Re: Dylan
[2014] FamCA 969
•5 November 2014
FAMILY COURT OF AUSTRALIA
| RE: DYLAN | [2014] FamCA 969 |
| FAMILY LAW – MEDICAL PROCEDURE – Where the applicants seek an order authorising them to consent to Stage 2 treatment for their child – Where the child is 15½ years old but is not Gillick-competent – Where the expert medical evidence is unanimous in terms of diagnosis and proposed treatment – Whether the proposed treatment is in the child’s best interests. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Gillick v West Norfolk A.H.A [1986] AC 112 Re: Jamie (2013) FLC 93-547 Re: Lucy (Gender Dysphoria) (2013) 49 Fam LR 540 Re: Sam and Terry (Gender Dysphoria) (2013) 49 Fam LR 417 Re: Shane [2013] FamCA 864 Secretary, Department of Health and Community Services v JWB and SMB (“Marion’s Case”) (1992) 175 CLR 218 |
| APPLICANTS: | The Mother and the Father |
| INTERVENER: | The relevant Government Department |
File No: By Court Order File Number is suppressed
| DATE DELIVERED: | 5 November 2014 |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 5 November 2014 |
REPRESENTATION
By Court Order the names of counsel and solicitors have been suppressed
Orders
It is ordered that:
Leave is given for the Court to be closed today for the hearing and determination of these proceedings.
Pursuant to section 100B(1) of the Family Law Act 1975 (Cth), leave is given for the affidavit of the child, DYLAN, born on … 1999 (“the child”), to be filed and read today.
Pursuant to section 100B(2) of the Family Law Act 1975 (Cth), leave is given for the child to be present in Court today for the hearing and determination of these proceedings.
Leave is given for the relevant Government Department to intervene in these proceedings.
It is further ordered that:
Pursuant to section 67ZC of the Family Law Act 1975 (Cth) the Court authorises the Applicants the Mother or the Father, to consent to treatment on behalf of the child under the guidance of the child’s treating medical practitioners including but not limited to his endocrinologist Professor B and his psychiatrist Dr S, for the administration of Intramuscular Primoteston (testosterone enanthate) in such dose, in such manner and with such frequency as determined in consultation with the treating medical practitioners to achieve male puberty.
The full name of the child, the child’s family members and their occupations, the hospital, the child’s medical practitioners, the child’s school, this Court’s file number, 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 the child 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, for provision to the treating medical practitioners and to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.
No person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Dylan 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 No: By Court Order File Number is suppressed
| The Mother and the Father |
Applicants
And
| The relevant Government Department |
Intervener
EX TEMPORE REASONS FOR JUDGMENT
I propose to make orders in conformity with the orders sought in the application. I will now give my reasons for those orders.
Dylan, the child the subject of this application brought jointly by his parents, was born in 1999 and is thus now 15 years and 8 months of age.
Dylan’s parents married in 1997, separated in 2000 and their divorce was pronounced in 2002. Dylan is thus a child of the marriage within the meaning of the Family Law Act 1975 (Cth) (“the Act”). Despite the parental separation, it is clear on the evidence before me that Dylan has had the benefit of caring and loving parents who are devoted to attending to his needs, including his medical needs.
Usually parents can authorise and consent to medical treatment for their child. Here there is no dispute as between the parents as to the appropriateness of the proposed medical treatment for Dylan. However, some types of medical treatment or medical procedures fall outside the scope of parental responsibility and require authorisation by this Court pursuant to its welfare jurisdiction as contained in s 67ZC of the Act.[1] By this application, Dylan’s parents join in seeking the Court’s authorisation pursuant to that welfare jurisdiction of proposed Stage 2 male pubertal induction treatment.
[1] See, for example, Secretary, Department of Health and Community Services v JWB and SMB (“Marion’s Case”) (1992) 175 CLR 218; Re: Jamie (2013) FLC 93-547; Re: Lucy (Gender Dysphoria) (2013) 49 Fam LR 540; Re: Sam and Terry (Gender Dysphoria) (2013) 49 Fam LR 417; Re: Shane [2013] FamCA 864 – Stage 2 treatment for child not Gillick-competent.
