Re: Ashton

[2017] FamCA 333

FAMILY COURT OF AUSTRALIA

RE: ASHTON [2017] FamCA 333

FAMILY LAW – CHILDREN – GENDER DYSPHORIA – Where the applicants are the parents of a child diagnosed with Gender Dysphoria –where the applicants seek a finding that the child is Gillick competent to consent to Stage Two treatment for Gender Dysphoria – where the child’s treating medical experts and parents support the child commencing Stage Two treatment – assessment of whether 17-year-old child is Gillick competent to consent to the medical treatment – finding that the child is competent to consent and authorised to make his own decision about Stage Two treatment.

Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), ss 67ZC, 68L, 69H(1), 78, 97(2)(c), 100B(2), 121
Family Law Rules 2004 (Cth), rr 4.08(a), 4.09(3), 4.10

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie [2013] FamCAFC 110; 50 Fam LR 369
Re K (1994) FLC 92-461
Re Kelvin [2017] FamCA 78
Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

FIRST APPLICANT: The Mother

SECOND APPLICANT: The Father

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 23 May 2017

ORDERS MADE: 15 May 2017

JUDGMENT OF: Thornton J

HEARING DATE: 15 May 2017

REPRESENTATION

By Court Order the names of Counsel and Solicitor have been suppressed

Orders made 15 May 2017

1. That these proceedings be known by and referred to as ‘Re: Ashton’.

2. That pursuant to s 97(2)(c) of the Family Law Act 1975 (Cth) (“the Act”), leave be granted for the proceedings to be heard ‘in camera’.

3. That pursuant to s 121 of the Act, the full name of … born … 2000 – now known and referred to as “Ashton” – Ashton’s family members and their occupations, any medical practitioner and hospitals, Ashton’s school and any staff at the school, the court file number, the State of Australia in which the proceedings were initiated, the names of the applicants’ legal representatives, any witnesses, and any other fact or matter that may identify Ashton shall not be published in any way and only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number, lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of a Judge.

4. That the applicants be granted leave to withdraw paragraphs 1, 2 and 4 of the Initiating Application filed 11 May 2017.

5. That until further order, pursuant to s 100B(2) of the Act, Ashton be permitted to be present and remain in court during the hearing of the application filed 11 May 2017.

6. That the Court is satisfied that … born … 2000 (“Ashton”) is competent to consent to the medical treatment described in the Initiating Application filed 11 May 2017 and the Court authorises Ashton to make his own decision in relation to that treatment.

7. That the treatment described in the Initiating Application filed 11 May 2017 is the administration of testosterone for the treatment of Gender Dysphoria (Stage Two Treatment) in such manner, in such dose and with such frequency as determined by and under the guidance of Ashton’s treating medical practitioners, including but not limited to Dr P and Dr M of the X Hospital.

8. That notwithstanding paragraph (3) of these orders, the applicants to these proceedings shall be at liberty to collect by hand, a full copy of the orders and any reasons for judgment published thereunder with all of the identifying details which are otherwise excluded by paragraph (3) of these orders and such documents may be provided to the treating medical practitioners.

9. That the applicants be at liberty to provide a copy of the unanonymised orders and the unanonymised reasons for judgment to all persons involved with Ashton’s treatment.

10. That no person shall be permitted to search the court file in this matter without first obtaining the leave of a Judge of the Court.

11. That the applicants’ Initiating Application filed 11 May 2017 be otherwise dismissed.

12. That the written reasons for judgment in this matter be delivered on a date to be fixed.

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 Ashton 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

FILE NUMBER: By Court Order File Number is suppressed

The Mother

First Applicant

And

The Father

Second Applicant

REASONS FOR JUDGMENT

introduction

1. These are my reasons for making an order finding that Ashton, aged 17, is competent to consent to his own medical treatment. The treatment proposed is commonly known as Stage Two treatment for Gender Dysphoria. In this case it involves the administration of testosterone.

2. Ashton was born female but now identifies as male.  His parents became aware that he identified as a male in February 2015 and Ashton transitioned to living as a male in 2015. Ashton has now transitioned socially to living as a male and he is known to family and friends as male. Ashton has not received Stage One treatment for Gender Dysphoria.

3. On 11 May 2017 Ashton’s parents brought an urgent application for a finding that he is competent pursuant to the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick competent”) to consent to his own Stage Two treatment.  As the parents of Ashton, the applicants have standing to make this application.[1]

   [1] Family Law Rules 2004 (Cth), r 4.08(a).

