical 53  knowledge'. 60 The majority in Re Kelvin reinforced these earlier judicial views, observing that the types of medical treatment for which court authorisation is required are neither closed nor confined to sterilization of a child who is not, and never will be, Gillick competent. Rather, as a general rule, whether court authorisation is required will be dependent upon the entirety of the circumstances surrounding the particular treatment. 61 A. Judicial Understandings of Medical Treatment for Gender Dysphoria as 'Innovative' The Australian gender dysphoria jurisprudence to date exposes what we argue is a judicial discomfort about adolescents consenting to medical treatment that the Family Court perceives to be 'innovative'. We embrace the notion of 'innovation' in this context as capturing treatment that lacks a clear or consistent line of medical authority, and for which minimal longitudinal data exist to support long-term efficacy. This has manifested in gender dysphoria proceedings through a dearth of, or the contested nature of, expert or scientific evidence regarding the nature, risks, and long-term impacts of treatment.
The Family Court in gender dysphoria proceedings has displayed a consistently strong deference to the evidence of the medical practitioners of the child or adolescent seeking access to treatment. In Re Bernadette, 62 for instance, the Family Court was asked to re-consider Re Alex and to determine whether parents have the authority to lawfully authorise stage one and/or stage two treatment without a court order. 63 Collier J was not satisfied that the evidence established that there had been 'such a change in the state of medical knowledge' that would enable the court to disregard the views of the High Court in Marion's case and of the Family Court in Re Alex. 64 His Honour cited the absence of 'clear-cut' medical authority on the cause of gender dysphoria, 65 and 'considerable difference between what might be described as the British school and the Dutch school' of thinking in relation to aspects of proposed treatment. 66 In justifying the conclusion that medical treatment for gender dysphoria did not fall within the parameters of parental responsibility, Collier J in Re Bernadette observed that . . . there still remains grave dispute within the medical community as to the best treatment that can be offered. I am satisfied that until there is a clear cut line of authority within the medical profession, it would be difficult for parents to reach an informed conclusion in every case. 67 In subsequent gender dysphoria cases, the Family Court has referred to 'uncertainties surrounding the treatment' 68 and 'significant controversy within the scientific community' 69 regarding the risks and potentially adverse effects of gender-affirming hormone treatment that 'is not well-understood'. 70 The Court has noted 'limited longitudinal research on the impact of long term cross hormone treatment', 71 and observed that 'the long-term effects of the proposed treatment are still being studied'. 72 It has also referred to 'no evidence one way or the other' in relation to a particular risk of the treatment, given that it 'had not been measured by any long-term outcome study'. 73 The absence of consensus within the medical community, coupled with the long-term impacts of gender-affirming hormone treatment as 'an area requiring ongoing research', 74 we suggest has justified the Family Court's ongoing role in the medical treatment process for gender dysphoria in children and adolescents. However, the Full Court in Re Kelvin displayed an appreciation of the need for 'the law . . . to effectively reflect the current state of medical knowledge'. 75 The majority noted that in 'each and every case' in which court authorisation had been sought for an adolescent's treatment for gender dysphoria, the decision had been informed by 'comprehensive evidence from a miscellany of medical specialists from different disciplines (for example, psychiatry, psychology, paediatrics, and endocrinology) . . .'. 76 The Full Court also observed that 'over time the expert evidence adduced in [gender dysphoria] . . . cases reflected advances in medicine'. 77 B. Judicial Appreciation of 'Advances in Medical Science' and the Evolving State of Medical Knowledge In Re Kelvin, outlined in Section II.B above, the issue for the Full Court's determination was whether gender dysphoria should continue to require the 'filter' of court involvement, 'when no such filter is required in most cases involving other medical conditions'. 78 The majority situated its decision within the historical trajectory of the welfare jurisdiction in gender dysphoria proceedings. Nicholson CJ in Re Alex, in imposing a court authorisation requirement for both stage one and stage two treatments, alluded to unsettled medical authority in relation to the diagnosis of and treatment for gender dysphoria. His Honour observed that '[t]he aetiology of a compelling desire to make the transition to become the opposite sex has not been definitively established'; 79 and that '[t]he current state of knowledge would not . . . enable a finding that the treatment would clearly be for a "malfunction" or "disease" and thereby not within the jurisdiction of this Court.' 80 The Full Court in Re Jamie had departed from Re Alex in finding that stage one treatment was 'therapeutic' and fully reversible, and so fell within the wide ambit of parental responsibility, because 'not only the state of medical science had moved on, but the Court's understanding of the same had evolved'. 81 The majority in Re Kelvin also observed that an assessment of whether a particular treatment is therapeutic or non-therapeutic (on the distinction drawn in Marion's Case) must depend on, among other things, 'evolving medical science which, notoriously, occurs at a very rapid pace'. 82 The majority in Re Kelvin conceded that judicial understandings of gender dysphoria and its treatment had 'fallen behind' advances in medical science. 83 It referred to the release of a new edition of the DSM-5 between the Full Court's hearing of Re Jamie and Re Kelvin; 84 the development of international and Australian standards of care for the treatment of gender dysphoria in adolescents; and increased knowledge of the risks associated with not providing treatment. 85 According to the majority, there was 'no question that the state of medical knowledge has evolved since the decision in Re Jamie'. 86 The majority identified 'legally relevant factual differences' to justify its conclusion that it was 'unnecessary and indeed inappropriate' for the Full Court to find that Re Jamie was 'plainly wrong'. 87 These differences included the advances in medical science regarding the purpose for which the treatment is provided, the nature of the treatment, and the risks involved in undergoing, withholding or delaying treatment. 88 Notwithstanding its divergent reasoning to arrive at the same conclusion, the minority observed that 'over time the expert evidence adduced in [gender dysphoria] . . . cases reflected . . . advances in medicine'. 89 The Full Court in Re Kelvin thus acknowledged that the law had fallen out of step with medical and scientific progress in the treatment of gender dysphoria-progress which mandated a conclusion that not only the condition, but also treatment for that condition, was no longer 'novel' or 'uncertain' enough as to require court authorisation. Importantly, however, the majority in Re Kelvin emphasised that the Full Court's focus was upon whether there was any role for the Family Court in cases lacking a dimension of controversy or dispute where there is no dispute between parents of a child who has been diagnosed with Gender Dysphoria, and where there is also no dispute between the parents and the medical experts who propose the child undertake treatment for that dysphoria. 90 The Family Court in Re Imogen embraced this notion of 'controversy' over Gillick competence, diagnosis or treatment, to reaffirm the court's role in the medical treatment of gender dysphoria in certain circumstances.

