Re: Adrian

[2017] FamCA 957

FAMILY COURT OF AUSTRALIA

RE: ADRIAN [2017] FamCA 957

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Gender dysphoria – Application for Stage 2 treatment for gender dysphoria – Where the child is 16 years of age – Consideration as to whether the child is Gillick competent – Where a declaration is made that the child is Gillick competent to consent to Stage 2 treatment.

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie (2013) FLC 93-547
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”)

APPLICANT: The Mother

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

By Court Order File Number is suppressed

DATE DELIVERED: 10 November 2017

JUDGMENT OF: McClelland J

HEARING DATE: 10 November 2017

REPRESENTATION:

By Court Order the names of Solicitors have been suppressed

Orders

THE COURT ORDERS THAT:

1. The Court finds that the child, Adrian, born … 2001 is competent to give informed consent to Stage 2 treatment for Gender Dysphoria in Adolescents and Adults as classified in the Diagnostic and Statistical Manual of Mental Disorders 2015 (Fifth Edition).

2. That the full name of the child, the child’s family members and their occupations, the child’s hospital, the child’s medical practitioners, the court file number, the state of New South Wales (where the proceedings were initiated) and any other fact that may identify the child shall not be published in any way and only anonymised reasons for judgment and orders will be released to non-parties without further contrary order of a Judge.

3. That no person is permitted to search the Court file in this matter without first obtaining the leave of a Judge.

4. That the Applicant and /or the child be permitted to provide a copy of the un-anonymised findings, reasons for decision and orders to persons involved in the child’s treatment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Adrian has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA

The Mother

Applicant

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. The Mother and the Father are the parents of Adrian, who was born in 2001 and is aged 16. Adrian has been diagnosed with gender dysphoria. Whilst Adrian was born genetically a female, he identifies as a male.

2. Adrian was diagnosed with gender dysphoria in September 2015, and formally changed his name to Adrian on his birth certificate and driver’s permit earlier this year.

3. This application is brought by Adrian’s mother. Adrian’s father is supportive of the application but is unable to join the mother in her application due to his poor state of health. An Independent Children’s Lawyer (“ICL”) was appointed by the Court on 28 August 2017. The State Department has acknowledged service and has not applied to intervene in the proceedings.

4. Adrian’s parents and treating specialists have given detailed consideration to the appropriate course of action for Adrian and propose that he commence Stage two treatment which would involve the daily administration of a male hormone. The treatment is typically administered around 15 or 16 years of age; it being noted that Adrian turned 16 this year and will shortly turn 17.

5. The treatment would seek to promote the development of male secondary sexual characteristics whilst suppressing ovarian function. The medication will cause permanent changes to Adrian’s body. Adrian and his parents are aware that it is therefore a big decision.

6. The mother’s application asks the Court to make a finding that Adrian is “Gillick competent” to consent to Stage two treatment or, in the alternative, that the Court authorise the administration of Stage two treatment.

7. The mother’s application is supported by an expert report prepared by Professor M dated 28 March 2017, a paediatric endocrinologist who specialises in gender dysphoria, who interviewed Adrian and his parents.

8. Dr D, who is an adolescent psychiatrist, has also provided a report dated 15 May 2017. Dr D has been treating Adrian since November 2016.

The Law

1. The phrase “Gillick competent” is derived from the English decision of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 in which Lord Scarman said at paragraphs 188-189:

   I would hold that as a matter of law the parental right to determine whether or not their minor child ... will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.  Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances. 

2. In Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) the High Court of Australia confirmed the principle as being applicable in this jurisdiction at paragraphs 19-20:

   A minor is, according to [the Gillick principle] capable of giving informed consent when he or she “achieves a sufficient understanding and intelligence to enable to him or her to understand fully what is proposed”.

   This approach, although lacking the certainty of a fixed aged rule, accords with experience and psychology. It should be followed in this country as part of the common law.

3. More recently, in Re: Jamie (2013) FLC 93-547; [2013] FamCAFC 110 at [140], Bryant CJ summarised the role of the Court in the treatment of a child with gender dysphoria as follows:

   b) If there is a dispute about whether treatment should be provided (in respect of either stage one or stage two), and what form treatment should take, it is appropriate for this to be determined by the court under s 67ZC.

   c) In relation to stage two treatment, as it is presently described, court authorisation for parental consent will remain appropriate unless the child concerned is Gillick competent.

   d) If the child is Gillick competent, then the child can consent to the treatment and no court authorisation is required, absent any controversy.

   e) The question of whether a child is Gillick competent, even where the treating doctors and the parents agree, is a matter to be determined by the court.

