Re Elliott
[2017] FamCA 1008
•11 December 2017
FAMILY COURT OF AUSTRALIA
| RE: ELLIOTT | [2017] FamCA 1008 |
| FAMILY LAW – MEDICAL PROCEDURES – Gender Dysphoria – Applicant parents seek order that child is competent to consent to stage two treatment for Gender Dysphoria – Applicants seek alternative order that they be authorised to consent to the administration of stage 2 treatment for the child –Where there is no unanimity amongst the child’s medical experts that child is Gillick competent – Where there is deficient evidence to conclude child is Gillick competent – Where parents and child’s medical experts are unanimously of the view that stage two treatment is in the child’s best interests – Where applicants pressed for them being authorised to consent to treatment for the child – Findings that it is in the child’s best interests for parents to authorise stage two treatment – Where orders relating to confidentiality are made. |
| Family Law Act 1975 (Cth) s 121(9) |
| Re: Kelvin [2017] FamCAFC 258 Re: Jamie (2013) FLC 93-547 Gillick v West Norfolk and Wisbech Area Health Authority [1968] AC 112 Secretary, Department of Health & Community Services v JWB & SMB (“Marion’s Case”) (1991-1992) 175 CLR 218 Re: Darryl [2016] FamCA 720 Re: Lincoln (No. 2) [2016] FamCA 1071 |
| FIRST APPLICANT: | The Father |
| SECOND APPLICANT: | The Mother |
| DATE DELIVERED: | 11 December 2017 |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 15 November 2017 |
REPRESENTATION
| SOLICITORS FOR THE APPLICANT: |
By Court Order Solicitors names have been suppressed
Orders
That the applicants are hereby authorised to consent to stage two treatment for , born … 2000 (“the child”) for the condition called Gender Dysphoria in Adolescents and Adults, comprising the administration of testosterone in such dose, in such manner and with such frequency, as may be determined by his treating medical practitioners from time to time, so as to achieve male puberty.
The full name of the child, his family members, his hospital, his medical practitioners, his school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of the child’s mother and father and any other fact or matter which may identify the child shall not be published in any way save as permitted by this order or further order of this Court.
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.
That the child be at liberty to identify himself as the subject of this application and as the child the subject of this decision if he may chose.
To the extent that the exception provided for in s 121(9) of the Family Law Act 1975 (Cth) does not otherwise authorise it, the mother and father and the child have leave to publish to the child’s treating health practitioners (including by inserting a copy of the orders on the child’s medical record) a copy of these orders which are not anonymised pursuant to order 3 hereof.
Each of the parties to these proceedings and the child shall be at liberty to obtain a full copy of these orders, and the reserved reasons for judgment when published, with all of the identifying details.
No person be permitted to search the court file in this matter without first obtaining leave of a judge.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
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: Elliott 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 Father and The Mother |
Applicants
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed 25 October 2017, the father and the mother sought orders permitting their child, Elliott, born in 2000, and hence 17 years of age (“the child”) to undergo stage 2 treatment for his Gender Dysphoria. Specifically they sought a finding that the child is Gillick competent to make the decision to consent to the administration of testosterone, but in the alternative sought orders authorising the parents to consent to such treatment on his behalf. On 15 November 2017, I made orders in the latter alternative for reasons to be subsequently published. Since then, the Full Court’s decision of Re Kelvin FamCAFC 258 has been delivered, meaning that the application was, in fact and in law, unnecessary. Nonetheless these are my reasons for ordering as I did.
MATERIAL RELIED UPON
The applicants’ rely upon the following material:
·An affidavit of each of themselves;
·An affidavit of Dr B (a child psychiatrist);
·An affidavit of Dr Q, a psychiatrist;
·An affidavit of Dr G, a physician specialising in sexual health medicine.
In addition I gave leave for the applicants to also rely upon an affidavit of the child, which was filed on the day of the hearing.
BACKGROUND FACTS
The mother was born in 1964 and is presently 53 years of age. The father was born in 1966 and is presently 51 years of age. They married in April 1997 and have only one child to their relationship, being the child the subject of these proceedings.
The mother recalls that although born as female, the child has, from the moment he could talk, said that he did not wish to wear dresses. Additionally he liked playing with toys and the like often thought as more masculine in type.
