Re: Harley

[2016] FamCA 334

FAMILY COURT OF AUSTRALIA

RE: HARLEY [2016] FamCA 334

FAMILY LAW – MEDICAL PROCEDURE – Gender dysphoria –  declaration of Gillick competence and able to consent.

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie (2013) FLC ¶93-547; [2013] FamCAFC 110
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

APPLICANT: The Mother

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 22 April 2016

JUDGMENT OF: Bennett J

HEARING DATE: 22 April 2016

REPRESENTATION

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

Orders

«FCA_LD221»IT IS DECLARED

1.That the child subject to these proceedings … also known as HARLEY born … 2000 is competent to consent or refuse to consent to such medical treatment for gender identity dysphoria as is advised by his medical practitioners.

IT IS DIRECTED

2.The name of the child HARLEY born … 2000, Harley’s family members and their occupations, the hospital, Harley’s medical practitioners, Harley’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the names of the parent’s lawyers, and any other fact or matter that may identify Harley shall not be published in any way and only anonymised Reasons for Judgment and Orders (with coversheets excluding the Registry, file number and lawyers’ names and details as well as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 has been handed one full copy of the Order made on 22 April 2016 with the relevant details included for provision to the treating medical practitioners and to enable their execution, and one coversheet of Reasons for Judgment that includes the file number and the 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.

4.The application filed 22 April 2016 be otherwise dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Re: Harley.

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order File Number is suppressed

The Mother
Applicant

REASONS FOR JUDGMENT

Introduction

1. The applicant mother of a child (“the child” or “Harley”) whose name I will not reveal seeks a declaration that her son (for the child identifies as male) is competent to consent to Stage 2 cross-sex hormone treatment for Gender Dysphoria.

2. The application is made by the child’s mother and supported by the child’s treating clinicians from X Hospital.

3. It is an urgent but non-controversial application.

4. After reviewing the evidence and hearing the submissions of counsel for the mother, I granted the mother’s application and said that I would deliver my reasons subsequently. These are those reasons.

The application

1. The application was filed on 22 April 2016 and was heard that afternoon.

2. Both parents attended Court. The child did not attend.

3. The application is supported by the following evidence:

   a)Affidavit of Dr K, Consultant Psychiatrist, sworn 10 March 2016 which has annexed to it a report in relation to the application for Stage 2 treatment for Gender Identity Dysphoria (dated 9 February 2016);

   b)Affidavit of Dr T, Paediatrician and sub-Specialist Adolescence Physician, affirmed 9 March 2016 which has annexed to it a report in relation to the application for Stage 2 treatment for Gender Identity Dysphoria (dated 4 March 2016);

   c)Affidavit of Dr P, Consultant Psychiatrist, sworn 7 April 2016 which has annexed to it a report in relation to the child’s application for Stage 2 treatment for Gender Identity Dysphoria (dated 20 March 2016);

   d)The affidavit of the mother affirmed 19 April 2016;

   e)The affidavit of the father affirmed 19 April 2016.

4. The evidence is not challenged. It is well reasoned and internally consistent. I accept the evidence.

5. Notably, the expert reports were published in February and March 2016 and the parents’ evidence was affirmed on 19 April 2016. Had the parents’ evidence been prepared at the same time as the final instalment of the medical evidence, presumably the application could have been filed and determined a month ago.

6. The mother has been represented by a firm of solicitors and Queen’s Counsel on a pro bono basis. I was informed that Drs T, K and P each provided their expert evidence free of charge to the applicant mother and that the Hospital has not charged for their services.

7. The fact that the applicant mother has not paid for legal representation or expert evidence reduces the burden on the family in economic terms. However, I recognise the significant emotional toll associated in instituting and participating in any court proceeding, not the least part of which is uncertainty around whether there will be a determinative outcome on the day the matter is first listed or if the relief will be granted at all. This is not a burden solely for the applicant. It falls to a very great degree on the child and, doubtless, has been a source of anxiety for him which he could well have done without.

8. I also recognise the indirect cost associated with this application and borne by the Hospital through the time and effort expended by Drs T, K and P in providing evidence as requested.

The facts

1. Harley is 16 years old and the second child of the mother and the father. He lives with his mother, father and siblings in a capital city. He completed Year 10 in 2015 and is in Year 11 at present.

2. The mother is 43 years old and works with children. She and the father are married and have been in a stable relationship for about 19 years. The evidence suggests the parents have gone to great lengths to provide a supportive and caring family environment for each of their children.   

3. The mother deposes that the child, from as young as three, has questioned his physical appearance and why he looks different to other males.

4. From three and half years of age Harley has elected to wear boys’ clothing, and displayed stereotypically male orientated interests including playing with boys’ games and toys and refusing to wear dresses.

5. At kindergarten Harley refused to go to the toilet with the girls and would get up with the boys instead. He began to hate dolls and began to dress like his older brother. He also spoke about growing and/or buying a penis. This behaviour continued into primary school. 

