Re: Dale

[2015] FamCA 473

FAMILY COURT OF AUSTRALIA

RE: DALE [2015] FamCA 473

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are the parents of a  child diagnosed with Gender Dysphoria – where the applicants seek a declaration that the child is competent to authorise his own stage two treatment – where the child’s treating medical experts and parents support the child commencing stage two treatment – assessment of whether 16 year old child is Gillick competent to consent to medical treatment – finding that the child is competent to consent and authorised to make his own decision about stage two treatment.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicants seek to dispense with the requirement under Rule 4.10 to serve a Medical Procedure Application upon persons including the prescribed child welfare authority – where there is no controversy as to the competency of the child – no indication that the prescribed child welfare authority has an interest in the child – no other interested party identified in the material before the Court – order that Rule 4.10 be dispensed with pursuant to Rule 1.12.

Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 43(1)(c), 60 CB, 60CG, 67ZC, 68L, 69H(1) and 97(2)
Family Law Rules 2004 (Cth), rr 1.06, 1.12, 4.08(a), 4.09(3) and 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
Secretary Department of Health and Community Servicesv 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 JUDGMENT DELIVERED: 22 June 2015

DATE ORDERS MADE: 3 June 2015

JUDGMENT OF: Thornton J

HEARING DATE: 3 June 2015

REPRESENTATION

By Court Order the names of counsel and solicitors have been suppressed

Orders made 3 June 2015

IT IS ORDERED THAT

1. These proceedings be known by and referred to as “Re: Dale”.

2. Leave be granted for the proceedings to be heard “in camera”.

3. The full name of the Child – now known and referred to as “Dale” – Dale’s family members and their occupations, any medical practitioner and hospitals, Dale’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the parties’ lawyers if they are represented, any witnesses, and any other fact or matter that may identify Dale shall not be published in any way and only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number, lawyers’ names and details, as well as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. Notwithstanding paragraph 3 of these orders each of the parties 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.

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

6. Leave is granted for an affidavit from Dr T sworn on 29 May 2015 and Dr K sworn 28 May 2015 to be filed in court this day.

7. Pursuant to Rule 1.12 of the Family Law Rules 2004 (Cth) ("the Rules") the requirement pursuant to Rule 4.10 of the Rules that the Amended Initiating Application filed 2 June 2015 be served on the prescribed child welfare authority be dispensed with.

8. Upon the Court being satisfied that the child … formerly known as … born … 1999 ("Dale") is competent to consent to the medical treatment described in the Amended Initiating Application filed 2 June 2015, the Court authorises Dale to make his own decision in relation to that treatment. 

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

10. The applicants’ Amended Initiating Application filed 2 June 2015 be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

AND THE COURT NOTES THAT:

(A)The treatment described in the Amended Initiating Application filed 2 June 2015 is the commencement of stage 2 (testosterone) treatment for Gender Dysphoria.

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

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order the 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 the child, Dale, aged 16, is competent to consent to medical treatment, being ‘stage two’ or testosterone  hormone treatment for gender dysphoria.

2. Dale was born a female but has identified as a male from an early age. He began attending school as a male from Year 9 onwards. He has been diagnosed with gender dysphoria and wishes to undergo stage two treatment.

3. Dale’s parents brought an urgent application for a declaration that Dale is competent pursuant to the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick competent”) to consent to stage two treatment for gender dysphoria. As the parents of Dale, 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 the proceedings, I made an order that the proceedings be conducted in camera pursuant to s 97(2) of the Family Law Act 1975 (Cth) (“the Act”). I also made the usual orders preserving Dale’s anonymity which include protecting not only Dale’s name but also other information such as the names of the medical practitioners, lawyers and others involved in the case.

5. There is no controversy about Dale’s diagnosis, his wishes or his competence to provide informed consent for medical treatment. Dale’s parents and the treating professionals, Associate Professor P, Dr T and Dr K, are supportive of the application.

6. The application is essentially an application for determination by the Court as to whether Dale is competent to consent to his own stage two medical treatment for gender dysphoria. 

7. Dale’s age, psychological state and his circumstances are the reasons for the urgency of the application.

The Application

1. The parents sought numerous orders in their Amended Initiating Application. The substantive order sought was that the child be declared Gillick competent to consent to the commencement of stage two (testosterone) treatment for gender dysphoria. I note that all other orders were procedural, alternatives to the competency declaration or withdrawn.

