Re: Frances

[2017] FamCA 904

FAMILY COURT OF AUSTRALIA

RE: FRANCES [2017] FamCA 904

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Gender dysphoria – Application for Stage 2 treatment for gender dysphoria – Where the child is 16 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

FILE NUMBER: By Court Order File Number is suppressed

JUDGMENT OF:	Rees J
DATE DELIVERED:	10 November 2017

HEARING DATE: 10 November 2017

REPRESENTATION

By Court Order the names of Solicitors have been suppressed

Orders

IT IS DECLARED

1. That the child known as Frances, who was born … 2000, is competent to consent to the administration of Stage 2 treatment being the administration of oestrogen and such other drugs as are prescribed for the purpose of treatment of Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) (“DSM-5”).

2. That the applicants are authorised to provide a copy of these reasons and these orders to any of Frances’s treating medical practitioners.

IT IS ORDERED

1. That the full name of Frances, her family members, her hospital, her medical practitioners, her school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of Frances’s parents’ lawyers, and any other fact or matter that may identify Frances, shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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: Frances 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 applicants are the parents of Frances, who was born in 2000. Frances identifies as female and her parents seek orders which will permit Frances to commence the administration of, inter alia, therapeutic oestrogen which is referred to as Stage 2 treatment for Gender Dysphoria.

2. The application seeks an order to the effect that Frances have “sole parental responsibility for all medical decisions concerning herself”.

3. At the commencement of the hearing I indicated that I was not prepared to make an order in that form but that I would determine whether to make an order that Frances was Gillick competent within the terms used by the Full Court in the decision in Re Jamie (2013) FLC 93-547 (“Re Jamie”).

4. The Secretary of the Department of Family and Community Services has been served with the application but has not participated in the proceedings.

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 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 Frances is whether or not she is Gillick competent to consent to the proposed treatment. If Frances 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. Frances’s mother deposed that she believed that Frances understands the nature of the proposed treatment and the likely side effects of the treatment and that Frances is competent to make this decision for herself. The mother deposed that, in her view, Frances no longer needs the permission or protection of her parents in making decisions about her medical treatment.

2. The mother deposed that she and Frances have discussed the implications of the proposed treatment on Frances’s ability to have children and that Frances understands the gravity of her decision to proceed.

3. The mother deposed:

   Frances is an insightful, intelligent and eloquent individual who is very clear in her thought process … She has undertaken an enormous amount of research herself and is aware of the irreversible changes that will take place on the hormone therapy and in her life and in my mind her decision to proceed has been made with absolute clarity and understanding of what is involved.

4. Dr B, a consultant psychiatrist and psychotherapist, interviewed Frances on four occasions in February and March 2017. Dr B deposed:

   20. Frances was interviewed individually on 15 March 2017 to assess competence to consent to Phase 2 treatment. In this interview she demonstrated that she was:

   20.1able to comprehend and retain both existing and new information regarding proposed treatment – Frances demonstrated that she had a good knowledge about the treatment, its effects and its limitations. She could incorporate additional information that I offered from time to time through the interview.

   20.2able to provide a full explanation, in terms appropriate to her level of maturity and education, of the nature of Phase 2 treatment – Frances said that she would be given an anti-androgen medication as a daily tablet and oestrogen in the form of a tablet once or twice daily. She knew that this treatment would be lifelong, but that once her testes were removed surgically the anti-androgen would no longer be necessary.

   20.3 able to describe the advantages of Phase 2 treatment – the major advantage described by Frances was that she will be more comfortable with her body because of the development of feminine characteristics, including breast development, a female body shape, reduced body hair, reduced muscularity, and finer and more sensitive skin. She said that the hair on her head would probably grow better, she would not go bald and that her voice would not get any deeper. She looks forward to people who have not known her earlier simply assuming that she is a young woman, so that she will be more able to be herself and “drop the whole masculine front” around other people.