The parent’s application is supported, not only by their own affidavits, but by the expert evidence of Dylan’s treating consultant psychiatrist and Dylan’s treating consultant paediatric endocrinologist.
In turn, those doctors have made reference to earlier medical reports and medical records and refer to the outcome of their consultations with equally well qualified colleagues. In addition to that material I gave leave under s 100B of the Act for an affidavit to be filed by Dylan. I have also granted leave for Dylan to be present during the hearing of the application. In my view, Dylan has a right to be heard in the proceedings and receipt of his affidavit is one method of the Court achieving that. I am also mindful of his age and obvious level of maturity evidenced in the material in support of the application.
The application has been served in accordance with the Family Law Rules 2004 (Cth) (“the Rules”) upon the prescribed child welfare authority. An appearance was made by Mr T, solicitor …, on behalf of the relevant Government Department (“the Department”) effectively as amicus curiae in that the Department does not seek to contradict the application.
Neither the applicants by their counsel nor Mr T sought the appointment of an Independent Children’s Lawyer to separately represent Dylan’s interests in the proceedings. I am satisfied that in the circumstances of this case such an appointment would be superfluous to requirements in terms of the Court being able to exercise its welfare jurisdiction under s 67ZC of the Act in Dylan’s best interests.
I should observe that sometimes children who have not yet attained the age of 18 years have the capacity themselves to consent to or authorise medical treatment. In this case the expert medical evidence to which I will refer, in summary, is to the effect that whilst Dylan has some understanding and insight and certainly his own views and wishes about what should occur, neither of the experts is satisfied, given the complexity of the issues involved, that Dylan has a complete or full understanding of what is proposed by way of treatment and its potential consequences.
On that basis both of the treating experts I have referred to, express views to the effect that Dylan does not yet have what is referred to as Gillick competency, being a reference to a decision in England[2] adopted in Australia[3] as to the level of competency required for a minor to be able to consent themselves to their own treatment.
[2] Gillick v West Norfolk A.H.A [1986] A.C. 112.
[3] Secretary, Department of Health and Community Services v JWB and SMB (“Marion’s Case”) (1992) 175 CLR 218.
Dylan was born with a rare form of Congenital Adrenal Hyperplasia known as 11 Beta-hydroxylase deficiency. Dylan is genetically a female but was virilised at birth and has always been raised as a male. Whilst Dylan has the chromosomal makeup usually associated with the female sex, his external genital appearance is that of a male with a penis and scrotum, although without testes.
As a result of the severity of Dylan’s condition causing him to look male, it was not recognised for sometime after his birth that he was, in fact, genetically female. The diagnosis was not made until Dylan was about 15 months of age at the X Hospital.
It is clear on the expert medical evidence that Dylan’s condition has been medically managed ever since its diagnosis. It is equally clear that from an appropriate age Dylan came to know about his condition. For example, Dylan’s father first began speaking to Dylan about his condition and the fact that he is “part female” when Dylan was 11 years old. Shortly thereafter Dylan began attending upon the child psychiatrist Dr S as well as a psychologist, Ms F, who gave Dylan advice as to his underlying medical condition.
At that stage Dylan was given a “simple explanation of the fact that although he is male, he has some internal female ‘bits’ which could be removed at some time in the future.” [4] In June 2012 Dylan had a pelvic MRI scan and the findings from that scan were explained to Dylan and his mother at the time. In particular, it was explained to Dylan that he could potentially be fertile as a female in the future if he wished. Dylan has the capacity to have a genetic child through retrieval of his ovarian tissue and this possibility will exist, “as long as [Dylan’s] ovaries remain in situ and despite concomitant testosterone therapy” that is proposed to induce male puberty.
[4] Affidavit of Professor B filed 21 October 2014, [27].
Dylan and his family are aware that if Dylan continues to live as a male he will eventually need to have his internal female organs removed. However at the present stage, the medical plan recommended by the expert treating medical practitioners is to defer such surgery until Dylan reaches the age of 18 years and is able to make his own decisions and give his own consent to that procedure.