2. There were other orders sought in the alternative which are not relevant.

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.

2. In 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 Gillick, 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. In should declare … that the legal right of a parent to the custody of a child ends at the 18th 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 Gillick, 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 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.

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. Sections 60CB to 60CG of the Act deal 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 reasons set out below, I am satisfied that Dale is Gillick competent.  

Procedure

1. Counsel for the parents submitted that the appointment of an Independent Children’s Lawyer was unnecessary in the circumstances of the case. Section 68L of the Act allows for the appointment of an Independent Children’s Lawyer 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.

2. Having regard to all the circumstances of this case, including Dale’s age and the urgency of the proceedings, I agree with the submissions of counsel for the parents and am satisfied that the appointment of an Independent Children’s Lawyer is unnecessary. In Re K (1994) FLC 92-461 at 80,773 the Full Court issued guidelines as to the circumstances in which an Independent Children’s Lawyer should usually be appointed. One of the categories referred to in those guidelines was 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”) provides that the persons upon whom a Medical Procedure Application, and any document filed with it, must be served include the prescribed child welfare authority. I note that Rule 4.10 is expressed in mandatory terms.

2. The applicants sought that this rule be dispensed with in the circumstances of this particular case.

3. I am satisfied pursuant to Rule 1.12 of the Rules that it is appropriate to dispense with compliance with Rule 4.10 having regard to the main purpose of these rules.

4. The reasons for dispensing with the service in this particular case are as follows:

   ·The main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case. It is reasonable in the circumstances of this case to minimise the cost to the parties and to the Court and resolve the matter in a timely manner;

   ·The age of the child the subject of the application is 16 and the wishes of the child are clear from the evidence before the Court. There is no controversy about the wishes of the child which have been expressed to his parents, Dr T, Associate Professor P, and consultant child and family psychiatrist Dr K;

   ·There is no controversy between the parents, child or professionals about the child’s competency to consent to the treatment proposed;

   ·There is no other interested party identified in the material before the Court;

   ·There is some urgency to the application having regard to the evidence about the mental health of the child;

   ·There is no evidence that the relevant Department has an interest in the child or that there is a need for an investigation or involvement by that Department;

   ·The principles under s 43(1)(c) of the Act to be applied in exercising jurisdiction loom large in this application where the Court shall have regard to the need to protect the rights of children and to promote their welfare;

   ·I am satisfied that it is in the best interests of the child to expedite the hearing of the matter having regard to the evidence that treatment is urgently required and that this is supported by the parties and the expert witnesses;

   ·Having regard to Rule 1.06 of the Rules, I have considered the likely benefits of taking a step justifying the cost of that step, dealing with as many aspects of the case as possible on the same occasion, and minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents.

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.[4] The documentary evidence relied upon for this hearing is listed in Annexure A to these reasons.  No witnesses were cross-examined and the case proceeded by way of submissions only.

   [4] 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.

The Nature of the Proposed Medical Treatment

1. Dale has already commenced puberty suppression hormone treatment (Zoladex injections), an effect of which has been to suppress his menstruation.  Court authorisation is not required for this stage one treatment.

2. It is proposed that Dale would commence stage two treatment with testosterone. The effects of this treatment are partially reversible, although some of the desired changes such as male hair growth pattern, voice change and muscle changes may be very difficult to reverse. The effect on his reproductive capacity (conception from successful ovulation) in the longer term is not certain.

Gillick Competence

1. The evidence of the parents and Dale’s treating doctors, Associate Professor P, Dr K and Dr T, supports a finding that he is Gillick competent. That evidence is summarised below.

Evidence of the Parents

1. Each of the parents has sworn and filed an affidavit in support of the application. Although the father is listed as the respondent in those affidavits, both parents are listed as applicants on the Amended Initiating Application and the solicitor appearing on their behalf confirmed that the intended status of the parents is as applicants.

2. I accept the unchallenged evidence of the parents who depose to the following matters regarding Dale’s circumstances.

3. Dale is the only child of the parents. From the age of around three and a half until about seven, Dale had numerous tantrums, many of which ended with Dale saying words to the effect of “Get me out of this skin”, “I hate this skin I’m in”.[5] Dale displayed a tendency towards boys’ clothing from the age of four or five and gravitated towards friendships with boys around that same age.

