Re: Dana

[2017] FamCA 686

FAMILY COURT OF AUSTRALIA

RE: DANA [2017] FamCA 686

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Gender dysphoria – Application for Stage 2 treatment for gender dysphoria – Where the child is 17 years of age – 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

APPLICANTS: The Mother and The Father

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: By Court Order File Number has been suppressed

DATE DELIVERED: 29 August 2017

JUDGMENT OF: Rees J

HEARING DATE: 28 August 2017

REPRESENTATION:

By Court Order the names of Solicitors have been suppressed

Orders

IT IS DECLARED

1. That the child, Dana who was born on … 2000, is competent to consent to the administration of oestrogen and progesterone for the purpose of treatment of Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) (“DSM-5”).

IT IS ORDERED

1. That the full name of Dana, her family members, her hospital, the Independent Children’s Lawyer, her medical practitioners, her school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of Dana’s parents’ lawyers, and any other fact or matter that may identify Dana, shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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, it being noted that each party shall be handed one full copy of these Orders with the relevant details included, to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.

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

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: Dana 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 and The Father

Applicants

REASONS FOR JUDGMENT

1. The Mother and the Father (“the applicants”), who were married in 1988, are the parents of Dana who was born in 2000 and is now 17 years of age.

2. The applicants have brought an application asking the Court to find that Dana is competent to consent to Stage 2 treatment for gender dysphoria.

3. An Independent Children’s Lawyer (“ICL”) was appointed for Dana. The ICL has had the opportunity to confer with Dana and appeared in Court and made written and oral submissions. The ICL submitted that the Court would find that Dana is competent.

4. The Department of Family and Community Services was served with the application and indicated that it did not wish to be heard in the proceedings.

5. In support of the application, affidavits were filed by each of Dana’s parents, her treating endocrinologist and her treating psychiatrist.

The Law

1. The issue of the role of the Family Court of Australia in cases involving childhood gender identity disorders was definitively explored in the decision of Re Jamie (2013) FLC 93-547 (“Re Jamie”) by Bryant CJ, Finn and Strickland JJ. In separate judgments, their Honours each determined that in cases where the proposed treatment is irreversible without surgical intervention, the issue for the Court is limited to determining whether the child is competent within the meaning of the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. This is referred to as Gillick competency. Their Honours held unanimously that in the event that the Court finds that the child is Gillick competent, then the authority of the Court is not required to authorise the treatment.

2. At paragraph 140 of Bryant CJ’s judgment in Re Jamie, her Honour stated:

   I summarise the decision that I have reached in relation to these matters:

   a)Stage one of the treatment of the medical condition known as childhood gender identity disorder is not a medical procedure or a treatment which falls within the class of cases described in Marion’s case which attract the jurisdiction of the Family Court of Australia under s 67ZC of the Act and require court authorisation.

   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.

   f)If there is a dispute between the parents, child and treating medical practitioners, or any of them, regarding the treatment and/or whether or not the child is Gillick competent, the court should make an assessment about whether to authorise stage two having regard to the best interests of the child as the paramount consideration. In making this assessment, the court should give significant weight to the views of the child in accordance with his or her age or maturity.

3. Finn J said, 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.

4. Strickland J said, at paragraphs 195 to 196:

   In relation to stage two treatment, I agree that the therapeutic benefits of the treatment need to be weighed against the risks involved and the consequences which arise out of the treatment being irreversible, but that given the nature of the changes that would result for the child that treatment should require court authorisation. This would not be the case though where the child is able to give consent to the proposed treatment.

   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.

5. Absent any controversy about whether or not there is a dispute in relation to the proposed treatment, the issue therefore in relation to Dana is whether or not she is Gillick competent to consent to the proposed treatment. If Dana is determined to be Gillick competent, court authorisation for the proposed treatment is not required.

6. The ability of a child to make his or her own decision in respect of medical treatment depends upon that child having sufficient understanding and intelligence to make the decision. It is a question of fact in each individual case and falls to be determined on the evidence of the individual capacity of the particular child.

THE EVIDENCE

1. Dana’s psychiatrist, Dr R, provided a report dated 14 June 2017. Dr R has seen Dana on four occasions since December 2016 for the purpose of assessing her competence.

2. In relation to the issue of Gillick competence, Dr R stated:

   Dana was able to comprehend and retain both existing and new information regarding the proposed treatment. This was demonstrated through the interview as I explored her quite comprehensive knowledge of the hormone therapy and its potential side effects, such as her acknowledgement of the need for regular blood tests to check hormone levels.