IV. RE IMOGEN: 'EMERGING DEBATE' AND THE FAMILY COURT'S ROLE IN DISPUTES ABOUT CONSENT, DIAGNOSIS, OR TREATMENT OF GENDER DYSPHORIA
A. An Overview of the Re Imogen Proceedings 'Imogen', as she was anonymised in the judgments, had been diagnosed with gender dysphoria and assessed as Gillick competent by her treating medical practitioners. Imogen was 16 years of age at the time of her father's application to the Family Court. She had been undertaking stage one treatment, and had been expressing 'a consistent, persistent, and insistent' wish to progress to stage two treatment for almost 2 years. 91 However, Imogen's mother disputed Imogen's diagnosis and the finding of Gillick competence and did not consent to Imogen commencing stage two treatment. 92 The trial judge, Watts J, identified four questions that Imogen's case raised about the current law for children and adolescents diagnosed with gender dysphoria where there is a dispute about consent or treatment. These questions concerned whether an application to the Family Court is mandatory; whether a finding of Gillick competence would enable the adolescent to make their own treatment decisions; the nature of any order that should be made about Gillick competence; and the nature of the order that should be made if the adolescent's consent is insufficient. 93 Watts J's answers to these questions reaffirmed the Family Court's role in gender dysphoria treatment for children and adolescents in circumstances of dispute or controversy. 94 His Honour concluded that an application to the Family Court is mandatory if a parent or a medical practitioner of an adolescent diagnosed with gender 90 ibid [116]. 91 Re Imogen (n 5) [1], [205]. 92 Three parties in addition to Imogen's father and mother (the applicant and respondent, respectively) were involved in the hearing: an independent children's lawyer appointed to represent Imogen's interests, and two interveners, namely, the Commonwealth Attorney-General and the Australian Human Rights Commission. 93 Re Imogen (n 5) [ However, where a dispute concerns diagnosis or treatment, Watts J concluded that a finding of Gillick competence is not determinative. Notwithstanding a finding of Gillick competence, the Family Court should determine the diagnosis; determine whether treatment is appropriate, following a best interests' assessment; and make an order authorising or not authorising treatment pursuant to section 67ZC of the Family Law Act. 97 Watts J also held that a medical practitioner should not administer treatment without court authorisation in circumstances where an adolescent seeks treatment but the adolescent's parent or legal guardian does not consent. 98 Watts J observed that the Re Imogen proceedings were heard 'in the context of an emerging debate about the diagnosis and treatment' of gender dysphoria. 99 In the next section, we focus upon the expert evidence put before the Family Court in Re Imogen, which was said to demonstrate 'the emergence of alternate thinking' in relation to the treatment of gender dysphoria and the long-term impacts of that treatment. 100 We argue that such evidence raised the spectre of dispute within the medical community, which was not before the Full Court in Re Kelvin, yet which purportedly warranted the Family Court's ongoing protective oversight role.
B. Evidence of 'The Emergence of Alternate Thinking' about Gender Dysphoria Treatment As noted in Section III.B above, the Full Court in Re Kelvin removed the Family Court from the medical treatment process for gender dysphoria in adolescents, in light of 'advances in medical science in treating and understanding' gender dysphoria. 101 In Re Imogen, the Australian Human Rights Commission, an intervener in the proceedings, argued that statements of legal principle in Re Jamie must be viewed in light of the 'difference in the state of medical knowledge' between when that case was decided at first instance in 2011, and when Re Kelvin was decided in 2017-and in particular, the 'changed understanding about the nature of treatment'. 102  rejected this argument. According to his Honour, a 'logical extension' of that argument would require a consideration of the volume of evidence in this case which demonstrates a proliferation of academic and other writings since Re Kelvin and the emergence of alternate thinking about treatment and questions arising from the state of knowledge in respect of the long-term implications of current medical treatment for Gender Dysphoria. 103 Such 'alternate thinking' and clinical questions emanating from the state of knowledge about the long-term effects of gender dysphoria treatment for adolescents emerged from the expert evidence in Re Imogen. In Re Kelvin, the majority had observed that in no stage two gender dysphoria case had contradictory evidence been forthcoming to challenge the desirability of the relevant medical treatment. 104 The Re Imogen proceedings offered that contradictory evidence. Medical evidence was provided by Imogen's treating psychiatrist and treating endocrinologist (called by Imogen's father), a psychiatrist (called by Imogen's mother), and an academic with a background in therapy (called by the independent children's lawyer). Watts J noted that two of these experts adopted 'fundamentally different diagnostic frameworks, methods, and conceptualisation of the experience' of gender dysphoria. 105 The definition of gender dysphoria and the stages of gender-affirming treatment as described in the Australian Standards were not in issue. 106 Rather, the point of contention lay in the efficacy of the proposed treatment for Imogen, namely, the administration of gender-affirming hormones.
