Re: Drew

[2015] FamCA 784

FAMILY COURT OF AUSTRALIA

RE: DREW [2015] FamCA 784

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicant is a parent of a child with Gender Dysphoria – Where the applicant seeks a declaration that the child is competent to authorise his own Phase 2 treatment – Where the child is 16 years of age – Where the child has been diagnosed with severe depression – Consideration of whether the child is Gillick competent – Where the child’s treating medical experts and parents support the child commencing Phase 2 treatment – Where each of the child’s treating practitioners have expressed the opinion that the child is competent to the Gillick standard to authorise medical treatment – Declaration made that the child is Gillick competent.

Family Law Act 1975 (Cth) – s 121(9)(g)

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Jamie [2013] FLC 93-547

APPLICANT: The Mother

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 11 May 2015

JUDGMENT OF: Johnston J

HEARING DATE: 11 May 2015

REPRESENTATION

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

Orders

1. That orders are made in accordance with paragraphs 1 – 5 of the orders sought at page 5 of the applicant’s case outline signed by Johnston J and dated today as set out hereunder:-

   1.That the Court declares that the child Drew born on … 1999 is competent to consent to the administration of Phase 2 treatment for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.

   2.That the Court grants leave to apply on short notice in relation to the implementation of the declaration and any associated matter.

   3.That the full name of Drew, his family members, the hospital, the Independent Children's Lawyer, his medical practitioners, his school, this Court’s file number, any Family Consultant, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify Drew shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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.

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

   5.That otherwise all existing applications shall be dismissed, the case removed from the list of cases awaiting finalisation, and the appointment of the Independent Children’s Lawyer shall be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Drew 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

Applicant

REASONS FOR JUDGMENT

1. Drew is 16 years of age, having been born in 1999.  He was born biologically female but for almost the entirety of his life has identified as male.  He has the condition of transsexualism called gender dysphoria.

2. His mother, to whom for convenience I shall refer as “the mother”, seeks a declaration that Drew is competent to consent to the administration of Phase 2 treatment for his condition.

3. The child’s father is … and I understand that the father supports this application.  The mother’s application is also supported by the independent child lawyer. 

4. The background matters are as follows.

5. The mother was born in 1958.  The father was born in 1959.  The child was born in 1999 and was given a female name.  The parents’ relationship ended when Drew was approximately 12 months of age.

6. On 21 September 2005, orders were made by a State court by consent, that Drew reside with his mother and spend time with his father each alternate weekend as well as other times.

7. From approximately two years of age, Drew has insisted he is a boy and the female aspects of his body have distressed him.  Since then, he has refused to wear girls’ clothes.  He would only wear shorts and T-shirts.  At approximately eight years of age, Drew started experiencing moments of deep upset, saying:

   There is something wrong with me.  I want to die.  My body is wrong, I should have been a boy.

   At such times, he would cry, pull his hair out and/or bang his head on a wall. 

8. At approximately 10 years of age, he commenced school at S School.  The principal informed Drew’s mother that most of the students accepted Drew as a boy.  But later that year (2009) Drew spoke about killing himself, saying:

   I have the wrong body.  I don’t fit it.  I am a boy but the kids think I am a girl.  I want to kill myself.  I want this to end.

9. From 2011, Drew has worn a binder to conceal his breasts.  At approximately this time, Drew started menstruating and was very distressed.  He threatened to kill himself.  His general medical practitioner, Dr K administered a Depravera injection to inhibit Drew’s menstruation.  Also, at approximately this time, Drew commenced seeing a psychologist, Ms P, whom he attended approximately every three weeks over some years.

10. Upon commencing high school, Drew became the victim of consistent bullying.  He felt unsafe at school.  He became angry and engaged in some acts of violent retaliation to the bullying.  Such was Drew’s level of distress, that he commenced to self-harm.

11. In August 2012, Drew saw a psychiatrist, Dr B, who diagnosed Drew as having gender identity disorder, which was the medical term for Drew’s condition at the time.

12. In April 2012, Drew attended counselling with Dr R, counsellor, who has sworn an affidavit in these proceedings.  Dr R has long experience assisting transsexual and transgendered clients.

13. In October 2012, Drew commenced Phase 1 treatment for his condition.  His mother said that he has responded well to the treatment and seems much happier than he was prior thereto.  There have been no instances of self-harm since administration of this treatment.

14. Drew commenced at G High School late in 2012.  There have been no instances of bullying at this school.  He is not known by the students as being transgender, although the principal and staff are aware of his condition.  The principal, in particular, has been very supportive.