4. Her Honour Justice Finn made the following further comments at paragraph 188:

   If the court was completely satisfied of the child’s capacity to consent to stage two treatment, it would be unnecessary for it to have to authorise the treatment. That could be left to the child. But if the court had any doubt about that capacity, then it would have to determine for itself the question of whether the stage two treatment should be authorised.

5. His Honour Justice Strickland said at paragraph 196:

   Whether the child is able to fully understand and give informed consent to stage two treatment, and thus court authorisation is not required, is a threshold issue that the court must decide. This is because of the requirement by the High Court majority in Marion’s case that it is for the court to authorise medical treatment that is irreversible where there is a significant risk of the wrong decision being made as to the child’s capacity to consent to the treatment, and where the consequences of such a wrong decision are particularly grave.

6. Whilst the Full Court (Bryant CJ, Finn and Strickland JJ) was in agreement as to the outcome of the appeal, Finn and Strickland JJ both emphasised (at 87,332 and 87,333 respectively) the importance of the Court authorising Stage two treatment in circumstances where the irreversible nature of the treatment could have grave consequences for a child, should an incorrect decision be made as to their competency to consent.

7. In this matter it is significant that Adrian wishes to commence Stage two treatment. He has formed that view on the basis of expert advice and it is supported by his parents, Dr D, Professor M, and the ICL.

Evidence

Adrian’s parents

1. In terms of the relevant evidence from Adrian’s parents, it is noted that they each affirmed affidavits in support of the application on 8 September 2017. The mother also relies upon an affidavit filed on 22 August 2017. 

2. By way of summary, Adrian’s mother deposed in her affidavit filed on 22 August 2017 that: 

   a)Adrian, from early childhood, did not like dolls but liked to play outside with boys and watch television shows for boys. After befriending a transgender student when he was in Year 8 at school, Adrian began researching about psychology and sexuality. He came across a young transgender girl in his research and thought “this makes sense”; “I think I am that thing”. When Adrian was chatting to people online, he would pretend to be male.[1]

   b)On 20 April 2015, Adrian experienced a mental health episode by consuming approximately six sleeping tablets. Following this event, Adrian informed his mother of his gender identity while he was in hospital recovering, disclosing that he had known he was different since the age of 12. Adrian has been living as a male since 20 April 2015.[2]

   c)Adrian attended hospital on 8 September 2015 for diagnostic tests and was diagnosed as having gender dysphoria by his treating psychiatrist Dr S and his treating psychologist Dr H.[3]

   d)Adrian did not commence stage one hormone treatment because he was 15 when he was diagnosed with gender dysphoria such that his transition through puberty was almost finished.[4] This decision was supported by Professor M, who states at page 1 of his report that “In view of his age and late puberty status, stage 1 therapy (puberty suppression) was not considered or undertaken”.

   e)On 4 May 2016 Adrian was impacted by a further mental health episode.[5]

   f)Since 2016, Adrian has become increasingly uncomfortable with his body, has refused to leave the house, and has struggled in his social interactions. Adrian has been unable to make strong connections with his peers and has changed schools 4 times in the past 4 years, resulting in the decision to educate him via Distance Education.[6]

   g)Adrian’s mental health has suffered severely due to his dysphoria. Adrian is also engaging in breast binding which has put him at risk of fainting, and is limiting his food intake significantly in an attempt to lessen the development of breasts and pronounced hips.[7]

   h)As Adrian is aware of the impact of the treatment on fertility, in 2016, Adrian underwent egg storage and 16 eggs have been preserved.[8]

   [1] Affidavit of the Mother filed 22 August 2017 at page 9.

   [2] Ibid at [11].

   [3] Ibid at [13].

   [4] Ibid at [17.

   [5] Ibid at [12].

   [6] Ibid at [15].

   [7] Ibid at [16].

   [8] Ibid at 18.

3. Adrian’s mother states that hormone treatment will “better enable him to present as male and will therefore be of enormous benefit to his mental health”[9], and that she believes Adrian is “well aware of the potential risks associated with stage two treatment”.[10] She has spoken with Adrian about the risks and says that “he has indicated on numerous occasions that he understands and is comfortable with the risks”. [11]

   [9] Ibid.

   [10] Ibid at [20].

   [11] Ibid.

4. Adrian’s father is supportive of Adrian obtaining Stage two treatment and is concerned that “unless Adrian is able to access necessary hormone therapy, his anxiety and depression will intensify”.[12] Adrian’s father is also of the view that the treatment will have:

   A significantly beneficial effect on Adrian’s state of mind and go a long way toward helping him overcome much of the anxiety and associated depression from which he now suffers.[13]

   [12] Annexure NT1 to Affidavit of the Father filed 8 September 2017.

   [13] Ibid.