At paragraphs 37 to 39 of her affidavit, Professor B describes the future plan for Dylan’s treatment and the reasons why she identifies that future plan as being the best course of action:
37. Once pubertal induction was complete, [Dylan] would need to stay on maintenance testosterone replacement to achieve normal adult male testosterone levels. This could be in the form of Depot Testosterone injections every 3 months, testosterone subcutaneous pellets every 3-6 months, testosterone patches or gels administered daily or daily oral testosterone capsules.
38.I also proposed that [Dylan] have testicular prosthesis inserted once pubertal induction is complete if he so wishes.
39.The reasons I have recommended male pubertal induction and insertion of testicular prostheses are:
(a) [Dylan] has been consistently raised as a male; and
(b)the opinion of Dr [S] and Mrs [F], Clinical Psychologist, expressed to me is that [Dylan] has a stable male gender orientation and that there would be psychological risks for [Dylan] in delaying male pubertal induction or in allowing “female” puberty to occur.
The proposed treatment is called Intramuscular Primoteston (testosterone enanthate), more commonly referred to as male pubertal induction which is essentially a cross-hormone treatment with testosterone. The result of this treatment is that it will induce a normal male puberty which Dylan has not yet commenced.[5] At the same time, Dylan’s paediatric endocrinologist, Professor B, will continue to administer intramuscular Depot Lucrin which will suppress the onset of female puberty. The treatment will be administered by oral testosterone capsules initially, with intramuscular testosterone injections to follow.[6]
[5] Affidavit of Professor B filed 21 October 2014, [35].
[6] Affidavit of Professor B filed 21 October 2014, [36].
The proposed treatment for Dylan is classed as a Stage 2 treatment in medical and legal terms which means that the treatment will have some irreversible consequences for Dylan. There is evidence that the procedure will bring about irreversible physical changes to Dylan including a broken voice, the development of an Adam’s apple, the development of secondary sexual characteristics commonly seen in other adolescent males such as facial, pubertal and other body hair, lengthening of his phallus, increased muscle mass and the deepening of his voice. In the opinion of Professor B this treatment may have some effect on Dylan’s ovaries however, it may still be possible for Dylan to be fertile as a female should he choose that later in life.
I record that Dylan has clearly stated to his parents and to his treating medical practitioners that he agrees to, and wishes to undergo, the proposed treatment. Indeed, he has done so by his affidavit filed in this Court. On the expert medical evidence of each of Dr S and Professor B, Dylan has been progressively given factual information about his diagnosis since he was 11 years of age.
As earlier referred to, each of Dr S and Professor B express opinions to the effect that, whilst D understands his complex medical diagnosis on a factual level, that is, that he has female chromosomes and internally he has female genital anatomy which means that he could potentially be fertile as a female in the future, they do not consider him to be presently Gillick-competent. Professor B deposes that, while Dylan understands the factual information about his condition, it is her opinion that Dylan is not yet confident as, “he does not fully comprehend the irreversible physical effects of male pubertal induction and the health risks involved.”
For his part, Dr S deposes, “… pubertal induction with testosterone raises numerous social and psychological issues which many young adults would find challenging to understand”, which is why Dr S believes that Dylan would not be competent to make a decision in this regard until he reaches 18 years of age.
I am satisfied on the evidence of Dr S and Professor B, which I accept, that Dylan is not Gillick-competent in that he has not, “… achieve[d] a sufficient understanding and intelligence to enable him … to understand fully what is proposed.”[7]
[7] As expressed in the decision of Secretary, Department of Health and Community Services v JWB and SMB (“Marion’s case”) (1992) 175 CLR 201, 183.