   20.4 able to describe the disadvantages of Phase 2 treatment – Frances listed the possible side effects of the treatment as increased risk of blood clots, mood swings, reduced energy, shrinkage of the testicles, reduced sex drive, weight gain and increased risk of diabetes. She said that taking pills every day was not a problem, as it is something that she is already used to. She said that she would not be bothered by having regular medical check‑ups and blood tests as that would ensure that she was in good health.

   20.5 able to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when she should proceed with Phase 2 treatment – While recognising that there were both advantages and disadvantages to the treatment, Frances said that for her “the pros far outweigh the cons”, and that “I’d rather (take the risks of side effects and) be happy being myself”. She wants to proceed with the Phase 2 treatment as soon as possible.

   20.6 able to understand that Phase 2 treatment will not necessarily address all of the psychological and social difficulties that she had before the commencement of treatment – Frances said that she will be less stressed and more comfortable in her body, but that she did not expect the Phase 2 treatment to cure her OCD. She looks forward to having a lot of physical feminising by the time that she has finished school, so that will make her adult years easier for her socially.

   20.7 It is my opinion that name (sic) was free to the greatest extent possible from temporary factors that could impair her judgement in providing consent to the procedure. Frances was interviewed individually so that there was no interference, influence or pressure from other people. She was alert but relaxed through the interview, in no physical pain and demonstrated logical thought processes and intact reality testing. I regard her judgement in providing consent to the Phase 2 treatment to have been unimpaired at the time of interview.

5. Associate Professor T, who is the director of the Department of Endocrinology at the G Hospital and a Conjoint Associate Professor of Medicine at X University, provided a report. He reported:

   I have taken a considerable amount of time to establish the trust of Frances in what is being planned and what is expected to occur following the commencement of a program of transition from male to female identity. Indeed the access to medical and social information online means that Frances already has a considerable amount of information regarding the procedures required and perhaps unsurprisingly in this day and age much of what I was planning to discuss with Frances was indeed already known. As is perhaps to be expected in an age of rapid dissemination of information and electronic access to media and data Frances required some recalibration of priority and hence speed at which respective parts of the process could be put in place but Frances was well aware of what was being planned, how it would be administered and aware of the reversible and irreversible nature of each of the planned processes. Indeed she is also aware of what is irreversible from virilisation that has occurred as part of her initial biology over which she had no choice.

6. Associate Professor T concluded:

   Thus in summary Frances 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. Issues pertaining to infertility were specifically discussed and further investigation and opportunity for semen storage were declined at this stage. The potentially irreversible nature of such actions were explained and keenly sought by Frances at the time of the last consultation.

7. Associate Professor T stated:

   Thus 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 … in conjunction with [her mother], Frances’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.

8. Dr C, a clinical psychologist, has seen Frances for a total of 55 sessions of cognitive behavioural therapy, and supportive counselling, primarily in relation to a diagnosis of Obsessive Compulsive Disorder (“OCD”). Dr C deposed:

   Based on my observations of her over the last months (seen approximately monthly) and based upon feedback from [named institution] staff, Frances’s thinking skills do not currently appear to be overly impacted by either her OCD or depression. In my recent sessions with her, Frances was able to verbalise clearly how she knew when she was being bothered by an OCD intrusive thought, versus when it was a generic worry. She is very aware that the fear associated with OCD intrusions is irrational, and does not describe her gender concerns in this vein. Rather than being ego-dystonic (as is typical with OCD fears), her thoughts about trans-gendering are ego‑syntonic. This suggests that the gender issues are unrelated to OCD.

9. Dr C stated, “I do not believe the clinical evidence supports a position that Frances’s capacity to make an informed decision about trans-gendering is currently impacted by her mental health diagnoses or history.”

Determination

1. Frances will be seventeen in late 2017. The evidence demonstrates that she understands the nature and consequences of the proposed treatment and that she is competent to make her own decision.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 10 November 2017.

Associate: 

Date:  10.11.2017