The 'orthodox middle', according to Watts J, was the Australian Standards, which adopt a 'multi-disciplinary approach' to treatment using gender-affirming hormones that is 'currently accepted by the majority of the medical profession' and was followed by Imogen's treating medical practitioners. 107 This is the genderaffirming approach outlined in Section II.A above. Watts J made two pointed observations about the Australian Standards. First, his Honour found that they did not accurately reflect the current state of the law in circumstances where there is a dispute about treatment. 108 Secondly, Watts J noted that while the Australian Standards 'assert that they are based upon available empirical evidence and clinical consensus', they also acknowledged that future research was warranted and was 'likely to influence future recommendations'. 109 The mother's adversarial expert psychiatrist advocated a 'more conservative' and 'alternative' approach. 110 He suggested that psychotherapy, rather than medication, should be the preferred treatment method for gender dysphoria in adolescents.
Watts J accepted that this was a 'risky and unproven strategy'. 111 His Honour also referred to a 'less conservative approach', being the 'informed consent' model made available through particular general practitioners, who prescribed gender-affirming hormones to 16-and 17-year-olds 'without knowing whether their parents or legal guardians dispute whether that treatment should be prescribed'. 112 Two experts gave contrasting evidence regarding the acceptance and practice of this informed consent model in Australia: according to one, the model was being adopted by 'an increasing number of medical practitioners', while the other had 'not seen any evidence that "informed consent" is becoming a widely accepted model of treatment'. 113 Watts J observed that research literature in transgender health had 'expanded rapidly' in the last decade, particularly since the Re Kelvin decision. 114 His Honour identified 'different views' among the experts in the case about the state of current research into the diagnosis and treatment of gender dysphoria. 115 A particular point of disagreement was the research base for the gender-affirming care model. The mother's expert expressed concern about 'the lack of adequate study into the physical and psychological long-term effects of hormonal and surgical interventions'. 116 Watts J noted that both the Australian Standards and the academic expert in the case acknowledged the need for further research into the long-term outcomes of current treatments under the gender-affirming care model. 117 His Honour highlighted parts of a letter from the Royal Australian College of Physicians (RACP) to the Federal Minister for Health, who had sought advice on the treatment of gender dysphoria in children and adolescents in Australia. That letter recommended that patients and families 'be provided with information about the limitations of the available evidence' concerning gender dysphoria. 118 Relevantly, it described gender dysphoria treatment as an emerging area of healthcare where existing evidence on health and wellbeing outcomes of clinical care is limited due to the relatively small number of studies, the small size of study populations, the absence of long-term follow up and the ethical challenges of robust evaluation when control (no treatment) is not acceptable. 119 The Family Court's concern about 'emerging debate' within the medical community, and gaps in the research concerning gender dysphoria treatment, are neatly captured by Imogen's 'measured response' to a question put to her in an assessment by the mother's expert: 'we just don't know'. 120 The many perceived unknowns-including why transgender patients are lost to follow-up, the exponential rise in gender dysphoria cases in the past decade, issues of regret and de-transitioning, and the surge in adolescents identifying as transgender without a reported childhood history 121we suggest prompted the Family Court in Re Imogen to mandate court involvement in cases involving a dispute about diagnosis, Gillick competence, or treatment.
Watts J quoted from the majority judgment in Re Kelvin that while 'routine treatments for everyday medical conditions' do not require court authorisation, some circumstances 'may dictate the need for court intervention'-including, relevantly, 'disputes between parents' or 'experimental or novel treatment or treatment for unusual or novel conditions'. 122 The Re Imogen judgment emphasised the circumstance of 'disputes between parents' to justify the Family Court's ongoing involvement in gender dysphoria treatment. 123 This was a case involving parents in 'warring camps', 124 and Watts J sought to resolve a 'controversy' about what the leading Full Court authorities-Re Jamie and Re Kelvin-decided about 'cases where there is dispute about consent or treatment'. 125 Watts J reflected that the evidence about Imogen sourcing unprescribed medication from overseas was 'troubling but spoke eloquently of the dangers that have been created by the dispute in this case'. 126 Our analysis in this section has served to show that the nature of the treatment for gender dysphoria was of greater concern to the Court than the fact of dispute, given that the medical and scientific evidence is not yet well established or agreed upon.

