Re: George

[2016] FamCA 136

FAMILY COURT OF AUSTRALIA

RE: GEORGE [2016] FamCA 136

FAMILY LAW – CHILDREN – Medical Procedures – Where the applicants, who are the parents of the child, seek a declaration that the child is competent to consent to the administration of stage 2 treatment for Gender Dysphoria– Where a finding is made that the child is Gillick competent to consent to the medical treatment.

APPLICANTS: The Mother and the Father

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 4 March 2016

JUDGMENT OF: Rees J

HEARING DATE: 3 March 2016

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

IT IS ORDERED

1. The Court declares that George who was born on … 1998 is competent to consent to the administration of Stage 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 full name of George, his family members, his hospital, the Independent Children’s Lawyer, his medical practitioners, his school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of George’s parents’ lawyers, and any other fact or matter that may identify George shall not be published in any way, and only anonymised reasons for judgment and orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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.

3. That 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: George 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 File Number is suppressed

The Mother and the Father

Applicants

REASONS FOR JUDGMENT

1. The Mother and the Father (“the parents”) have applied for a declaration that their child George who was born in 1998 is competent to consent the administration of Stage 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. In the alternate, the parents seek an order that they be authorised to consent to the proposed treatment.

3. The treatment which is proposed for George is hormone therapy for transition from female to male. No surgical intervention is proposed at this time. George, who will reach his 18^th birthday in 2016, has decided, with the assistance of his parents and his treating doctors, to defer any surgical procedure until he is an adult.

4. An Independent Children’s Lawyer (“ICL”) has been appointed for George. The ICL appeared at the hearing and made submissions in support of the orders sought by the parents.

5. Although the relevant Child Welfare Authority is not a named respondent to the application, the application and supporting affidavits were served upon the Secretary of the Authority (“the Secretary”) who appeared by counsel. Counsel for the Secretary advised the Court that the Secretary had made all necessary enquiries and did not wish to participate further in the proceedings. With the consent of the applicants and the ICL, the Secretary was given leave to withdraw.

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 the Chief Justice and 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 to determine whether the child is competent within the meaning of the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick competent”). 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 her Honour’s judgment, the Chief Justice said:

   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 - 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. The issue therefore in relation to George is whether or not he is Gillick competent to consent to testosterone therapy.

6. The ability of a child to make his or her own decision in respect of medical treatment depends upon that child’s 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. The parents relied on affidavits sworn by each of them together with an affidavit of Dr H who is a Staff Specialist Endocrinologist at X Hospital and an affidavit of Dr K, a consultant child and adolescent psychiatrist.

2. Dr K is a child and adolescent psychiatrist who specialises in gender dysphoria. He has consulted with George, alone and with his parents, and his parents on four occasions since February 2015.

3. Dr K, in his report annexed to his affidavit, stated in relation to George:

   In my interviews with [George] and, specifically in the interview conducted on 26 August 2015, [George] demonstrated the following capacities to a very adequate level of satisfaction:

   An ability to comprehend and retain both existing and new information regarding to the proposed treatment. [George] was able to articulate his knowledge of what the Phase 2 treatment comprises, being primarily testosterone injections every several weeks. He understood that the schedule will depend upon the stage of treatment and the type of testosterone being prescribed. He also understood that there are medications available for some of the side effects of testosterone, should they occur. He impressed as being well able to take in new information, retain it and integrate it with his existing knowledge.

   An ability to provide a full explanation, in terms appropriate to his level of maturity and education, of the nature of phase 2 treatment, as being an ongoing course of testosterone usually administered by regular intramuscular injections.

   An ability to describe the advantages of phase 2 treatment in terms of the physical induction of male secondary sexual characteristics (including increased muscle mass, body fat redistribution, deepened voice, facial and body hair), the consequent reduction in the internal sense of desinence between his assigned sex and gender and his experienced and expressed gender, and the facilitation of social recognition and acceptance as a male.

   An ability to describe the disadvantages of phase 2 treatment in terms of an extensive knowledge of the potential medical and psychological adverse effects of testosterone, acknowledgment of the discomfort of injections, the inconvenience and expense of embarking on a potentially lifelong course of medical treatment, and the social risks of alienation, rejection or abuse from some people whom he may encounter.

   An ability to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when he should proceed with phase 2 treatment. [George] expressed the view that, all things considered, the advantages of the treatment definitely outweigh the risks and disadvantages to him.