4. Due to the sensitive nature of the subject matter of these proceedings, I made an order that the proceedings be conducted in camera pursuant to s 97(2)(c) of the Family Law Act 1975 (Cth) (“the Act”). I also made the usual orders preserving Ashton’s anonymity, which include not only protecting his name, but also other information such as the names of his family, the medical practitioners, lawyers and other professionals and entities involved.

The Law: “Gillick” Competence

1. The term “Gillick” refers to the English case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“the Gillick case”).

2. In Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) the High Court said that the view of the House of Lords in the Gillick case represented the common law in Australia. 

3. In the Gillick case, Lord Scarman recognised the underlying principle in the case law that parental right yields to the child’s right to make his/her own decisions when he/she reaches a sufficient understanding and intelligence to be capable of making up his/her own mind on the matter requiring decision.  Lord Scarman referred to the spirit and principle of the law captured by Lord Denning MR when he said that:

   The common law can, and should, keep pace with the times. It should declare … that the legal right of a parent to the custody of a child ends at the eighteenth birthday; and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.[2]

   [2] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 129 (Lord Scarman), quoting Hewer v Bryant [1969] 3 All ER 578, 582 (Lord Denning MR).

4. In the Gillick case Lord Scarman said at [188]-[189]:

   … I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 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.

5. In Marion’s case, Mason CJ, Dawson, Toohey and Gaudron JJ, in discussing the Gillick principle enunciated by Lord Scarman, said as follows at [237]-[238]:

   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 him or her to understand fully what is proposed”.

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

   (References omitted).

6. In Re: Jamie [2013] FamCAFC 110; 50 Fam LR 369 (“Re: Jamie”) the Full Court held that Stage Two treatment of Gender Dysphoria (administration of testosterone or oestrogen) was a medical procedure that required court authorisation, unless the Court found that the child was Gillick competent and thus able to fully understand and give informed consent to Stage Two treatment at the time it was to commence. The Full Court found that it was the Court’s responsibility to assess whether or not a particular child was Gillick competent.

7. In summarising her conclusion in Re: Jamie Bryant CJ relevantly said (inter alia) at [140]:

   …

   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.

   (Original emphasis).

8. In that same case Finn J, whilst expressing reluctance to impose upon the child and his/her parents the costs and stress of further court proceedings, particularly when the Court may ultimately reach the same decision which the child and his/her parents had already reached with the child’s doctors, stated at [186]:

   Nevertheless, I have concluded that at least the question of the child’s capacity to consent to treatment which has the irreversible effects of stage two treatment must remain a question for the court. I have reached this conclusion because of the requirement by the High Court majority in Marion’s case for court authorisation for irreversible medical treatment in circumstances 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, as they would be in this case.

9. Her Honour, in reaching that conclusion, took into account “the persuasive submissions” made on behalf of the Australian Human Rights Commission and the public authority “which support continued court involvement in decisions concerning stage two treatment”.[3]

   [3] Re: Jamie [2013] FamCAFC 110; 50 Fam LR 369, [187].

10. In the same case Strickland J agreed with the outcomes proposed by both the Chief Justice and Finn J and generally for the reasons set out by each of them. He stated at [196] :

    Whether the child is able to fully understand and give informed consent to stage two treatment… 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.

11. There have been varying approaches to the framing of orders in these cases.

12. Only recently Watts J in  Re Kelvin [2017] FamCA 78 has stated a special case for the opinion of the Full Court under s 94A(1) of the Act concerning various questions set out in paragraph 8 of his Orders. Watts J in that decision refers to the different approaches taken by Judges of this Court in these type of applications.[4]

    [4] Re Kelvin [2017] FamCA 78, [13]-[16].

13. The special case has not yet been heard by the Full Court.   

Jurisdiction

1. This application is brought under Part VII of the Act.

2. Section 69H(1) of the Act provides that jurisdiction is conferred on the Family Court in relation to matters arising under this part.

3. Section 67ZC of the Act provides additional jurisdiction under Part VII of the Act to make orders relating to the welfare of children. It was inserted by an amendment to the Act in 1995 and reads:

   (1)In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.

   (2)In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

4. Subdivision BA of Part VII of the Act deals with how the Court determines a child’s best interests.

5. The Court has power to make an order under s 67ZC of the Act to authorise medical treatment. In the circumstances of this case it is not necessary to do so because, for the reasons set out below, I am satisfied that Ashton is Gillick competent.