V. IS TREATMENT FOR GENDER DYSPHORIA 'INNOVATIVE' AND HOW MIGHT THIS IMPACT CAPACITY TO CONSENT?
The analysis of Re Imogen in Section IV above reveals ongoing judicial concern over protecting adolescents diagnosed with gender dysphoria from making decisions about their own bodies and identities, in relation to treatment the court (still) perceives to be innovative or novel in nature. While the term 'innovative treatment' has not been used explicitly by the Family Court in gender dysphoria cases, 127 the Court has referred variously to 'experimental' or 'novel' treatment, 128 medical evidence that is not 'clear cut', 129 and 'evolving medical science, which, notoriously, occurs at a very rapid pace'. 130 The notion of 'innovation' in this context appears to relate to treatment that lacks a clear or consistent line of medical authority, and for which minimal longitudinal data exist to support long-term efficacy, in part due to the ethical inability to conduct randomised control trials. In this section, we compare the judicial discomfort around gender dysphoria treatment in Australia with that in the UK, where recently the courts have expressly articulated concern in relation to the use of puberty blockers as stage one of the medical treatment process. UK courts have highlighted certain aspects of gender dysphoria treatment as justifying court involvement in what they perceive to be 'unique' or 'controversial' cases. 132 We identify four factors that appear to be influencing Australian and UK courts' characterisation of treatment for gender dysphoria as a special category that warrants court oversight. We also examine the notion of 'innovative' treatment as defined in the medico-legal and ethics literature and draw some common threads with the judicial commentary on treatment for gender dysphoria. We argue that, even if treatment for gender dysphoria can be described as 'innovative', this should not impact on a competent adolescent's capacity to consent to treatment.

A. Recent UK Jurisprudence on Gender Dysphoria Treatment
Judicial discomfort around what courts perceive to be 'innovative' treatment was clearly articulated by the UK High Court in Bell v Tavistock. 133 This case involved an application for judicial review and declarations that the UK Gender Identity Development Service (GIDS) acted unlawfully in prescribing puberty blockers to children under the age of 18 years. The High Court did not find that GIDS acted unlawfully, but made declarations that undermined the capacity of adolescents to consent to treatment with puberty blockers and suggested that court authorisation may be needed to administer puberty blockers in future cases. The High Court described the administration of puberty blockers as 'a very unusual treatment' for several reasons: Firstly, there is real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy, or indeed quite what it is seeking to achieve. This means it is, in our view, properly described as experimental treatment. Secondly, there is a lack of clarity over the purpose of the treatment: in particular, whether it provides a 'pause to think' in a 'hormone neutral' state or is a treatment to limit the effects of puberty, and thus the need for greater surgical and chemical intervention later, as referred to in the Health Research Authority report. Thirdly, the consequences of the treatment are highly complex and potentially lifelong and life changing in the most fundamental way imaginable. The treatment goes to the heart of an individual's identity, and is thus, quite possibly, unique as a medical treatment. 134 The High Court in Bell observed that 'the clinical intervention we are concerned with here is different in kind to other treatments or clinical interventions'. 135 According to Dunne, the High Court's 'scepticism' about the efficacy of puberty blockers contributed to its determination that such a treatment is 'experimental', as the High Court did not engage with the 'growing body of international scholarship' on the benefits of early medical intervention for gender dysphoria in adolescents. 136 In the subsequent case of AB v CD, 137 the High Court similarly acknowledged that puberty blockers have 'life-changing and life-long consequences, the implications of which are not fully understood', and clinical and ethical views on their use differ significantly. 138 On appeal, the Court of Appeal in Bell v Tavistock described the treatment of gender dysphoria as 'controversial', but held that it was a question of fact as to whether an adolescent can consent to treatment with puberty blockers. 139 The following comments highlight a judicial reluctance to engage with the broader clinical, moral, and ethical debates surrounding gender dysphoria treatment: Medical opinion is far from unanimous about the wisdom of embarking on treatment before adulthood. The question raises not only clinical medical issues but also moral and ethical issues, all of which are the subject of intense professional and public debate. Such debate, when it spills into legal proceedings, is apt to obscure the role of the courts in deciding discrete legal issues. 140 Although the decision by the Court of Appeal has been welcomed as a 'huge win' 141 and a 'positive step forward' 142 for trans people and their families, others have emphasised that the court was careful not to take a position on the debate over puberty blockers. 143 Some commentators have expressed concern that 'legal judgments which interfere with necessary medical treatment for transgender youth, undertaken in a shared decision-making process between patients and qualified clinicians', have the potential to harm the children and adolescents seeking treatment. 144 In recognising the ongoing controversy in this area and the potential for civil action against clinicians in individual cases, the Court of Appeal highlighted the potential for courts to be involved in future gender dysphoria cases. 145

B. Factors Influencing Courts in Categorising Treatment for Gender Dysphoria as
'Innovative' From our review and analysis of the Australian and UK case law on gender dysphoria treatment for children and adolescents, we have identified four key factors underpinning the courts' cautious approach, and the finding that treatment for gender dysphoria is, variously, 'innovative', 'experimental', 'novel', 'unique', or 'controversial'. This finding has led to judicial concerns about the impacts of treatment on an adolescent's future autonomy and ability to assess the benefits and risks, compelling courts to protect adolescents from their own decision-making. 146 These concerns expose a tension between best interests and autonomy, and challenge the capacity of adolescents to make decisions that will affect their future choices, yet which they may in the present not fully understand. 147 In Bell v Tavistock, the High Court found that: For many children, . . . it will not be possible to conceptualise what not being able to give birth to children (or conceive children with their own sperm) would mean in adult life. Similarly, the meaning of sexual fulfilment, and what the implications of treatment may be for this in the future, will be impossible for many children to comprehend. 148 The High Court considered that there was 'no age appropriate way to explain to many of these children what losing their fertility or full sexual function may mean to them in later years'. 149 However, protecting a child's right to an 'open future' 150 in the context of gender dysphoria treatment is complicated because, as the Court of Appeal in Bell v Tavistock recognised, 'neither puberty suppression nor allowing puberty to occur can be regarded as a neutral act'. 151 The first factor relied on by Australian and UK courts to justify a cautious approach in gender dysphoria cases is the disharmony within the medical community in relation to gender dysphoria treatment. The Family Court in Re Imogen emphasised the 'emergence of alternate thinking' and 'emerging debate' within the medical community about the long-term effects of gender dysphoria treatment to mandate court involvement in cases involving a dispute. 152 In AB v CD, the High Court of England and Wales noted that the use of puberty blockers 'raises unique and highly controversial issues' and described the division of clinical and ethical views as 'highly polarised'. 153 However, the High Court in that case argued that these matters should be addressed 'in a regulatory and academic setting', 154 rather than via court oversight.