   He demonstrates the ability to understand that phase 2 treatment will not necessarily address all of the psychological and social difficulties that he had before the commencement of treatment and he is willing to continue to access support and treatment as necessary in this regard.

   I believe that [George] is free to the greatest extent possible from temporary factors that could impair his judgement in providing consent to the procedure.

4. Dr K in his report, set out the clinical findings which led him to conclude that George suffers from gender dysphoria, the nature of the procedure and the ways in which the procedure will benefit George. Dr K also set out clearly the likely short term and long term physical, social and psychological effects of the procedure and the likely effects upon George if the procedure is not carried out. Those are matters which would be relevant if the Court were being asked to authorise the procedure, but that is not the nature of this enquiry, and therefore it is not necessary to set out in detail the evidence of Dr K in relation to those matters, other than to note that Dr K recommends that the proposed therapy would be in George’s best interests.

5. Dr H, in her report states:

   I believe [George] is fully understanding of the proposed treatment. [George] has extensively researched on the internet regarding treatment and asked questions at each appointment regarding the treatment and its impact. [George] has been able to clearly explain to me what is meant by phase 2 treatment and understands the potential for both positive and negative effects of treatment. We have discussed the advantages of phase 2 treatment causing physical changes consistent with male identity and potential disadvantages of phase 2 treatment in particular hair loss and balding, increasing acne, increasing body weight, and potential for adverse mood effects of testosterone therapy including increased aggression and potential for increase in depression. [George] currently does not display any evidence of depression requiring treatment. [George] also understands that there are potential (sic) for consequences of phase 2 treatment that cannot be entirely foreseen at the time of the decision to treat and was as far as I was aware free to the greatest extent possible from temporary factors such as pressure or pain that could impair his judgement in providing consent for the procedure.

6. George’s father, in his affidavit, deposes that George is highly intelligent and has high academic results. He deposed that George is a child who does a serious amount of work before he makes a decision in his life but, once he has made a decision, persists with it. George’s father deposed “[George] is more aware of the content and proposed treatment than I will ever be. It is very evident that he has researched all aspects of it.”

7. George’s mother also deposes to his high academic achievement. She deposed:

   When we first spoke to [George] about his disclosure he had already researched organisations, groups and specialists who were involved in transgender matters. [George] had decided he wanted to transition as soon as possible. However, I suggested he seek professional support. Subsequently my husband and I arranged for [George] to see a psychologist [George] had mentioned, Dr [R]. Initially, [George] was pleased with the visit, as the nature of his gender dysphoria was firmly established. However, [George] determined that he did not want to revisit Dr [R], and sought a referral to see a specialist psychiatrist, Dr [K].

8. George’s mother also deposed:

   [George] has spent time on the internet researching top surgery (bilateral mastectomy and male chest reconstruction surgery) and has made an appointment for a consultation with plastic surgeon [named] in February 2016 to discuss the possibility of this procedure after the completion of his HSC (and after his 18^th birthday).

9. George’s mother deposed:

   [George] usually conducts a lot of background research and information before making a decision. Once he has decided upon something, he is a very determined person. In the case of choosing subjects at school, he spent a lot of time talking to teachers and peers as well as researching the implications of subject choice on future study prospects. There was a great deal of discussion with both myself and my husband before he made a decision.

   However as far as his transition was concerned, [George] had obviously made comprehensive use of the internet to obtain information on gender dysphoria and transition, before he decided to disclose that he wanted to transition. He had the decision to transition without any discussion with us, but after the disclosure we did have numerous discussions about the process and the advantages and disadvantages as well as a time line for transitioning.

10. George’s mother deposed:

    [George] is very well aware of all aspects of the proposed treatment and can have a discussion about the advantages, disadvantages and risks that are involved. I have no doubt that his research has been thorough. When we have had discussions about this he has been able to tell me about the risks, and even how the risks vary within a group of people. He believes that although there are physical and medical risks for him they are insignificant compared to how he feels. He is confident that he is making the correct decision for the long term future.

11. The ICL tendered George’s school reports for the years 2013 to 2015. In his 2015 final report, George is described as a diligent and committed student who has achieved some wonderful results. He is described as thoughtful, diligent and showing initiative and motivation as an independent learner. His history teacher comments on his excellent analysis and impressive use of specific evidence. The observations of George’s teachers as to his maturity and intelligence are similar to those of his parents.

12. I am satisfied on all of the evidence that George has sufficient intelligence and understanding to make the decision to commence therapy and, as requested by his parents, a declaration will be made accordingly.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 4 March 2016.

Associate: 

Date:  4/3/2016