15. Unsurprisingly, Drew has been struggling at school but he has managed to pass, which is to his considerable credit, given all the difficult issues with which he has had to cope.

16. The mother said that Drew is looking forward to Phase 2 treatment so that he can have the full features of a boy, such as facial hair.  Drew has been seeing endocrinologist, Professor A, regularly.

17. Drew reported to his mother that he was sexually assaulted by one of his friends in December 2013 and this matter was fixed for trial in March 2015.

18. On 24 February 2015, Dr T, psychiatrist, interviewed Drew at length.  Dr T has provided a report, to which I shall refer below.  Dr T regards the administration of Phase 2 treatment as necessary to promote Drew’s wellbeing and to relieve his suffering.  Dr T has also specifically reported on matters relevant to whether Drew is competent to consent to the treatment. 

The Applicable Law

1. In Re Jamie [2013] FLC 93-547 the Full Court dealt comprehensively with the circumstances in which court authorisation is necessary for Phase 1 and Phase 2 treatment. As was submitted on behalf of the Australian Human Rights Commission at an earlier stage in these proceedings, the following points of guidance arise from the judgment:

   ·The Court has jurisdiction to hear and determine an application for authorisation of Phase 1 treatment if there is a dispute about the proposed course of treatment, for example between the views of the child, his or her parents or guardians and his or her treating medical practitioners;

   ·In the absence of such a dispute, court authorisation is not required for Phase 1 treatment;

   ·In relation to Phase 2 treatment, if the Court is satisfied that the child is Gillick competent, then in the absence of any controversy the child can consent to the treatment and no court authorisation is required;

   ·The question of whether a child is Gillick competent is a matter to be determined by the Court;

   ·If the Court is not satisfied that the child is Gillick competent, then Court authorisation for Phase 2 treatment is required.

2. What is meant by Gillick competence was set out in the House of Lords decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.  The relevant passage is that of Lord Scarman at 88-90 which is as follows:

   … 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.  Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances.  Emergency, parental neglect, abandonment of the child, or inability to find the parent are examples of exceptional situations justifying the doctor proceeding to treat the child without parental knowledge and consent: but there will arise, no doubt, other exceptional situations in which it will be reasonable for the doctor to proceed without the parent’s consent.

Drew’s Condition

1. As indicated above, Drew has been diagnosed as having the condition of gender dysphoria, initially by psychiatrist, Dr B in August 2012, and this diagnosis has been accepted by Dr T, psychiatrist.

2. The diagnostic criteria for the condition of gender dysphoria set out in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) are as follows:

   Gender Dysphoria in Adolescents and Adults

   A.A marked incongruence between one’s experienced/expressed gender and assigned gender, of at least 6 months duration, as manifested by at least two of the following:

   1.A marked incongruence between one’s experienced/ expressed gender and primary and/or secondary sex characteristics (or, in young adolescents, the anticipated secondary sex characteristics).

   2.A strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender (or, in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics).

   3.A strong desire for the primary and/or secondary sex characteristics of the other gender.

   4.A strong desire to be of the other gender (or some alternative gender different from one’s assigned gender).

   5.A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender).

   6.A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender).

   B.The condition is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.

   Specify if:

   With a disorder of sex development (e.g., a congenital adrenogenital disorder such as 255.2 [E25.0] congenital adrenal hyperplasia or 259.50 [E34.50] androgen insensitivity syndrome).

   Coding note:  Code the disorder of sex development as well as gender dysphoria.

   Specify if:

   Posttransition:  The individual has transitioned to full-time living in the desired gender (with or without legalization of gender change) and has undergone (or is preparing to have) at least one cross-sex medical procedure or treatment regimen – namely, regular cross-sex hormone treatment or gender reassignment surgery confirming the desired gender (e.g., penectomy, vaginoplasty in a natal male; mastectomy or phalloplasty in a natal female).

Expert evidence

1. I turn to the expert evidence.  Professor A, a paediatric endocrinologist, has been assisting Drew since June 2012 (when Drew was 13 years of age) after Drew had been diagnosed as having gender dysphoria.  He provided a report to the Court for the purposes of the Court’s consideration of permitting Phase 1 treatment for Drew.

2. Professor A said that Drew has tolerated the puberty suppression well and that this has achieved the aims of reduction of female hormone effects and cessation of menstruation.  He said that there had been no adverse effects.