Procedure

1. Section 97(3) of the Act mandates that the Court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted.

2. Section 68L of the Act allows for the appointment of an Independent Children’s Lawyer (“ICL”) in proceedings under the Act in which a child’s best interests are, or a child’s welfare is the paramount, or a relevant consideration. It is a discretionary matter for the Court as to whether a child’s interests in the proceedings ought to be independently represented by a lawyer.

3. Having regard to all the circumstances of this case, including the urgency of the proceedings, I am satisfied that the appointment of an ICL is unnecessary. In Re K (1994) FLC 92-461 at 80,773, the Full Court issued guidelines as to the circumstances in which an ICL should usually be appointed. One of the categories referred to in those guidelines were applications in the Court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not adequately represented by one of the parties. In the circumstances of this case, I am satisfied that the child’s interests are adequately represented by the parents who are the applicants. I am fortified in that view by the evidence of the expert witnesses.

Service of the Application

1. Rule 4.10 of the Family Law Rules 2004 (Cth) (“the Rules”) requires that an application for a special medical procedure be served upon the prescribed child welfare authority.

2. I am satisfied on the oral evidence of the solicitor for the applicants that the Department and the Office of Public Advocate have been served with a copy of the application and supporting material and that neither of those parties seek to be heard on the application (Exhibit A and B).

Evidence and Standard of Proof

1. The Rules provide that evidence may be given in the form of an affidavit or orally with the Court’s permission.[5] The documentary evidence relied upon for this hearing is listed in Annexure A to these reasons. 

   [5] Family Law Rules 2004 (Cth), r 4.09(3)

2. The standard of proof applicable is on the balance of probabilities under s 140 of the Evidence Act 1995 (Cth).

3. At [139] of Re: Jamie, Bryant CJ held that for an application with respect to Gillick competence, the material in support would not need to be as extensive as an application for the Court to authorise treatment. Her Honour stated that in the absence of some controversy, she could see no reason why any other party needed to be involved and that it would be an issue of fact to be determined by the Court on the material presented.  The other members of the Full Court either did not express a contrary view or expressed implicit agreement with the Chief Justice on this point.

4. For the purposes of the hearing before me, no witnesses were cross-examined and the case proceeded by way of submissions only.

The Nature of the Proposed Medical Treatment

1. Ashton has been diagnosed with Gender Dysphoria (DSM-V 302.85) (Diagnostic and Statistical Manual of Mental Disorders, fifth edition, American Psychiatric Association, 2013). Ashton did not receive Stage One treatment for Gender Dysphoria. The mother deposes that :

   By the time [Ashton] began treatment at the [X] Hospital Gender [service] in April 2016, after being urgently referred following a suicide attempt, he was already 16 years of age. [Ashton] missed out on the chance to undertake “stage one” hormone treatment to stop the onset of puberty….[6]

   [6] Mother’s affidavit filed 11 May 2017, par 20.

2. The parents of Ashton propose that he commence Stage Two treatment for Gender Dysphoria in the form of administering the male hormone testosterone to masculinise his body.

Evidence of the Applicant Parents

1. The mother filed an affidavit on 11 May 2017. The mother deposes that she and her husband have been married for 20 years and have three children, including Ashton. The mother deposes that she and her husband are both in agreement and “fully support and consent to the proposed testosterone treatment being administered to [Ashton]”.

2. The mother describes Ashton’s history and deposes that since early childhood “[Ashton] has been uncomfortable in his own skin and has expressed his gender to be male, despite being born a female”. The mother went on to depose that the child has been a patient of the X Hospital since April 2016 at which Dr M and Dr P “formally diagnosed him as having gender dysphoria”.

3. Further, the mother deposes that Ashton has been a “tomboy” since early childhood and he “never had any real interest in the typical things that girls of a similar age to him enjoyed”. She describes him wearing “loose fitting clothes that boys would typically wear” and that he appeared not to belong to any friendship groups which was noted by his teachers.

4. The mother deposes that in late 2014, Ashton “became noticeably distressed about his periods, breasts, voice and feminine facial features”. She deposed that he cut his hair short and in early 2015 he began to wear a chest binder.

5. The mother deposes that she became aware that Ashton “fully identified as a male in February 2015” because of a conversation between herself, her husband and Ashton.  She deposes that “we were fully supportive of [Ashton]”. The mother describes making immediate changes such as providing him with a male school uniform.

