Restricted medical treatments for people with variations in sex characteristics

This page has information about applying for restricted treatments for people:

with variations in sex characteristics, and
who do not have the capacity to make decisions about their own medical treatment.

Intersex is also a word used for people with variations in sex characteristics.

Restricted treatments mean changing a person’s sex characteristics.

This can be:

temporary
permanent.

Any procedure that makes changes which are only reversible with more medical treatments is a restricted medical procedure. This can include the prescription of medications.

The law does not cover circumcision of the penis.

A ‘prescribed person’ is someone who does not have capacity to make decisions about their own treatment.

What is a variation in sex characteristics?

A variation in sex characteristics is when a person is born with:

naturally occurring sex characteristics that do not fit the typical definitions for male or female bodies.

A variation in sex characteristics means:

a congenital condition that involves atypical sex characteristics, and
includes a condition prescribed by regulation, but
does not include a condition prescribed by regulation not to be a variation in sex characteristics.

Excluded conditions include:

bladder exstrophy
epispadias
hypospadias, other than proximal hypospadias with cryptorchidism
polycystic ovary syndrome
undescended testis.

Medical or surgical treatment for excluded conditions do not require an approved treatment plan.

However, treatments for excluded conditions that permanently change the person’s sex characteristics are considered reportable treatments.

There are reporting requirements for this.

Law protecting the rights of people with variation in sex characteristics

The ACT has introduced the Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 to protect children born with variations to their sex characteristics. This law also applies to people under guardianship who may not be able to make decisions for themselves.

Under the law, a parent, guardian or health practitioner may apply for an individual treatment plan for a restricted treatment on:

a child, or
person under a guardianship order with variations in sex characteristics.

Some medical practitioners can also apply for a general treatment plan.

Your application must meet the eligibility requirements set out in the Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023.

Email vscboard@act.gov.au for further information about general treatment plans.

After receiving an application, the Restricted Medical Treatment Assessment Board (the Board) must conduct a public consultation as directed under the legislation.

Anyone may provide a written submission on the general treatment plan application to the Board during the consultation period.

During the consultation period, submissions received will be published on the ACT Government YourSay page (with some exceptions).

Applying for an individual treatment plan for people with variations in sex characteristics

A person’s GP or specialist can apply for an individual treatment plan. The person’s parents or guardian may also apply. In certain cases, somebody else may be the applicant.

You only need to apply for an individual treatment plan if you are:

seeking to perform a restricted medical treatment on someone who cannot consent themselves to the treatment.

Consideration of other options

Before you apply, you should consider what alternatives there are to the restricted medical treatment.

Alternative treatment options may include putting off treatment until the person has the capacity to make their own decisions about their medical treatment.

Alternatives may also be treatments that are less invasive or less permanent. It is important to actively consider these options at an early stage.

If you do apply to perform restricted medical treatment, you must show that alternative treatments have been fully considered.

For further information about alternative options, contact the Variation in Sex Characteristics Psychosocial Service located at the Canberra Hospital. This service provides support to children and young people with a diagnosis of variation in sex characteristics or potential variation in sex characteristics.

Provision of information and considering a patient’s wishes

Before you apply, you will need to have:

supplied adequate information about the proposed treatment, and
its effects to the patient and to their decision-makers (usually parents).

The patient may need support to:

participate in decision‑making about the treatment plan, and
communicate their wishes freely.

Contact the Variation in Sex Characteristics Psychosocial Service located at the Canberra Hospital. This service provides support to children and young people with:

variation in sex characteristics, or
potential variation in sex characteristics.

Variations in Sex Characteristics Restricted Medical Treatment Assessment Board

The Variations in Sex Characteristics Restricted Medical Treatment Assessment Board receives all applications for restricted medical treatments for people with variations in sex characteristics.

The Assessment Board president will appoint a committee to assess each application.

Applying for an individual treatment plan

There are several sections in the application form. Some sections need supporting documents.