   [5] Affidavit of the mother filed 2 June 2015, [21].

1. Dale experienced significant difficulties in his early primary school years in interstate due to his struggle to integrate with girls of his age and the rejection he experienced when he attempted to play with boys at school. In those same primary school years, the parents struggled to get Dale to attend school and mornings were stressful events.

2. Dale attended two further schools interstate, with those changes occurring as a result of the boy/girl biases present at the schools and the isolating effect this had on Dale. The trip to and from school at the third interstate school (at which time Dale was in the early years of secondary school) was a particularly anxiety-inducing event. The lack of access to toilets on the thirty minute bus trip would lead Dale to suffer extreme anxiety and he would often lock himself in the toilet at home to avoid attending school.

3. Throughout his school-life, Dale also experienced what the father describes as “physical and violent episodes of rage and anger with [his] body and life”.[6]

   [6] Affidavit of the father filed 2 June 2015, [23]. 

4. Interstate, Dale commenced attending upon various counsellors and therapists. Whilst attending one of these therapists the possibility of Dale being transgender was raised for the first time.

5. The family relocated to this State in mid 2013. Dale was enrolled in Year 9 at a high school with an expressly open attitude towards the sexual preferences of students. It was at this time that Dale told his parents that he wished to be known as “Dale”; immediate family and friends were informed of Dale’s decision.

6. With the onset of puberty in Year 9, Dale began binding his breasts. Dale purchases the breast binders with his own pocket money from an international supplier and constantly wears them, despite the discomfort they cause. It was around this time that the mother began to notice that evidence of Dale’s self-harm was spreading from his thighs and torso to his arms.

7. Dale’s name change was formalised at the beginning of Year 10 and he began tentatively using male toilets at the beginning of 2015.

8. Prior to moving to this State, the mother had initiated appointments for Dale with gender specialists. Appointments with a transgender specialist team at Dale’s current treating hospital began shortly after the family moved. Following consultation with the specialist team, Dale was prescribed Zoloft, an antidepressant, which the mother says helped Dale to “lift [his] head”,[7] although she also deposes that it only succeeded in taking “the edge off” Dale’s symptoms.

   [7] Affidavit of the mother filed 2 June 2015, [11].

9. Dale commenced stage one treatment for gender dysphoria in or about June 2013.  The parents’ concerns about Dale’s mental health have not been alleviated since Dale commenced stage one treatment and they depose that he continues to self-harm and has expressed suicidal thoughts. The mother deposes that “we are reluctant to leave him home alone for fear of his self-harm or worse”.[8]

   [8] Ibid, [34].

10. The stresses of dealing with his specialist appointments combined with his mental health problems have negatively impacted upon Dale’s education as he finds it difficult to concentrate fully on his school studies. The parents express this as a particular concern with Dale commencing Year 11 this year. A vocational course has been agreed upon as the most practical and achievable option for Dale which should hopefully enable him to engage in his desired occupation.

11. Although the father himself does not have detailed knowledge of the stage two treatment, he deposes that Dale is looking forward to starting it.

12. Both parents depose that they support Dale seeking treatment for his gender dysphoria.

The Evidence of Associate Professor P

1. Associate Professor Campbell P is a consultant child and adolescent psychiatrist with 34 years of practice at the hospital where Dale is currently receiving stage one treatment. Associate Professor P has considerable experience working with children and adolescents with a range of gender developmental problems, having seen approximately 80 children and adolescents experiencing such problems.

2. He met with Dale on 3 April 2014 and 30 April 2015 for the purpose of providing a second opinion in respect of the diagnosis of gender dysphoria and Dale’s request for stage two treatment for that condition.

3. It is the opinion of Associate Professor P that Dale meets the criteria for a diagnosis of gender dysphoria of adolescence under the DSM-V (DSM-V is the updated version of DSM-IV), (previously known as gender identity disorder under DSM-IV) and that Dale has consistently and persistently identified within himself as a male since very early childhood.