6. The mother deposes that in April 2015 Ashton began to self-harm which culminated in a suicide attempt which led to an urgent referral to the X Hospital gender service. The mother deposes that Ashton gradually transitioned to living as a male in 2015 and before fully transitioning he had “difficulties with self-harm and suicidal thoughts”. She deposes that Ashton’s mood has improved with “intermittent counselling and since being able to live as a male”.

7. However she deposes that Ashton still has difficulties coping in the school environment and “suffers from some social anxiety in social settings”. Ashton has recently changed schools and the mother deposes that he appears to enjoy the change of schools however “there have been several gender based assaults both on and off the property and we have had to seek a Personal Safety Intervention Order… against one of the assailants”.

8. The mother goes on to describe in detail some of difficulties in relation to breaches of the Intervention Order when the child makes his way to school.  She deposes that the respondent to the Intervention Order enters the school ground and searches and approaches Ashton and that they “fear for [Ashton’s] personal safety every day that he has school”. This is despite the assailant having been expelled from the school. The respondent to the Intervention Order has also contacted Ashton’s friends to threaten Ashton. The mother deposes that:

   This issue has only arisen due to [Ashton’s] gender diversity, and frequent reference is made of his gender diversity by the respondent and the respondent’s friends. We hope that with the commencement of “stage two” treatment, he will present more as male and these pursuits will decrease.[7]

   [7] Mother’s affidavit filed 11 May 2017, par 17.

1. In relation to the proposed treatment, the mother deposes that Ashton has transitioned socially to living as a male and is known as a male to his family and friends. Ashton formally registered a change of his name. The mother deposes that by the time Ashton had been referred to the X Hospital gender service in April 2016 he was already 16 years of age and he “missed out” on the chance to undertake “stage one” hormone treatment to stop the onset of puberty, and he is therefore eager to begin “stage two” hormone treatment.

2. The mother deposes to her understanding of the effects of the Stage Two treatment as:

   …physical changes required to masculinise [Ashton’s] body, such as the development of hair on his face, changes his facial shape and appearance, irreversible changing of his voice and muscle development as well as growth of the clitoris, stopping the development of eggs and the potential associated loss of fertility.[8]

   [8] Mother’s affidavit filed 11 May 2017, par 21.

3. She describes that these physical changes will enable Ashton to present as a male, a pre-cursor to more invasive surgery when he is an adult.

4. The mother deposes to anticipating that Ashton’s “emotional state and welfare should greatly improve with testosterone treatment given that his gender dysphoria contributes to his low mood and social difficulties”. She goes on to depose it will maximise “his emotional, social and educational potential giving him the ability to live within a body that is more consistent with his gender identity”.

5. The mother deposes that she has discussed the possibility of Ashton delaying the treatment until he turns 18. She deposes that he is “adamant that he wants the treatment to commence as soon as possible”. The mother deposes as to her belief that if the treatment were to be delayed it may exacerbate his issues relating to mental health and the risks to the progression of his education and social life.

6. She described having had lengthy discussion with Ashton about the potential impact that the Stage Two treatment may have on his ability to have children. She deposes that “[Ashton] understands the potential for loss of fertility that the treatment may bring and understands the gravity of the treatment”.

7. The mother deposes to her belief that if Ashton does not commence the proposed treatment, it is clear to her and the family and the medical practitioners that his “emotional state will deteriorate and the risk of him self-harming or attempting suicide will increase”.

8. In relation to potential risks of the treatment the mother deposes she and the father are fully aware of the potential risks of the treatment and the risk that Ashton may regret his choice. However the mother deposes she believes that she, Ashton and his treating medical practitioners feel that any regret in having the treatment would be minimal.

9. Ashton is described as intelligent by the mother and as someone who has been actively involved in his treatment and that “[they] believe he is fully aware of what is involved and is keen to commence the treatment as soon as possible”.

10. The father filed an affidavit on 11 May 2017 agreeing with the contents of the mother’s affidavit. He deposes that he fully supports the commencement of Stage Two treatment. He agrees that the treatment “will have a significant impact on [Ashton’s] mental health and wellbeing”.

11. The parents are not expert witnesses but I accept their evidence in terms of their observations of their child, their observations of his comprehension and their discussions of the treatment with him.