Secondly, and related to the first factor, is uncertainty over short-and long-term consequences of treatment, given the limited longitudinal evidence about efficacy and risks. 155 Potential risks associated with stage one hormone treatment for gender dysphoria (puberty blockers) include reduced bone density, genital atrophy (which may compromise future genital reconstructive surgery), and negative cognitive and psychosocial impacts associated with delayed puberty. 156 Risks of stage two treatment (gender-affirming hormones) include permanent infertility, which may impact on the adolescent's future reproductive choices. 157 Medical opinion on the nature and significance of the various risks associated with gender dysphoria treatment for adolescents varies. Duffy argues that puberty blockers have been shown internationally to be 'both safe and reversible', 158 whereas the Royal Australian and New Zealand College of Psychiatrists states that 'there is a paucity of quality evidence' on patient outcomes for gender dysphoria, particularly for children and adolescents. 159 There is growing clinical consensus that the benefits of hormone and surgical treatment outweigh the risks. However, some experts emphasise the absence of randomised controlled trials in this field and note that current '[r]ecommendations are based on low level evidence, broad and open to interpretation'. 160 Others argue that there is a 'moral obligation to scientifically study' the impacts of medical treatment for gender dysphoria on the well-being and developing autonomy of children and adolescents. 161 It is also important to balance the risks associated with treatment for gender dysphoria with the risks associated with not providing treatment. 162 These include increasing depression, anxiety and suicidality, social withdrawal, illegally accessing medications (as occurred in Re Imogen), and eating disorders. 163 The third factor that appears to be influencing Australian and UK courts in treating gender dysphoria cases as a special category is a perceived lack of clarity over the purpose of the treatment, and disagreement about the aetiology of the condition being treated. The High Court in Bell v Tavistock highlighted its concern about the 'direct physical consequences' of treating a condition that 'has no direct physical manifestation'. 164 The High Court also queried the categorisation in the DSM-5 of gender dysphoria as a psychological condition, noting that in other cases, medical treatment is used to remedy, or alleviate the symptoms of, a diagnosed physical or mental condition, and the effects of that treatment are direct and usually apparent. The position in relation to puberty blockers would not seem to reflect that description. 165 Horowicz challenges the need to pathologise gender diversity to promote access to treatment for gender dysphoria. 166 He notes that the different ways in which healthcare systems provide gender dysphoria services, and the way in which different societies and cultures view gender diversity, have created barriers to accessing appropriate treatment. 167 These concerns reflect Brunskell-Evans' view that the 'transgender child' is a category constructed by medico-legal discourse. 168 Our analysis reinforces these concerns: while medical treatment for gender dysphoria in Australia no longer falls within the 'special medical procedure' category requiring court authorisation, the Family Court remains reluctant to 'let go', in part due to its trepidation over the treatment sought.