Puberty was a difficult time for the child and he suffered from depression and self-harmed. The parents became concerned that the child may in fact have Asperger’s Syndrome, and in the course of counselling to determine whether that was so or not, the child disclosed to the counsellor that he saw himself as transgendered. The mother became suspicious that that may have indeed been the case, and ultimately asked the child directly whether he was transgendered, to which he replied in the affirmative. The child was in grade 8 at the time.
Notwithstanding that disclosure, the child continued to self-harm by burning, scratching his forearms, thighs and hips. The child told Dr Q that he particularly focussed on his hips “due to an increasing dislike of developing female curves.”
Ultimately the child began to live as male at school and in the community. He commenced wearing masculine clothes in public including male underwear, and binds his breasts.
He commenced upon Lucrin in June 2016, to arrest his physical development as female.
The mother moved to Town X from Town Y with the child in November 2016, so as the child could have better access to support services for transgendered persons. However the child missed his friends in Town Y and found Town X to be too overwhelming, and moved back to live with his father in Town Y in February 2017. The mother however remained living in Town X and it appears as though the parties regard that as a final separation.
As at the time of hearing, the child remained living with his father in Town Y and was completing his final year of schooling there.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
Relevant to this application are the following uncontroversial propositions of law derived from the Full Court decision of Re: Jamie (2013) FLC 93-547 at [140] per Bryant CJ:
·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;
·If the child is Gillick competent, then the child can consent to the treatment;
·The question of whether a child is Gillick competent, even where the treating doctors and their parents agree, is a matter to be determined by the court.
It is also uncontroversial that Gillick competence is established if the child in question “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”: see Gillick v West Norfolk and Wisbech Area Health Authority [1968] AC 112 at 183-184 and Secretary, Department of Health & Community Services v JWB & SMB (“Marion’s Case”) (1991-1992) 175 CLR 218 at 237.
However the law is less clear as to what the court’s role is where there is a dispute in relation to whether or not the child is Gillick competent. The leading authority is again Re: Jamie. In that case the court espoused two, and perhaps three conflicting answers. The first is contained in the judgment of Bryant CJ, and is to the effect that “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…” : at [140](f).
The second approach was espoused by Finn J in the following terms at [188]:
If the court was completely satisfied of the child’s capacity to consent to state 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.
Plainly these approaches are not consistent: the approach of Bryant CJ is to require a best interests determination if there is a dispute on the evidence; the Finn J approach does not require a best interests consideration in such circumstances unless the court is in any doubt about the Gillick capacity, or arguably, even absent a conflict of evidence, otherwise has doubt about that capacity.
The approach of the third judge in Re: Jamie, Strickland J, does not assist in resolving that conflict. Although at [192] his Honour agreed “with the outcomes proposed by both of my colleagues and generally for the reasons set out by each of them,” he did not advert to the conflict between them identified above. Moreover, at [195] his Honour may have propounded a third test, because there he indicated that court authorisation would not be required “where the child is able to give consent to the proposed treatment.”
Subsequent cases do not seem to have provided any further clarification in relation to this point.
In Re Darryl [2016] FamCA 720 at [3] – [9] I recited the above, but concluded that, on the particular facts of that case, I was absolved from needing to attempt to try and establish more definitively the circumstances in which a court may be obliged to determine whether the procedure should be authorised, as distinct from permitting the child to consent.
GILLICK COMPETENCE
This case is a little unusual in that, unlike the vast majority of such applications, there is no unanimity in relation to the medical opinion as to whether or not the child is Gillick competent. Particularly, although Dr B, a child psychiatrist, opined that the child “is Gillick competent. I believe that he is able to understand fully what is proposed in phase 2 treatment, he understands the pros and cons of the treatment and the consequences of having or not having it.” Dr Q did not agree. At paragraphs 92-94 of his report he said as follows:
92. In my experience, and assessment of Gillick competence usually occurs in the context of decisions that are for life-saving treatments, time limited treatments, or treatments that have only specific short term risks. The nature and effects of such decisions are more readily understood by the treating team and the patient, making the assessment of competency of a child more reliable.
93. By comparison, the gravity of the consequences of phase 2 hormone treatment is much more significant. The treatment is intended to have life-long consequences, which are both social and medical. The treatment also involves well documented significant risks that may develop years or even decades after commencement of the medication. In these cases the assessment of Gillick competency is far more challenging.