Evidence of paediatrician, Dr P

1. Dr P is a paediatrician who works within the gender service at the X Hospital. He prepared a report dated 8 December 2016 (Annexure KP-2 to his affidavit filed 11 May 2017). I am satisfied that he qualifies as an expert witness on the basis of his qualifications and experience outlined in Annexure KP-3 of his affidavit.

2. In his report Dr P refers to having seen Ashton on three occasions with the first consultation occurring on 28 April 2016. Dr P describes Ashton’s condition as Gender Dysphoria (DMS V 302.85) (Diagnostic and Statistical Manual of Mental Disorders, Fifth edition, American Psychiatric Association, 2013).   He states that he believes that Ashton is Gillick competent in relation to decision making for the commencement of Stage Two treatment for Gender Dysphoria.

3. Dr P proposes to treat Ashton with testosterone to masculinise his body, and describes that testosterone is available in a number of different formulations and that the “exact form of testosterone used and method of administration will be individualised for [Ashton]”. Dr P states that he will be closely monitoring Ashton for side effects during his treatment and the adequacy of the dose of testosterone.

4. Dr P in his report provided information on the likely long-term physical and psychological effects on Ashton if the treatment is carried out and if the treatment is not carried out.

5. If the treatment is carried out, Dr P states the effects of testosterone on Ashton will include:

   ·    Development of hair in the pubic area, armpits and on the beard area of the face

   ·    Changes in facial shape and appearance

   ·    Irreversible changing of the voice due to growth of the larynx (Adam’s apple) and lengthening of the vocal cords

   ·    Muscle development

   ·    Increased oil protection by the skin, which may result in acne

   ·    Growth of the clitoris and an increased number of erections

   ·    Stopping the development of ova (eggs) in the ovaries, with loss of fertility. This effect is reversible if the testosterone treatment is stopped.

   ·    Stimulation of bone mineral density

   ·    Testosterone also affects behaviour by stimulating more assertiveness (sometimes aggression) and sexual desire.

6. If the treatment is not carried out, Dr P states in his report that:

   [Ashton’s] emotional state would likely deteriorate and there would be an increased risk of self-harm and/or attempted suicide. [Ashton’s] physical appearance would remain feminine. This would most likely be intolerable for [Ashton], who has an affirmed gender identity that is clearly male.[9]

   [9] Affidavit of Dr P filed 11 May 2017, Annexure KP-2, par (c)(ii).

7. Dr P also discussed the nature and degree of any risk to Ashton from the procedure and reported that there may be effects of testosterone that are not currently known or anticipated. He indicated the long term outcomes are still being studied. However he stated that testosterone may increase the risk of the following:

   ·    Acne

   ·    Mood swings

   ·    Heart disease

   ·    Polycythaemia (increased red blood cells)

   ·    Liver problems and rarely malignant liver tumours

   ·    Thinning of the skin in the genital area (longer term)

8. He noted that these effects are more likely if the person

   ·    Smokes

   ·    Is overweight

   ·    Abuses alcohol/drugs

   ·    Has high blood pressure

   ·    Has a personal or family history of blood clots

   ·    Has a personal or family history of heart disease and stroke

   ·    Has a family history of liver cancer.

9. Further Dr P states if the testosterone dose is increased too rapidly, Ashton’s mood may be affected and he could become aggressive. Dr P notes that the effects of testosterone on the “ovaries and other female organs over time is not well understood and the danger of inducing abnormalities such as ovarian cancer has not been extensively studied”. Dr P notes that if Ashton chose to cease testosterone treatment in the future “some of the effects of testosterone will not be reversible (risk of regret)”.

10. Dr P states that he considers the treatment to be in the best interests of Ashton and that Ashton has been consistent in requesting this treatment. He is of the opinion that the treatment will “improve his mental state and maximise his emotional, social and educational potential”.

11. In relation to whether Ashton is capable of making an informed decision about the procedure, Dr P believes that Ashton is Gillick competent to make decisions regarding Stage Two treatment. Dr P reports that Ashton wishes to commence treatment as soon as possible. Dr P reports having had numerous discussions with Ashton during their consultations about the treatment and the risks and benefits that are known. This included the impact on fertility and risk of regret.

12. Dr P reports that based on his sessions with Ashton he is of the belief that Ashton agrees to Stage Two treatment and his impression is that Ashton is Gillick competent to make decisions in relation to the treatment. He reports that Ashton has consistently expressed to him that he has thought about taking testosterone for an extended period of time. Dr P confirmed in his report that both the mother and father have indicated their support for Ashton to commence Stage Two treatment.

