Queensland’s controversial ban on puberty blockers and other hormone therapies is unlawful because of a failure to properly consult health executives on a decision affected by political interference, a court has heard.
The supreme court in Brisbane on Wednesday heard the ban should be overturned as part of a legal challenge launched by the mother of a transgender child. The mother cannot be identified for legal reasons.
Her lawyers told the court that Queensland Health’s director general, Dr David Rosengren, was required by law to consult with the executive of any service affected “in developing a health service directive” before he issued the order, banning such transgender hormone therapies for new patients aged under 18, on 28 January.
They also told the court, which is conducting a judicial review of the ban, that the health minister, Tim Nicholls, inappropriately directed Rosengren to order the directive – or that such an order was inappropriately taken into account.
Lawyers for Queensland Health denied the claims, arguing there was a valid consultation about the directive and that it followed legally acceptable discussions between Nicholls and Rosengren.
On the day the directive was issued, the state’s health executives were called to a Microsoft Teams meeting at 10am for consultation on the decision, which lasted 22 minutes.
At the same time as that meeting, Nicholls was announcing the decision at a press conference, the court was told.
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Mark Steele KC, representing the mother, said Rosengren had signed off on publishing the health service directive an hour earlier and had repeatedly urged staff to ensure it was published at 10.30am.
The directive was published at 11.06am.
Steele told the court that Rosengren must have done so to line up with the end of Nicholls’ press conference.
“That can’t be genuine consultation if it’s just a fait accompli,” Steele told the court.
Steele argued, that under the act, the director general “must act independently, impartially and fairly, and is not subject to the direction of minister”. But he told the court Nicholls had interfered with the process by directing Rosengren to make the decision.
But Jonathan Horton KC, acting for Queensland Health, told the court that it was appropriate for cabinet to be involved and denied that the director general had been made to make the decision.
“It was a decision-making process in which there was both political participation and executive participation. Now that is appropriate,” he said.
He told the court it was “a kind of decision which was made by much higher levels and with much wider considerations”.
“These decisions were being made by the head of the department and by the chief policymaking body of the state [the state cabinet], and that colours the consultation.”
Neither Rosengren nor Nicholls were called to give evidence.
The court also heard few people knew that the directive would be made and that an invitation to the Teams meeting with health service executives – sent the day before the announcement – didn’t refer to the decision.
Frank Tracey, who as chief executive of Children’s Health Queensland oversees the state’s children’s gender service, told the court that he had been notified the day before the meeting that a directive was to be issued.
But he was not told it was a full ban on new patients until the meeting began, when he saw information about the directive on his screen, the court heard.
“So that required me to immediately engage my senior clinicians, our executive director of medical service and the clinicians responsible for the gender service, and work our way through how we would respond and reorientate our service to meet the requirements of the health service directive,” he said.
Horton told the court that the consultation was “abbreviated” but said Tracey was given earlier notice.
He said “this was not a consultation which could be about whether or not to do it but, in fact, about the adjustment of its terms, for example”.
Horton also said the directive was amended during the consultation period. Judge Peter Callaghan said the only thing that had changed was the grammar.
The court adjourned for Judge Callaghan to consider his judgment.