3. In his report, Professor A also says:

   [Drew] now seeks to commence phase 2 therapy for gender dysphoria, being the administration of testosterone (male type or androgen hormones) to achieve male type secondary sexual characteristics.  This will include the development of male sexual hair distribution, male body habitus and muscular development, enlargement of the clitoris, enlargement of the larynx and deepening of the voice.  It will also cause suppression of ovarian function and potential loss of female fertility.  Many of these changes are irreversible or partly irreversible.

   In the regular meetings I have had with [Drew] and his parents, including the most recent on 20 November 2014, [Drew] has continued to firmly express 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 [Drew] 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 stop pubertal suppression at any time and not proceed with androgen therapy and return to a female gender role.  He has firmly expressed that he does not wish to do that.

   Also, in my meetings with the family, [Drew’s] parents have continued to support him through the process and are in agreement with [Drew] proceeding with Phase 2 therapy if that is still his wish.  I have also referred [Drew] to an adult endocrinologist to consult about possible future androgen therapy if and when it is approved.

4. And Professor A goes on to say:

   From an endocrinology perspective, I feel that [Drew] is sufficiently informed and capable of making this decision and I see no reason for Phase 2 therapy not to proceed.  Given all of the above information, I believe that proceeding with Phase 2 therapy is in [Drew’s] best interests.

5. As I have said, Drew has had the assistance of counsellor, Dr R, for approximately three years.  Dr R has also provided a report to the Court.  Dr R acknowledged that she is not a psychiatrist but she concluded that:

   It is in the best interests of [Drew] to have Phase 2 treatment for gender dysphoria.  This is evidenced by [Drew’s] long term and ongoing distress from gender dysphoria, the likely negative long term impacts of non-treatment, the non-existence of an alternative treatment, the necessity of Phase 2 treatment for [Drew’s] long term health and wellbeing, [Drew’s] agreement to and, in my opinion, his ability to make an informed decision regarding phase 2 treatment and [Drew’s] parents’ total agreement and consent for the treatment.

6. Dr T, psychiatrist, prepared a report following his recent interview of Drew.  Dr T’s report included quite a comprehensive background, referring to many of the matters to which I have referred in the above Background.

7. Dr T described Drew’s affect as being reactive, with good eye contact.  Dr T said that Drew’s thought form was coherent and organised, and was free of any psychotic, suicidal or depressive cognitions.

8. Dr T reported his opinion about the Phase 2 treatment proposed for Drew as follows:

   a)The nature and purpose of the medical procedure is treatment with the masculinising hormone, testosterone, with a view to ongoing regular treatment.  The purpose of this treatment would be to further align [Drew’s] physical gender characteristics with his inner gender identity.

   b)In my experience, this treatment is necessary to promote [Drew’s] wellbeing and to relieve his suffering.

   c)i)      If the treatment were to be carried out, the short and long term effects would likely include the further promotion of a healthy and integrated identity, positive self-concept and capacity to form relationships and evolve into a healthy and well-adjusted adult.  A permanent cessation of suicide attempts and self harm behaviours would also be most likely.

   ii)If the treatment is not carried out, ongoing intense frustration and feelings of isolation, disgust with his physical body (which [Drew] continues to actively experience with respect to his female genitalia) and a consequent difficulty forming relationships.  These factors are recognised as triggers for suicide attempts.  Approximately one third of transgender individuals are reported to have attempted suicide at least once during adulthood pre-treatment.

   d)[Drew], his mother…, and [Drew’s] treating medical professionals all concur with the appropriateness of this treatment.

   e)[Drew] demonstrated to me a clear trust and confidence in the doctor/patient relationship.

   f)[Drew] enjoys the wholehearted support of his mother, ...  The school have fully recognised [Drew] as male and he presents at school in the boys’ uniform.  [Drew] experiences his teachers as very supportive.

9. And then, in relation to the specific matter of Gillick competence, Dr T says as follows:

   With reference to the Gillick standard, [Drew] demonstrated a capacity to be able to comprehend and retain existing and new information and provide a full age-appropriate explanation of the nature of the treatment.  He was able to discuss meaningfully, both the advantages and disadvantages, weigh these up and arrive at a position to proceed with the treatment.  He could comprehend the possibility of unforeseen consequences and that the treatment will not act as a universal panacea.  He was ostensibly free of any pressure, pain or other factors that might influence his decision-making capability.

Is Drew Gillick Competent?

1. On the basis of the assessments by the above experts and the opinions they have provided as referred to above, I am satisfied that Drew has achieved the sufficient understanding and intelligence to understand fully what is proposed by the treatment, as described in Gillick, so as to be competent to lawfully consent thereto.

2. Accordingly, in my view, it is appropriate for this Court to make the orders sought.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 11 May 2015.

Associate: 

Date:  22 September 2015