Evidence of Consultant Child and Adolescent Psychiatrist, Dr M

1. Dr M is a Consultant Child and Adolescent Psychiatrist at the X Hospital.  She prepared an undated report dated 23 March 2017 (Annexure TM-2 to her affidavit filed 11 May 2017 and Exhibit C). Dr M has been working at the X Hospital gender service as a consultant psychiatrist since February 2016, and prior to this worked in this specific area of subspecialty in 2014 under the supervision of Associate Professor C.  She has seen the child on seven occasions, the first being 28 April 2016. I am satisfied that she qualifies as an expert witness on the basis of her qualifications and experience outlined in Annexure TM-3 of her affidavit.

2. Dr M confirms the diagnosis for Ashton and that the child meets the criteria for Gender Dysphoria (DSM –V 302.85).  She points out that the experience of Gender Dysphoria is not seen as a mental illness, although some of the consequences of the young person living in a body which does not feel appropriate for them can produce sometimes life-threatening emotional distress and social and relationship difficulties.

3. Dr M reports that if the procedure is not carried out Ashton will continue to have the primary and secondary sexual characteristics of a female.  She states that:

   If [Ashton] is unable to experience male puberty, there is a significant likelihood that he may experience a worsening of depression and anxiety symptoms.  He would be at greater risk of self-harm and suicide. He may experience difficulties in relationships, in being able to live the life he would like in regards to friendships, career and as such may leave him feeling hopeless.[10]

   [10] Affidavit of Dr M filed 11 May 2017, Annexure TM-2, par 3(b).

4. Dr M is of the opinion that:

   … the treatment will benefit [Ashton] by boosting his self-esteem, his psychological wellbeing, and confidence in his body.  It is likely to have a positive impact on his mental health, and improve relationships and school functioning as he will be relieved from the distress of gender dysphoria. I believe the treatment will give [Ashton] the best chance at optimal emotional, social and psychological development.[11]

   [11] Ibid, par 6.

5. Relevantly Dr M is of the opinion that the child is capable of making an informed decision about the procedure.  She reports:

   [Ashton] is a bright young man who has demonstrated that he understands the nature of the treatment, including side effects and limitations, and he is actively requesting the treatment. I believe [Ashton] is Gillick competent and able to make an informed decision about treatment. [Ashton] is a thoughtful bright young man and has considered this treatment in a comprehensive way. I have spoken with [Ashton] at length on several occasions about his understanding of the effects of testosterone.   I also believe that [Ashton] has discussed in depth the effects of the treatment with his treating paediatrician within the [X Hospital gender service].  [Ashton] has had access to [gender service] information sheets regarding hormone treatment which have been discussed in detail with his treating paediatrician. [Ashton] has been involved in his trans community locally and has accessed other resources himself with regard to hormone treatment.[12]

   [12] Ibid, par 7.

6. Dr M corroborates the evidence of the child’s parents that they are supportive of the treatment and have been supplied with information about the treatment and discussed the effects and side-effects with Ashton and his paediatrician.  In addition she reports that Ashton and his parents have discussed with her written information pertaining to the psychosocial impact of cross sex hormones.

Findings and conclusion

1. I accept the unchallenged evidence of the expert witnesses Dr P and Dr M and the evidence of the applicant parents and note that the treating professionals are supportive of the application. Ashton seeks the treatment described in the application and has demonstrated the intellectual capacity to understand the information relevant to making the decision and to appreciate the potential consequences, some of which may be irreversible and that the impact upon his fertility is uncertain.  I accept that the application is urgent because of the history of self-harm.  Ashton has been clear and consistent in his views.

2. On the basis of all of the evidence, I am satisfied on the balance of probabilities that Ashton is competent to fully understand the nature and consequences of the treatment described in the application and to make his own decision in relation to treatment. Ashton will be 18 in eleven months and is in the transition phase from childhood to adulthood referred to in the Gillick case and is competent to consent to treatment.  

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 23 May 2017.

Associate: 

Date:  23 May 2017

Annexure A

Documents relied upon by the applicants:

• Initiating Application filed 11 May 2017;

• Affidavit of the Mother filed 11 May 2017;

• Affidavit of the Father filed 11 May 2017;

• Affidavit of Dr P filed 11 May 2017; and

• Affidavit of Dr M filed 11 May 2017.