Fourthly, courts highlight the fact that consequences of gender dysphoria treatment are complex and potentially life-changing. 169 The Family Court in Re Imogen was influenced by clinical uncertainty about the long-term effects of gender dysphoria treatment for adolescents, which emerged from the expert evidence. 170 Although Re Imogen focused on stage two gender-affirming hormone treatment, the High Court in Bell v Tavistock held that the consequences that flow from stage one puberty blocking treatment include those that follow on from progression to stage two treatment. 171 Moreton describes this conclusion as 'problematic' and inconsistent with Australian jurisprudence, which previously categorised stage one treatment as a separate and distinct stage to stage two treatment, to which a competent adolescent could consent without court approval. 172 The Court of Appeal in Bell v Tavistock also emphasised the need for clinicians to take 'great care' in prescribing puberty blockers and cross sex hormones 'in the light of evolving research and understanding of the implications and long-term consequences of such treatment' to avoid regulatory or civil action. 173 The four factors just described appear to have influenced the Australian and UK courts in taking a cautious approach to cases involving treatment for gender dysphoria. However, it is important to highlight that the concept of 'innovative' treatment more broadly is underdeveloped in case law. There is some precedent in UK law for courts taking a different approach to experimental treatment. 174 In Simms v Simms, Butler-Sloss J described the treatment of Creutzfeldt-Jakob disease with the drug Pentosan Polysulphate as 'experimental treatment with unknown risks and benefits', but held that administration of the treatment was justified in the circumstances without court approval. 175 In AB v CD, Lieven J distinguished treatment with puberty blockers from Simms v Simms, which involved a fatal condition with no alternative treatment. She argued that a more cautious approach may well be justified in relation to puberty blocker treatment, as the 'factual, clinical and ethical issues' surrounding such treatment are 'different'. 176 In R (Burke) v General Medical Council, Munby J distinguished between routine medical practice and 'innovative, experimental or untested forms of treatment'. 177 In the more recent case of B v D, Baker J described stem cell treatment for an adult who lacks capacity due to a traumatic brain injury as 'new' on the basis that it is unsupported by any or at least any significant body of research, that it has not been subjected to clinical trials, and that the evidence that it is, or might be, an effective treatment for traumatic brain injury is almost entirely anecdotal. 178 At least some of these cases appear to describe treatments that have less clinical certainty than current treatment for gender dysphoria, although there is no clear threshold outlined by the court as to where the line should be drawn. 171 Bell v Tavistock (HC) (n 6) [136]. 172

C. Attempts to Define 'Innovative' Treatment in Medico-Legal and Ethics
Literature Definitions in the medico-legal and ethics literature on medical 'innovation' vary. However, as with the judicial commentary discussed above, there are some common threads that can be drawn. The conceptualisation of certain treatments as 'innovative' has been discussed in medical literature for over 50 years. 179 In 1974, the US National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research distinguished 'innovative practice' from both ordinary clinical practice and clinical research. 180 Specifically, the Commission found that a procedure that is 'experimental' insofar as it is 'new, untested or different' does not automatically place it in the category of research. 181 According to Earl, this view suggests that 'therapeutic, preventive, or diagnostic (i.e. clinical) interventions are innovative if they deviate from standard or accepted clinical practice'. 182 Recognising the potential for ambiguity in this definition, Earl more recently defined 'innovative practice', drawing on ethics literature, as a deviation from 'the idealized expert-consensus standard', which is 'best supported by the available scientific evidence, clinical experience, and expert judgment'. 183 This definition focuses on evidence base and expert-consensus.
Commentators from different disciplines have attempted to define 'innovative treatment' based on specific factors. For example, Brierley and Larcher focus on clinical uncertainties around efficacy and side-effects of treatment by describing innovative therapy as any newly introduced treatment, or a new modification to an existing therapy with unproven efficacy and side effect profile, which is being used in the best interests of a patient, often on an experimental and/or compassionate basis. 184 Other definitions refer to treatment that is 'less likely to accord with accepted practice', 185 and observe that the adjective 'innovative' 'informs patients that the suggested treatment is new and not standard', which may be 'linguistically significant', because it 'sounds positive in comparison to describing a treatment as "unproven" or "untested"'. 186 McHale accepts that what may amount to an 'innovative' treatment is 'relative and a question of time and space'; 'something which is unique to this context and has never been used before in another clinical setting, or something which has been adapted from use in a different clinical setting'. 187 She also appreciates that 'definitional uncertainties' concerning such treatment create a 'practical problem in terms of ensuring effective oversight and subsequent accountability'. 188 These issues of effective oversight and accountability indeed emerge from the gender dysphoria jurisprudence in both Australia and the UK, and the courts' reluctance in Australia to cede their role in the medical treatment process for children and adolescents.
There is no clear consensus in the relevant literature as to whether treatment for gender dysphoria is 'innovative'. O'Connor and Madden argue that gender-affirming hormone treatment remains to some extent 'experimental', as doubts linger about whether sufficiently well-designed studies exist in relation to the long-term efficacy of that treatment. 189 In contrast, Moreton rejects the categorisation of stage one treatment for gender dysphoria as 'experimental', noting that puberty blockers are safe and reversible, and that most drugs have unknown long-term effects. 190 The common threads in the literature on 'innovative treatment' raise similar issues to those in the judicial commentary on treatment for gender dysphoria. A dominant concern is clinicians' potential liability in negligence for adverse outcomes following innovative treatment, or for failing to obtain the patient's valid consent to treatment, or for failing to discharge their duty to inform the patient of the risks. 191 Cockburn and Fay argue that the potential unknown risks of innovative treatment may impact on the legal obligations of clinicians in terms of their duty to inform patients of 'material risks, particularly communicating uncertainty and the possibility of unknown risks; potential conflicts of interests. . .; and the likelihood of optimism bias in decision making'. 192 These threads also reflect, to a lesser degree, some of the 'features' or 'factors' that the High Court identified in Marion's case for 'special medical procedures' requiring court authorisation. As we outlined in Section II.B above, these factors are: that the proposed treatment is 'invasive', 'irreversible', and 'non-therapeutic'; the 'significant risk of making the wrong decision' in relation to a child's present or future capacity to consent, or about the best interests of a child who cannot consent; and the 'particularly grave' consequences of a wrong decision being made. 193 Although treatment for gender dysphoria is no longer considered a 'special medical procedure' on the basis that it is now recognised as 'therapeutic', 194 the caution exercised by Australian and UK courts in gender dysphoria cases suggests that the presence of certain factors will lead to continued court involvement and oversight in some cases. In the final section, we consider whether classifying gender dysphoria treatment for children and adolescents as 'innovative' should impact on the consent process.