4. Gender dysphoria refers to the distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender (natal gender). Currently, gender dysphoria is not generally seen as a mental illness although Associate Professor P notes that “the consequences of a young person living in a gendered body which they do not feel is there [sic] appropriate body, can produce profound emotional distress and social and relationship difficulties”.[9]

   [9] Report of Associate Professor P (Annexure A to his affidavit filed 2 June 2015), page 3.

5. In terms of his opinion as to whether Dale is capable of making an informed decision about the stage two treatment, Associate Professor P deposes that Dale agrees to commence the treatment and has been requesting this treatment over the last year. He deposes that Dale already understands the nature of the proposed treatment and its risks, and that he has demonstrated a mature understanding of the risks and benefits involved in such treatment. Associate Professor P reports that Dale feels positively about the changes that will result from the treatment and is aware of the difficulties which the treatment may cause in terms of conception in the future. Associate Professor P further reports that Dale has expressed the view that he does not plan to have children in the future; Dale also says that he does not wish to have children from within his own body. 

6. Associate Professor P deposes that there is no less invasive treatment than testosterone administration to induce the changes required in Dale’s body. Dr K and Dr T, both of whose evidence is referred to below, are also of the opinion that there is no alternative treatment available.  

7. Associate Professor P outlines the significant number of mental health problems experienced by Dale through his childhood and early adolescence. He is of the opinion that Dale’s mental health problems are not the primary causative reason for his gender dysphoria and that minimising the impact of physical pubertal development is likely to reduce the symptoms of those problems.  

8. Associate Professor P concludes that Dale experiences profound gender dysphoria and the treatment will alleviate much stress, in addition to inducing the physical changes consistent with his gender identity. Associate Professor P warns that Dale will be at significant risk of increasing depressive mood and possible self-harm if denied treatment. He further warns that Dale will continue to “feel isolated, avoidant and anxious in public” without the proposed treatment.[10]

   [10] Report of Associate Professor Campbell P (Annexure A to his affidavit filed 2 June 2015), page 6. 

The Evidence of Dr K

1. Dr K is a consultant child and adolescent psychiatrist at Dale’s current treating hospital. She has been working as a consultant child and adolescent psychiatrist for 20 years and has spent the past seven years working with children and adolescents with gender identity issues as well as children with disorders of sex development who have psychological problems.

2. Dr K has met with Dale and his mother on five occasions since February 2014 and has produced a report for the proceedings dated 27 April 2015 (Annexure A to her affidavit). She reports that Dale and his mother both provide a life-long history consistent with a diagnosis of gender dysphoria; according to Dale, he knew that he was a boy from the age of four but did not reveal that to his mother as she had wanted a daughter and was happy that she had a girl.

3. It is Dr K’s opinion that the history provided by the mother and Dale’s presentation is consistent with a diagnosis of gender dysphoria (DSM-V) and gender identity disorder (transsexual type). Gender dysphoria (DSM-V) is detailed above in the evidence of Associate Professor P. Dr K provides a definition of transsexualism that has three criteria: the desire to live and be accepted as a member of the opposite sex; the presence of the transsexual identity for at least two years; and the disorder is not a symptom of another mental disorder or a chromosomal abnormality.

4. Dr K records Dale’s mental health history as including a diagnosis of obsessive compulsive disorder and anxiety since 2012, as well as a history of self-harming behaviour in the context of significant distress associated with gender dysphoria. She deposes that “[t]hese problems appears [sic] to have occurred in the context of long standing gender dysphoria and the stress that caused within [Dale]”.[11]  

   [11] Report of Dr K (Annexure A to her affidavit filed 3 June 2015).

5. Dr K outlines the contact she has had with Dale and noted that he has presented consistently as a young man. During sessions, Dr K reports that Dale has also consistently expressed “deep longing for male body features to align with his male gender identity”.[12] Dr K expresses the opinion that Dale demonstrates a full understanding of the nature of the proposed treatment, including side effects and limitations. Dr K specifically states that it is her opinion that Dale is Gillick competent and capable of making an informed decision about the treatment.

   [12] Ibid.

6. It is Dr K’s opinion that if the treatment is not carried out, Dale’s anxious and depressive symptoms are likely to worsen. Dale’s relationships with his peers may also suffer, as well as his aspirations for a future career and life which may cause feelings of hopelessness.