   She was able to provide a full explanation, in terms appropriate to her level of maturity and education, of the nature of Phase 2 treatment. Dana explained that the treatment has two parts – commencement of feminising hormones such as estradiol while remaining on the puberty blocking medication, then anti-androgen treatment which Dana intends to achieve by orchiectomy at genital gender affirming surgery. Dana was aware of the different ways of administrating oestrogen (tablets, patches and implants) and that the anti-androgen medication was in tablet form. She knew that she would have to take oestrogen for many years, until she reached a post‑menopausal age equivalent, and that there would be regular medical check-ups and monitoring of effects.

3. Dr R reported that Dana was able to describe the advantages and the disadvantages of Stage 2 treatment including:

   … the knowledge that there is an increased risk of blood clots (vein thrombosis), heart attacks and strokes, Type 2 diabetes, high cholesterol levels, weight gain and possibly breast cancer. She related the risks of loss of fertility, low libido and problems with sexual arousal. She knew that spironolactone can cause abnormal levels of potassium which can cause heart problems. Dana was aware that there was a risk of low mood, depression and anxiety due to the hormone changes. She acknowledged the inconvenience of ongoing medical monitoring and treatment.

4. Dr R stated that Dana was able to weigh the advantages and disadvantages and on balance arrive at an informed decision about whether she should proceed with the treatment. He stated that she was able to understand that the treatment will not necessarily address all of the psychological and social difficulties that she had before the commencement of the treatment.

5. Dr R concluded:

   It is my opinion that Dana was free to the greatest extent possible from any temporary factors that could impair her judgement in providing consent to the procedure. During the interview, Dana was alert and in a clear state of consciousness. There was no evidence of impaired or abnormal perception. Her thought flow was normal in rate and her thought processes were logical and non-delusional. There was no evidence that she was under the influence of intoxicants or suffering adverse effects of medication that could have impaired her cognition. The interview was conducted with Dana individually, so that there was no external influence, assistance or pressure.

6. Dr E, Dana’s treating endocrinologist, provided a report dated 12 March 2017. Dr E stated:

   … Dana comprehends the phasic nature of the proposed treatments and has a high level of maturity and education regarding the nature of both phase 1 and phase 2 treatments. She understands fully the advantages and potential disadvantages of each phase of  treatment. … her  desire to embrace the irreversible nature of phase 2 treatments is compelling and her insight and understanding of the advantages and disadvantages are clear and concise. Notwithstanding this clarity, Dana is aware of some complications that can arise from prolonged exposure to high-dose oestrogen therapy but depending upon the decisions to be made at a time yet to be determined those doses can be tapered and tailored to ensure satisfactory physical outcomes without excessive risk … In conjunction with her parents Dana’s decisions have been made with significant insight and understanding. I therefore consider her decisions regarding the consent to this procedure as fully informed and unimpaired, rational and considered.

7. Dana’s father swore an affidavit on 22 June 2017. He deposed that Dana is currently in Year 12 at school, she enjoys her studies and has a fondness for languages particularly English, French and Latin. Dana is interested in a broad range of intellectual and leisure pursuits and participates in debating and the Duke of Edinburgh awards. She is in the first level debating team for her school.

8. She enjoys reading, writing, music, art, politics and vegan food. Dana’s father deposed that Dana plans to complete her Higher School Certificate, take a gap year and return to pursue an undergraduate Arts degree followed by postgraduate Medicine.

9. Dana’s father deposed:

   Before arriving at a decision, Dana weighs the advantages and disadvantages of an issue. In every decision she makes, Dana relies on logic and thought. Dana does not rush decisions. Dana’s psychiatrist and counsellor are impressed with her knowledge of transgender issues. For example, Dana is well researched and knowledgeable of the science and application of hormone treatment, perhaps more knowledgeable than the average lay person. Dana has encyclopaedic knowledge of the topic of hormone treatment and this is one of the things Dana does when she is interested in an area or has a thirst for information. She reads very widely and retains enormous amounts of the information she absorbs.

10. Dana’s father described her as “funny, intelligent, engaging and passionate”.

11. Dana’s mother swore an affidavit on 22 June 2017.

12. She also confirmed that Dana has broad intellectual interests. Dana’s mother deposed that Dana “will always weigh up the advantages and disadvantages before making a decision. Dana puts logic and thought behind every decision she makes. I do not consider Dana to be impulsive.” She described her daughter as an incredibly intelligent child who researches topics thoroughly.

CONCLUSION

1. Dana will be 18 years old in 2018, just six months away. She will then be competent to make her own decisions in relation to her medical treatment.

2. I accept the evidence of her parents that Dana is a thoughtful and intelligent person who has carefully considered this issue before coming to a decision. The evidence of the parents is supported by the evidence of Dr R and Dr E.

3. Accordingly, a declaration will be made that Dana is competent to consent to Stage 2 treatment for gender dysphoria.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29 August 2017.

Associate: 

Date:  29/8/2017