5. Adrian’s father, in Annexure NT1 to his affidavit, states that Adrian fully understands that hormone therapy is not a “magic wand” that will resolve all of the obstacles he is dealing with, but that he comprehends that it is a prolonged journey that “will lead to reconciling his world perception with his biologically determined physical form”.

6. Adrian’s father further submits that:

   Commencing hormone therapy and having the capacity to make all decisions regarding that treatment will give Adrian the sense that he is no longer ‘treading water’ but actually doing something tangible to reconcile his self-perception with that of the world around him. This will give him that most important ingredient required by human nature when it is dealing with any obstacle, namely, hope for the future”.[14]

   [14] Ibid.

Dr D and Professor M

1. In respect to the report from Dr D dated 15 May 2017, Dr D swore an affidavit in support of the mother’s application on 7 August 2017 that was filed on 22 August 2017, annexing her report dated 15 May 2017.

2. Dr D is a child and adolescent psychiatrist who has worked in that capacity for the past 14 years. Dr D is currently employed in that capacity at a private clinic. Dr D is Adrian’s treating practitioner and prepared her report dated 15 May 2017 after being requested to do so by the mother’s solicitors. Dr D has seen Adrian since November 2016.

3. At page 17 of her affidavit, Dr D states that Adrian is “capable of making an informed decision about the treatment of testosterone” and that she has discussed the effects and side effects of the treatment with him. Dr D also states that she has discussed with Adrian his expectations of the treatment and the potential risks involved, and has come to the conclusion that he is “deemed capable of making an informed decision”.

4. Dr D also reports that “Adrian’s health and emotional wellbeing is almost certain to deteriorate without testosterone. His mental and physical health is dependent on his perception of himself as male”.[15] Dr D reported that Adrian’s mood has been adversely affected by the delay in accessing testosterone and that Adrian reported to him that if he did not receive this treatment he will have “a breakdown” of his mental health.[16]

   [15] Affidavit of Dr D dated 15 May 2017 at page 16.

   [16] Ibid.

5. Dr D notes that on the Gender Stability and Preoccupation Questionnaire (which is a validated rating scale measuring gender dysphoria), Adrian rated 38 (where a score of 28 and over is highly indicative of gender dysphoria). Dr D also confirmed that there are no alternative or less invasive treatments available for Adrian at this time.

6. Dr D confirmed that both of Adrian’s parents are fully informed about what Stage two treatment entails and are in agreement that the treatment is necessary for Adrian’s future health and well-being.

7. Professor M is a paediatric endocrinologist whose specialist practice involves seeing young people with gender dysphoria and the management of clinical situations in which either suppression of puberty or induction of puberty is needed. Professor M has been in specialist practice since 1991. He is currently employed as Senior Staff Specialist at X Hospital and is also appointed as Clinical Professor at a university.

8. Professor M first met with Adrian on 19 May 2016 to discuss stage two treatment. At page 2 of his report, Professor M addresses Adrian’s understanding of the effects of stage two treatment, reporting that Adrian is “sufficiently informed and capable of making this decision” and that he understands that many aspects of stage two treatment are irreversible or only partially reversible.

9. Professor M noted that in the meetings he has had with Adrian, Adrian consistently expresses the view that he wishes to continue living in the male role and to pursue stage 2 therapy and androgen therapy. Professor Mfurther noted:

   I am of the opinion that gender dyphoria remains firmly entrenched and that Adrian has sufficient knowledge and understanding of the effect of phase 2 therapy to proceed with that. He understands that many aspects of the androgen therapy are irreversible or only partially reversible. I have given him the opportunity to raise any questions or express any doubts about his intended course and he says that he has none. He also understands that he could return to a female gender role but has firmly expressed that he does not want to do that.[17]

   [17] Affidavit of Professor M dated 22 August 2017 at page 43.

The proposed treatment and its effects

1. In terms of the proposed treatment and its effect, Adrian’s proposed Stage 2 treatment would involve daily administration of testosterone. This treatment would initiate secondary sexual characteristics and appearance of the male sex, including facial hair, deepened voice, increased muscle mass/strength, altered body fat distribution, cessation of menses, clitoral enlargement and vaginal atrophy as well as skin oiliness/acne and scalp hair loss.[18] Professor M notes that effects would also include the development of male sexual hair distribution, male body habitus and muscular development, enlargement of the clitoris, enlargement of the larynx, deepening of the voice and the suppression of ovarian function.[19]

   [18] Affidavit of Dr D dated 15 May 2017 at page 15.

   [19] Affidavit of Professor M dated 22 August 2017 at page 43.

2. These biological changes would facilitate Adrian’s social and physiological transition as a male, which would substantially alleviate the gender dysphoria he suffers from. That is, Adrian would be able to achieve a greater congruence between his sense of self and how he is perceived and treated by others. Dr D notes that in order for Adrian to achieve this physical appearance and acceptance, his future aspiration is dependent on the administration of testosterone.[20] 

   [20] Affidavit of Dr D dated 15 May 2017 at page 15.