D. Impacts on Capacity to Consent
Kimberley and others state that 'innovative treatment options' for gender dysphoria raise ethical challenges for the consent process, given that 'for novel or innovative therapies . . . risks and benefits are not well documented or understood '. 195 The potential unknown risks of innovative treatment and the challenges in adequately conveying these risks to adolescents appear to have a significant impact on the courts, even where an adolescent is found to be Gillick competent. According to the decision of the House of Lords in Gillick, an adolescent can consent to treatment when they have achieved 'a sufficient understanding and intelligence to enable him or her to understand fully what is proposed'. 196 The House of Lords in Gillick did not restrict the kinds of 'matters' that a child might be competent to decide to the facts of that case, which concerned contraceptive advice and treatment. 197 Australian gender dysphoria jurisprudence has shown a patent unease with the notion that children and adolescents are Gillick competent to consent to gender dysphoria treatment. 198 In Re Alex, discussed above, the Human Rights and Equal Opportunity Commission submitted that a court has no power to override either the informed consent or informed refusal of a competent child to medical treatment, or, if it does have such a power, it should not as a matter of discretion exercise that power except, perhaps, in extreme circumstances. 199 The Commission also submitted that if this Court finds that the child has achieved 'a sufficient understanding and intelligence' to enable the child 'to understand fully what is proposed', then this Court has no further role in this matter. 200 Without needing to determine these questions, Nicholson CJ emphasised that there was a considerable difference between a child or young person deciding to use contraceptives as in Gillick and a child or young person determining upon a course that will 'change' his/her sex. It is highly questionable whether a 13 year old could ever be regarded as having the capacity for the latter, and this situation may well continue until the young person reaches maturity. 201 Bryant CJ in Re Jamie described medical treatment for 'something as personal and essential as the perception of one's gender and sexuality' as 'the very exemplar of when the rights of the Gillick-competent child should be given full effect'-yet concluded that the Family Court must determine the question of Gillick competence for stage two treatment. 202 The failure to respect a finding of Gillick competence manifested differently in Re Imogen, with Watts J finding that Gillick competence was not determinative if parents disagree about an adolescent's gender dysphoria diagnosis or treatment. 203 Despite their cautious approach in gender dysphoria cases, courts have stopped short of clearly articulating this as a special category of medical treatment. In the recent UK case of AB v CD, the High Court stated in relation to puberty blockers that [t]here are particular issues in relation to [puberty blockers] and there may well be justification for clinicians taking a very cautious approach in individual cases and erring on the side of having Court consideration and authorisation. However, the need for caution in imposing blanket rules, even for the most difficult categories of case, is important to have closely in mind. 204 The Court of Appeal in Bell went further in forging the nexus between the nature of stage one treatment for gender dysphoria and the issue of Gillick competence, observing that [t]he ratio decidendi of Gillick was that it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment. Nothing about the nature or implications of the treatment with puberty blockers allows for a real distinction to be made between the consideration of contraception in Gillick and of puberty blockers in this case[.] 205 It is important to note that the test for valid consent is met '[o]nce a patient is apprised of the broad terms of the intended procedure'. 206 However, clinicians remain vulnerable to civil action if they do not disclose all 'material risks' associated with treatment for gender dysphoria in accordance with their duty to inform under the law of negligence. This possibility was highlighted by both the Court of Appeal in Bell v Tavistock and the High Court in AB v CD. 207 The Court of Appeal in Bell clearly supported the capacity of Gillick-competent adolescents to make decisions about hormone treatment for gender dysphoria. However, it recognised 'the difficulties and complexities associated with the question of whether children are competent to consent to the prescription of puberty blockers and cross-sex hormones' and foreshadowed that [g]reat care is needed to ensure that the necessary consents are properly obtained. . . [as] clinicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested. 208 In highlighting the exposure of clinicians to civil action in individual cases, the Court of Appeal has left open the door for future court involvement in gender dysphoria cases, particularly where the Gillick competence of an adolescent is in dispute. Our view is that, even if gender dysphoria can be described as 'innovative' treatment, this should not impact on an adolescent's ability to give valid consent. Richards and Hutchison argue that although concerns around consent to innovative treatment (in relation to which healthcare providers do not know the full range of risks and benefits) are valid, 'they are issues that arise in the context of all medical treatment'. 209 Beattie similarly argues that deciding to take puberty blockers is no more complex than various other treatment decisions made by mature minors. 210 Giordano and others challenge the claim that adolescents lack the capacity to give valid consent to medical treatment for gender dysphoria, arguing that complex decisions with uncertain outcomes are 'ubiquitous' in medicine. 211 They suggest that [i]t might be the case that the bar for Gillick-competence is more difficult to reach for very complex decisions, but this is no a priori reason to believe that it cannot be reached. 212 Furthermore, as McMillan and Gavaghan point out, it is for clinicians-not courts-to decide when an adolescent has capacity to make these treatment decisions. 213 Courts have applied a higher bar for Gillick competence in cases involving refusal of lifesustaining treatment and have, on occasion, overruled the views of a Gillick-competent child to impose treatment. 214 This approach to refusal of treatment cases has, however, been broadly criticised as inconsistent with the principle of Gillick competence. 215 The High Court in Bell v Tavistock held that 'in order to achieve Gillick competence it is important not to set the bar too high'. 216 The Court added that [i]t is not appropriate to equate the matters that a clinician needs to explain, as set out in Montgomery, to the matters that a child needs to understand to achieve Gillick competence. 