94. I am not persuaded that [the child] fully understands the nature and effect of the decision to undergo phase 2 treatment because I do not believe that, at his age, he is able to fully understand the concept of irreversibility nor the deferred nature of the real risks of life-long treatment. In the circumstances, I am uncertain if [the child] has the capacity to consent to the proposed treatment.
An additional problem on the material was the way in which the evidence in relation to Gillick competency was cast. I have already recited the evidence of Dr B, and to like effect was the report of Dr G, which simply said:
I consider that [the child] is capable of giving informed to consent as he fully understands his transition.
In the course of argument, I directed the solicitor for the applicants to the discussion to the sort of issues that inform Gillick competence, recited in the judgment of Johnston J in Re: Lincoln (No 2) [2016] FamCA 1071, which (adapting the recital of the evidence of the relevant psychiatrist in that case) contains a very useful checklist as follows:
·An ability to comprehend and retain both existing and new information regarding the proposed treatment;
·An ability to provide a full explanation, in terms appropriate to the child’s level of maturity and education, of the nature of the treatment;
·An ability to describe the advantages of the treatment;
·An ability to describe the disadvantages of the treatment;
·An ability to waive the advantages and disadvantages in the balance, and arrive at an informed decision about whether or when the treatment should proceed;
·An acknowledgment that the treatment may not necessarily address all of the psychological and social difficulties experienced before its commencement;
·Being free, to the greatest extent possible, from temporary factors such as pressure of pain that could impair judgment in providing consent to the treatment.
It seems to me that list usefully emphasises the differences between the child being informed, on the one hand, with being able to process that information into an informed consent, on the other.
Ultimately, in light of the conflict in the evidence, and the way in which the evidence as to Gillick competence was expressed, the applicants abandoned that part of the application which sought a declaration as to Gillick competence, and only pressed for the alternative relief, namely that they be authorised to consent to treatment on behalf of the child. In my view, that approach was sensible.
BEST INTERESTS OF CHILD
Notwithstanding the conflict between the opinions of Dr B and Dr G on the one hand, and Dr Q on the other as to Gillick competence, they were nonetheless unanimous in their view that it was in the best interests of the child to commence phase 2 treatment. Particularly Dr B said that phase 2 treatment would improve the child’s anxiety and depression, but on the other hand if it was not provided, would prove detrimental to his mood and anxiety and impact adversely on his identity and self-esteem. She concluded that there were no mental health risks of commencing phase 2 treatment, and in any event noted that if the child proved not able to tolerate that treatment, there is an option of ceasing it.
Dr Q noted that young people with gender dysphoria suffer from high rates of mental health problems, albeit they were not necessarily alleviated by hormone therapy. As to this particular child, he noted that it is unlikely that the child will stop identifying as suffering from gender dysphoria and was of the view that if testosterone treatment was not provided to the child, he is likely to continue to experience ongoing gender dysphoria with associated mental health issues, such as significant risk of low mood, anxiety, social isolation, suicidal and self-harming behaviours.
In concluding that the proposed treatment was in the child’s best interests, he particularly focussed on the reduction of risk of development of mental health issues. He said that from a mental health and psychiatric view point, he believed that hormone treatment with testosterone was necessary for the child’s welfare.
To like effect Dr G though that the child’s mental health will improve once he commenced on testosterone, but conversely, in the event that the treatment were delayed, it would likely “add negatively to [the child’s] mental health.”
These professional opinions were mirrored in the parents’ affidavits. The mother said she thought that there was a grave risk in relation to the child’s mental health if he were not able to start testosterone, and that “she absolutely believes that the testosterone treatment is in the child’s best interests.” For his part the father said that he has “seen some improvement in [the child’s] wellbeing since he started living as male but at the moment he is in limbo.” He was troubled that the child’s depression may significantly worsen if he were not able to start testosterone.
There was, in any event, an air of artificiality to this whole enquiry because on any view, come 12 May 2018, the child will be legally adult and able to consent to treatment himself. There is no prospect on the evidence that he is likely to desist in his desire to transition to male in those six months.
Even leaving aside that consideration, the material relied upon in the application – which is unanimous in relation to the desirability of the treatment – persuaded me that authorising the parents to consent to the treatment on the child’s behalf was in his best interests.
CONCLUSION
For these reasons I made the orders which I did on 15 November 2017.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 11 December 2017.
Associate:
Date: 11 December 2017
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