3. In that respect, the ICL has referred to the Standards of Care for the Health of Transsexual, Transgender, and Gender Non-Conforming People published by the World Professional Association for Transgender Health in 2012 (“the Standards”).

4. I note page 21 of those Standards state that refusing timely medical interventions for adolescents might prolong gender dysphoria and contribute to an appearance that could provoke abuse and stigmatization, and that, as the level of gender-related abuse is strongly associated with the degree of psychiatric distress during adolescence, withholding puberty suppression and subsequent feminizing or masculinizing hormone therapy is not a neutral option for adolescents (citations omitted).

5. Dr D noted that the risks of testosterone in natal females are polycythaemia, weight gain, acne, androgenic alopecia (balding), sleep apnoea, elevated liver enzymes, hyperlipidaemia, destabilisation of certain psychiatric disorders, cardiovascular disease, hypertension, Type 2 diabetes, loss of bone density, breast cancer, cervical cancer, ovarian cancer and uterine cancer.[21]

   [21] Ibid at page 16.

6. Dr D also noted that Adrian’s health and emotional wellbeing is “almost certain to deteriorate without testosterone”, and that Adrian’s “mental and physical health is dependent on his perception of himself as male”.[22]

   [22] Ibid.

7. Professor M notes that the effects of treatment include the potential loss of future female fertility, and that many of the changes noted above are irreversible or partly irreversible.[23]

   [23] Affidavit of Professor M dated 22 August 2017 at page 43.

8. I further note that the Standards confirm at page 35 that masculinizing hormone therapy may lead to irreversible physical changes. The Standards also note at page 36 that most physical changes occur over the course of two years, although the amount of physical change and the exact timeline of effects can be highly variable.

Adrian’s Gillick competence

1. In terms of Adrian’s Gillick competence, Dr D reports:

   I feel that Adrian Thompson is capable of making an informed decision about the treatment of testosterone. We discussed the effects and side effects of testosterone, expectations of treatment and potential risks involved in taking this treatment option.[24]

   [24] Affidavit of Dr D dated 15 May 2017 at page 17.

2. Professor M reported:

   In the meetings I have had with Adrian he consistently expresses the view that he wishes to continue living in a male role and pursue phase 2 therapy with androgen therapy. I am of the opinion that the gender dysphoria remains firmly entrenched and that Adrian has sufficient knowledge and understanding of the effects of phase 2 therapy to proceed with that. He understands that many aspects of androgen therapy are irreversible or only partially reversible. I have given him the opportunity to raise any questions or express any doubts about his intended course and he has said that he has none. He also understands that he could return to a female gender role but has firmly expressed that he does not wish to do that.[25]

   [25] Affidavit of Professor M dated 22 August 2017 at page 43.

3. Professor M further noted that:

   …from an endocrinology perspective I feel that Adrian is sufficiently informed and capable of making this decision and I see no reasons for phase 2 therapy not to proceed.[26]

   [26] Ibid.

4. Adrian’s father notes in his affidavit filed 8 September 2017 that:

   Adrian I have spoken frankly and at length on a number of occasions about the ramifications of commencing hormone therapy with testosterone. There is no doubt in my mind that Adrian fully understands that such therapy is not some sort of ‘magic wand’ which will resolve the many obstacles he must deal with. He fully comprehends that it is the commencement of a journey which, over a prolonged period of time, will lead to reconciling his world perception with his biologically determined physical form.

5. Adrian’s mother states at paragraph 20 of her affidavit filed on 22 August 2017:

   I believe that Adrian is well aware of the potential risks associated with stage two treatment. I have spoken about the risks and he has indicated on numerous occasions that he understands and is comfortable with the risks, demonstrated by the fact that he is willing to inject himself with medication.

Findings

1. Accordingly, the findings I make are as follows:

   1.I accept the unchallenged evidence outlined above of Adrian’s parents and, particularly, Dr D as Adrian’s treating psychiatrist and Professor M as an expert in this field.

   2.I am satisfied that Adrian is competent to fully understand the nature and consequences of Stage 2 treatment, including any risks associated with such treatment.

   3.I am satisfied that Adrian is competent to make his own decision in relation to Stage 2 treatment, and is competent to consent to that treatment occurring.

2. It is therefore appropriate for the Court to make a finding that Adrian is competent at law to consent to Stage 2 treatment for gender dysphoria, and for Adrian to be authorised to make his own decision in relation to that treatment, and on that basis I make the orders as set out in the minute of order as proposed by the Applicant.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 10 November 2017.

Associate: 

Date:  22 November 2017.