The Evidence of Dr T

1. Dr T is Dale’s paediatrician and works as a subspecialist Adolescent Physician at the Gender Dysphoria Service of the Hospital. Dr T has worked in paediatrics since 2003, for the most part in this State. Dr T prepared a report dated 23 February 2015 (Annexure A to her affidavit filed 3 June 2015) in relation to Dale’s competency to consent to stage two treatment.  Dr T is of the opinion that Dale is Gillick competent.

2. In her affidavit, Dr T reports that two of her colleagues from the Gender Dysphoria Service (being Associate Professor P and Dr K) have diagnosed Dale with gender dysphoria (DSM-V). Dr T details the treatment that is proposed for Dale. Specifically, Dr T states that she will start Dale’s treatment with monthly intramuscular injections of testosterone enanthate in a dose of 0.5 mL (125 mg) monthly. After that, the dose may be increased to 1 mL (250 mg) monthly. Dale will concurrently be receiving treatment with a gonadotrophin releasing hormone (GnRH) analogue called Zoladex to block female endogenous hormones and prevent menstruation. Once the dosage of testosterone enanthate has been increased to 250 mg monthly, Dr T states that it should be possible to stop the Zoladex. At a later stage, Dr T will treat Dale with long-acting testosterone undecanoate injections every two to three months, which will be a long-term treatment.

3. With respect to Dale’s capacity to make an informed decision about the proposed treatment, Dr T says the following:

   [Dale] is an intelligent young man who has engaged with me during multiple medical consultations in a mature manner. He has been the driving force behind commencement of assessment and treatment for gender dysphoria. He is very keen to commence testosterone treatment as soon as possible. [Dale] is Gillick competent to make the decisions regarding commencement of stage 2 (testosterone) treatment. He has a detailed understanding of what the treatment entails and is aware of the risks and benefits that are known, including the risk of regret and the impact testosterone will have on his fertility. He asks appropriate questions regarding the medication and the changes which are likely to occur in a physical and psychological sense.[13]

   [13] Report of Dr T (Annexure A to her affidavit filed 3 June 2015).

4. Dr T records that she has had discussions with Dale about the effect of testosterone on his long-term fertility. It is her opinion that Dale understands this information.  Dr T also notes that the gynaecology team have discussed fertility with Dale as well.

5. Dr T deposes that if the treatment is not carried out, Dale’s emotional state would deteriorate severely and there would be a significant risk of self-harm. She considers the treatment to be in Dale’s best interests and necessary for his welfare.

Findings and Conclusion

1. I accept the unchallenged evidence of the expert witnesses and Dale’s parents and note that the treating professionals are supportive of the application. Dale has demonstrated the intellectual capacity and sophistication 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.  His views are clear and have not changed.

2. On the basis of all of the evidence, I am satisfied on the balance of probabilities that Dale 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. Dale is in the transition phase from childhood to adulthood referred to in the Gillick case and is competent to consent to treatment.  

3. I am satisfied that it is appropriate to make a finding that Dale is competent to make his own decision regarding the proposed stage two treatment for gender dysphoria.

The Nature of the Relief Sought and Form of the Order

1. The relief sought in the Initiating Application was framed in terms of declaratory relief. There would appear to be some controversy about whether the Court has the power, absent a statutory conferral of power, such as in s 78 of the Act, to make a declaration regarding these types of applications.

2. I raised this issue with counsel for the applicants during the course of the proceedings, and in discussions he agreed that a declaration was not necessary provided that there was a finding that the child was Gillick competent to consent to stage two treatment for gender dysphoria.

3. Following the authorities, it would appear to be unnecessary to make a declaration.  Accordingly, the order is not framed in terms of a declaration but a finding that Dale is competent to consent to the medical treatment described in the application and authorised by the Court to make his own decision in relation to that treatment. 

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 22 June 2015.

Associate:

Date:  22 June 2015

Annexure A

Documents relied upon by the applicants:

·          Amended Initiating Application filed 2 June 2015;

·Affidavit of the mother filed 2 June 2015;

·Affidavit of the father filed 2 June 2015;

·Affidavit of Dr T filed 3 June 2015;

·Affidavit of Associate Professor P filed 3 June 2015; and

·Affidavit of Dr K filed 3 June 2015.