The question for this Court in the exercise of the welfare jurisdiction referred to is whether authorisation is in Dylan’s best interests within the meaning of the Act. A number of central factors appear in the medical evidence and other evidence which I accept as to why authorisation of the proposed treatment is in Dylan’s best interest. In particular, that evidence reveals that:
a)In the opinion of Dylan’s highly qualified treating medical practitioners, being a paediatric psychiatrist and a paediatric endocrinologist, the proposed treatment is in Dylan’s best interests as it would bring about positive psychological and social consequences for Dylan.
b)Dylan has always identified as being a boy, which is consistent with how he was raised and his external male genitalia.
c)Dylan has a “fixed male gender identity” according to Dr S. As such, he should be allowed to develop as a male. That is, develop secondary sex characteristics commonly seen in other adolescent males including the development of facial, pubertal and other body hair, lengthening of his phallus, increased muscle mass, deepening of his voice, development of an Adam’s apple, as referred to by Dr S.
d)At present, Dylan, on the evidence, is becoming increasingly upset or agitated by the absence of male pubertal development and the absence of testes. As referred to by Professor B, most boys who are 15 years old would be experiencing normal pubertal development whereas Dylan is not.
e)Dylan’s parents plainly love Dylan and are caring of him and I take into account that they have given thoughtful consideration to the proposed treatment as being in Dylan’s best interests in ultimately reaching their agreement with the proposed treatment.
f)If Dylan is not treated with testosterone, his pubertal suppression may fail in the future which would cause Dylan to undergo female puberty. This means Dylan could start having menses which would cause a number of medical and psychiatric problems. In particular, Dr S deposes, “… given that the vaginal opening is blind (fusion of his labia that now appear [sic] as a scrotum), he would develop a haematometria (where the uterus fills with menstrual blood) and a haemotocolpos (where the vagina fills with menstrual blood). Surgical intervention will ultimately be required.”[8] Obviously enough, given the background referred to, should Dylan commence menses this would obviously cause significant psychological distress.
g)As Dylan has consistently identified as being male, it is, as Dr S puts it, “…reasonable to presume that he will be at an increased risk of a range of mental health disorders including depression, should the proposed hormone treatment not take place and he is denied the opportunity to go through male puberty.”
[8] Affidavit of Dr S filed 21 October 2014, at [54(c)].
Commencing at paragraph 45 of her affidavit, Professor B outlines the nature and degree of any risk to Dylan as a result of the proposed hormone treatment. She there deposes:
45.The proposed treatment is the same as Phase 2 or cross hormone treatment used in female to male gender dysphoria and would have the same associated risks.
46.Administration of testosterone in this context is associated with a high long term risk of serious adverse outcomes, including breast or uterine cancer, and erythrocytosis with a haematocrit greater than 50%. There is also a moderate to high risk of severe liver dysfunction and temporary or permanent decreased fertility. The risk associated with treatment cannot be reduced; hence very careful monitoring is essential.
It is thus clear that there are very significant risks associated with the proposed treatment. Further, the treatment will have irreversible effects on Dylan’s physical appearance including a broken voice, development of facial hair, an Adam’s apple and other male body features. However, based on the expert medical evidence, male pubertal induction is in Dylan’s best interests, particularly as it is the only viable treatment for Dylan’s current condition.
At paragraphs 47 to 48 of her affidavit Professor B outlines the alternatives that have been considered to the proposed male pubertal induction treatment. She there expresses why that treatment is recommended in preference to any alternative, and I quote:
47.One alternative to the proposed medical treatment would be to stop pubertal suppression. This would result in [Dylan] undergoing a female puberty which would be psychologically devastating and may lead to obstructed menstruation and an abdominal emergency.
48.Another alternative would be to continue [Dylan] on pubertal suppression, not induce male puberty and effectively allow him to remain prepubertal until the age of 18 years. In my opinion this would be psychologically and socially very damaging for [Dylan].
It can thus be seen that whilst there are significant risks associated with the proposed procedure, there are overwhelming balancing considerations as to these risks being outweighed by the benefits the procedure would bring to Dylan’s life and the avoidance of drastic detriments identified of the alternatives.
I am satisfied that it is consistent with Dylan’s best interests that these benefits should be taken advantage of and that the proposed treatment ought be authorised in Dylan’s best interests.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 5 November 2014.
Associate:
Date: 5 November 2014
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