217 The Court of Appeal in Bell v Tavistock reinforced this view, observing that [t]he legal issue before the [High] Court was not a general inquiry into the content of information and understanding needed to secure the informed consent of a child, although we have great sympathy with the [High] Court given the large volumes of materials which informed that clinical issue. 218 We agree that it is important not to impose too high a standard for Gillick competence, as the information requirements for a valid consent are different to the legal standard imposed on doctors in relation to their duty to inform patients under the law of negligence. However, the requirements for a valid consent (to prevent an action in trespass) and the duty to inform (to avoid an action in negligence), are often conflated in this debate. Confusion on this issue is potentially compounded by frequent use of the term 'informed consent', both in clinical practice and by courts. This term confuses the information needed for a valid consent with the information that a doctor is required to provide to a patient to discharge their duty to inform. 219 As the High Court of Australia in Rogers v Whitaker pointed out [n]othing is to be gained by reiterating. . . the oft-used and somewhat amorphous phrase 'informed consent'. . . it is apt to mislead as it suggests a test of the validity of a patient's consent. 220 Although the courts have specifically warned against setting the bar for Gillick competence too high, our analysis of the gender dysphoria jurisprudence in Australia and the UK arguably demonstrates that a higher standard of capacity is imposed on adolescents diagnosed with gender dysphoria than that which applies to adults. This higher standard may be attributable to the specific test for Gillick competence as originally set out by the House of Lords, which has been interpreted as requiring the child to understand 'all aspects of the advice'. 221 Matthews and Smith suggest that the test outlined in Gillick 'requires not merely an understanding of the decision in question, but a full understanding of the decision and its effects'. 222 This interpretation of Gillick is controversial from a children's rights perspective, although it has some legal underpinnings. 223

VI. CONCLUSION: THE NEED FOR JUDICIAL CLARITY AND TRANSPARENCY AND A ROBUST DECISION-MAKING FRAMEWORK
In this article, we have shown that, despite their involvement in the medical treatment of gender dysphoria in children and adolescents, Australian and UK courts are reluctant to engage with current clinical and ethical debate around such a treatment. In Re Imogen, although Watts J noted that gender dysphoria treatment is evolving, he did not see it as the Family Court's role to explore the 'proliferation of academic and other writings' in recent years to make any findings about the long-term implications of current medical treatment for gender dysphoria. 224 We consider this approach to be problematic, given that Watts J relied on the fact of disharmony amongst experts to justify the Family Court's ongoing involvement in cases where there is a dispute or controversy. Watts J's approach also stands in contrast to that of the Full Court in Re Kelvin, where the majority engaged with the current clinical evidence to depart from Re Jamie, noting that 'the state of medical knowledge has evolved', 225 and that it was 'readily apparent that the judicial understanding of gender dysphoria and its treatment have fallen behind the advances in medical science'. 226 Gender dysphoria proceedings illustrate Windeyer J's observation of the law 'marching with medicine but in the rear and limping a little'. 227 It is important to understand the courts' rationale for their continued involvement in medical treatment for gender dysphoria in children and adolescents. We consider that greater transparency and clarity by courts about their role is necessary for two reasons. The first is to enable the judicial rationale to be openly critiqued and to evaluate whether court intervention is appropriate. Secondly, clarity about the basis for court intervention can help clinicians to address any genuine concerns about the current consent process. In particular, courts can provide valuable guidance about: (i) the nature of information that should be provided to adolescents and their parents (to obtain valid consent and to discharge the clinician's duty to inform) and (ii) how that information should be provided to enhance a Gillick-competent adolescent's capacity to use or weigh that information.
This article has also shown that treatment for gender dysphoria remains an area where there is often fervent disagreement, including amongst medical professionals, about the benefits and risks of treatment and long-term outcomes. It is likely that controversies and disputes will continue to arise, which will enliven the court's jurisdiction in these cases, including potential civil action against clinicians. We argue that the courts ought to engage with this emerging and ongoing debate in individual cases.
Overall, we recommend the development of a robust clinical decision-making framework for gender dysphoria treatment, to minimise court involvement in the future, to support Gillick-competent adolescents to make informed decisions about their current and future health, and to contribute to the ongoing body of evidence in this area of medicine. The Australian Standards of Care are a useful starting point. 228 The Royal Australian and New Zealand College of Psychiatrists Position Statement 103 on mental health needs of persons experiencing gender dysphoria also provides some guidance on decision-making processes. 229 We argue elsewhere that courts should be a last resort for resolving disagreements between Gillick-competent adolescents and their parents over gender dysphoria treatment. 230 We outline principles that could inform and guide the decision-making process and suggest how the law might be reformed to provide a framework that supports children and adolescents, families and clinicians in making complex decisions. 231 Specifically, an alternative regulatory framework to the court process should promote clarity, transparency, and consistency in decision-making about treatment of gender dysphoria in children and adolescents. 232 This could be achieved by clarifying the roles and obligations of healthcare professionals, providing ongoing training and support in the field of transgender health, implementing a regime for monitoring, recording and reporting long-term patient outcomes, and creating a process for resolving disputes that promotes reflective decision-making. 233 This dispute resolution process should be guided by the need to respect a Gillick-competent adolescent's decision to the greatest extent possible, and to explore viable options for accessing treatment. A robust decision-making framework should help to minimise disputes and the need for court involvement by addressing concerns and managing expectations for patients, their families, and the treating team.