Email your application request to the Restricted Medical Treatment Assessment Board: vscboard@act.gov.au.

They will approve your plan if it meets the requirements of the law.

Information needed for an individual treatment plan application

You will be asked to give evidence that:

the person’s decision-making capacity has been assessed
you have considered alternatives
you have given the person information, where appropriate
you have considered, where possible, the wishes of the person.

Background information including past medical history and the proposed treatment plan will also be collected. This will allow them to consider all information.

How the Assessment Board makes its decision

When you apply for an individual treatment plan to the Assessment Board, the president will form an assessment committee to assess the application.

The committee can either:

approve the treatment plan
refuse the plan
approve the plan with additional conditions.

The committee will only approve an application if it meets the requirements of the law.

If the treatment plan nearly meets the requirements, the committee may:

approve it with conditions so that it meets the requirements of the law, or
ask for further information.

The committee does not make its decision based on the personal opinion of any of the members. Approval is only based on whether the application meets the requirements of the law.

Reviewing your application

The committee must make its decisions based on whether the evidence shows your application meets the requirements of the law.

The committee will rely on your application as the primary source of information. Committee members can use any relevant evidence to inform themselves. If they use evidence outside your application, they must:

inform you
provide you with an opportunity to change your application
provide you with an opportunity to respond.

Evidence can:

include any relevant information that is available to help determine the facts on which the committee needs to make its decision
be scientific or medical, including your own expertise if you are a medical professional.
come from a range of sources
be based on diverse types of expertise and from various fields
include relevant lived experience.

Evidence may also include the wishes of the person. The committee must consider these wishes for certain issues.

If the assessment committee needs further evidence from you, they may contact you to ask for it. You must give this information within the time they ask if you want them to keep considering the application.

Requesting further information

The committee assesses the information you include in your application.

The committee is able to rely on:

the expertise of the members themselves
any other information available to them
speaking directly to the person to whom the application applies, with the decision-maker’s consent.

The committee may also use other information.

This can include:

consulting with other health professionals and specialists who are not involved in your application
speaking with support groups for people with variations in sex characteristics
speaking with the Children and Young People Commissioner.

When the committee seeks advice from other parties or experts, it will not:

identify the person involved, without the written consent of a decision-maker.

If you are a parent or guardian, the committee must not:

reveal the identity of your child or the person under your guardianship, without your consent.
use any information outside what you include in your application even if it is their own expertise.

The Assessment Committee must give you the information they receive from external sources.

You will have the chance to respond to that information, or change your application, if needed.

The Assessment Committee can ask for further information from you to help it make a decision.

You will be given time to do this. However, if this is not given in time, the Assessment Board may refuse your application.

Assessing discrimination, stigmatisation or bullying

People living with a variation in their sex characteristics experience higher levels of discrimination and stigmatisation. This can impact their overall wellbeing and psychological state.

If a person is at risk of stigmatisation or discrimination, performing invasive and irreversible procedures should not be a response. Rather, the approach should be addressing stereotypes and the direct sources of stigmatisation and discrimination. The source of the harm is the existence of, and lack of protection from, discrimination. The person’s body is not the source of the harm.

Assessment committees will consider all other reasons for a permanent medical treatment. This may include evidence of psychological harm more generally or to the person's mental health if these do not arise only from risks of stigmatisation or discrimination.

The assessment committee

The committee will have 5 members with qualifications or experience in:

human rights
ethics
medicine
psychosocial support (psychology and social work primarily)
lived experience of having a variation in sex characteristics or caring for someone with a variation.

In assessing your application the members of the committee must:

put aside any of their individual views
apply the requirements of the law.

They can use their expertise to help consider your application.

If they do, they must tell you and give you an opportunity to change your application if you need to.

To approve your plan, at least 3 out of the 5 committee members must agree to it.

Results of your application

Following the review of your plan, the Assessment Board will give you one of these assessments:

approved
approved with conditions
refused

Whether your plan is approved, refused, or approved with conditions, the committee must give reasons for its decision.

The reasons describe why the committee made its decision, what facts it considered relevant, and what evidence the committee relied on.

Approved

If your application is approved, the restricted medical treatment can be undertaken in accordance with the individual treatment plan, and only in accordance with it.

A copy of the decision will be given to you by the Assessment Committee, as well as to each decision maker involved. The Assessment Committee will also give you a date after which the decision will expire, no later than three years after the day it is given.

Following the approval of your individual treatment plan, it is vital that the treating team still obtain informed consent from the decision makers for the person.

In the case of an adult under guardianship, consent may need to be obtained from the ACT Civil and Administrative Tribunal (ACAT) for a prescribed medical procedure under the Guardianship and Management of Property Act 1991(s70).

Approved with conditions

If your plan is approved with conditions, the treatment must be conducted within these conditions in addition to the proposed treatment plan.

Where there is a difference between your application and the conditions, you must follow the conditions.

It is vital that the treating team still undertake their clinical duty in obtaining informed consent, as they would with any procedure.

In the case of an adult under guardianship, consent may need to be obtained from the ACT Civil and Administrative Tribunal (ACAT) for a prescribed medical procedure, under the Guardianship and Management of Property Act 1991 (s70).

You may apply in writing for a review of your case within 28 days.

Refused

If your application is refused or approved with conditions, the Assessment Committee will give an internal review notice to you and each decision maker involved. If your plan is refused, no restricted medical treatment can occur unless an approval is later given.

Appealing the Assessment Board's decision

If your application is refused, or approved with conditions, you may apply for internal review.

When you receive the decision of the assessment committee, the committee should inform you that the decision can be reviewed, unless the application is approved without conditions.

If you decide you would like to apply for a review of the decision, contact vscboard@act.gov.au.

The review application allows you to give further evidence and asks you to give your reasons for making the application. You have 28 days after being notified of the original committee’s decision to apply for an internal review. The application for review will be attached to your decision notice.

An internal review committee will conduct the review. None of the members who decided your original application will sit on the internal review committee. The review committee may only change the decision if there is a majority agreement.

You should be aware that the decision of the review committee may be less favourable to you than that of the original decision. The review committee has the same obligation to procedural fairness as the original committee. While your review application is considered, the original decision remains in effect.

You may appeal a decision of the review committee to the ACT Civil and Administrative Tribunal (ACAT).

ACAT may either confirm the decision or direct the review committee to reconsider the application, potentially with directions or recommendations from ACAT.

Reporting requirements

The Variations in Sex Characteristics (restricted Medical Treatment) Act 2023 (the Act) includes mandatory reporting requirements. The doctor responsible for treatment is required to report restricted medical treatment/s performed on a child without decision making capacity, or an adult under guardianship (a prescribed person). Restricted medical treatment must be reported within 3 months of the treatment starting.

The reporting requirements under the Act apply to all reportable treatments.

Reportable treatments include:

any restricted medical treatments performed under an approved treatment plan.
any urgent restricted medical treatment performed (urgent treatments are not restricted by the Act, and can be undertaken without a treatment plan).
any treatment undertaken on a person’s sex characteristics that would be a restricted medical treatment if the diagnosed condition were not excluded.

For all reportable treatments, the treating doctor must write to the president of the VSC Assessment Board, reporting:

That the treatment was undertaken
If the treatment was undertaken under a treatment plan, and details of the plan (treatment/s and date/s)
The prescribed person’s age
The prescribed person’s variation in sex characteristic
Anything else prescribed by regulation.

For ongoing courses of treatment, or recurring treatments, a report should be:

provided within 3 months of the treatment starting
state the timespan over which the treatment is expected to be provided.

How to report

Complete the Reporting Restricted Medical Treatment Form.

The completed form should be emailed to vscboard@act.gov.au.

Questions regarding VSC reporting can be directed to the same email address.