6. From the age of four, Harley was prone to self-harming. “He would pull at his clitoris because he thought he had a penis inside. He would get butter knives to try and cut his clitoris so that his penis could come out”.[1]  

   [1] Affidavit of [the mother] affirmed 19 April 2016 [14].

7. From preparatory level at primary school he refused to participate in girls’ activities and adamantly referred to himself as a boy. 

8. In 2007, during a counselling session in grade one, Harley revealed that he wished he could go to sleep like his cousin and not wake up until he was a real boy with a penis. As a consequence, he was referred to Dr P at X Hospital. 

9. From the age of about seven, Harley has requested to be identified by a boy’s name. There were several iterations before he settled on his current name when he was nine years old. From 2009 his family have only identified and referred to him as Harley. While the school refused to recognise his new name he became known as Harley “at home and at other activities such as, karate and swimming”.[2]

   [2] Ibid [20].

10. Harley moved schools on two occasions, the first when a teacher referred to him as his girl’s name in and outside of school; and the second when a fellow student who knew him in kindergarten called him a girl and pulled down Harley’s pants in front of other students. The resulting emotional distress and discomfort following each incident had an impact on the family and Harley refused to return to school.

11. Harley settled at his current secondary school in 2013. The school has been fully supportive and aware of his circumstances. Currently in year 11, he went on exchange overseas in year 10 and his mother deposes at school he “is a well-accepted young man and has a nice group of friends at school. [He] enjoys soccer and swimming and reading”.[3]

    [3] Ibid [30].

12. The parents changed Harley’s birth certificate to reflect his new name and have varied his passport accordingly.[4]

    [4] Ibid [42].

The child’s experience of Gender Identity Dysphoria

1. The child had his first appointment with Dr P on 28 October 2011 and was shortly thereafter diagnosed with Gender Identity Dysphoria.  He has seen Dr P since then on many occasions.

2. The child had his first appointment with Dr H, Endocrinologist, on 5 February 2013 at X Hospital. He attended upon Dr T, Endocrinologist, and sees her every three months.

3. When Harley was 14 years old, he began treatment for Gender Identity Dysphoria at X Hospital and attends every 12 weeks for treatment.

4. In her affidavit, the mother deposes:

   [34] … [Harley] has identified as a male since early childhood. [He] has lived life as a male for the past 10 years, and identifies himself as [Harley]. [Harley] understands intellectually that he is biologically female with no Y chromosome being present and he describes himself as male. [Harley] has always expressed a strong desire to be male.

   ….

   [39]. Since his initial consultation on 28 October 2011, [Harley] has seen Dr [P] on many occasions. [Harley] sometimes refuses to see Dr [P] because he does not see why he has to prove that he is a “real” boy. [Harley] does not acknowledge or accept his life as [his former female name]. [Harley] continues to find the subject difficult to talk about openly with adults including me. However, I know he realises that [the father] and I support him because he has said this to Dr [P] …

   …

   [44]. [The father] and I have had discussions with [Harley] about the proposed treatment and I am confident [Harley] fully understands the nature and consequences of the proposed Stage 2 Treatment to commence male development as treatment for his Gender Identity Dysphoria.

   [45]. [Harley] has attended upon medical staff at [X] Hospital to discuss the proposed testosterone treatment to masculinise his body.

   [46]. From my discussions with [Harley] and what he has said to me I am confident that he understands some of the effects of Stage 2 treatment are irreversible in nature. He has told me he understands that when he is administered testosterone the following changes will occur:

   (a) Deepening and changing of the voice;

   (b) Growth of the Adam’s apple;

   (c) Body hair growth;

   (d) Stopping the development of the ova;

   (e) Muscle development; and

   (f) Possible bone growth.

   …

   [53]. We have made a number of sacrifices around our household for the sake of avoiding arguments, including:

   (a) There are no family photographs in our house because as a child [Harley] was dressed in girl’s clothing and when [Harley] has seen these photographs he has asked if our baby girl had died, therefore it easier (sic) to have no photos at all;

   (b) All … children have separate bedrooms with an ensuite bathroom because this is easier for [Harley] and helps to avoid awkward situations for him; and

   (c) [Harley] has a separate washing machine and washing line because he does not want his clothing being washed with the girl’s clothing.

   [54]. I hope that with the appropriate hormonal treatment that [Harley] would be able to comfortably publicly identify as male, thereby relieve anxiety that he is currently experiencing.

   [55]. [Harley] regularly and increasingly expresses anxiety to commence treatment to “change” his body, and has been consistent in his desire to transition to a male since he first articulated this to us at the age of 3 years.

5. The father deposes that he supports Harley obtaining treatment for Gender Identity Dysphoria and the orders the mother is seeking. 

6. The child first consulted Dr P in October 2011 when the child sought assistance with his distress in relation to his gendered body. Subsequently, Harley was referred to Dr P by his “paediatrician for further assessment of his experience of gender dysphoria”.[5] During the initial sessions, Dr P undertook a mental health evaluation and an assessment of Harley regarding his experience of gender. Dr P has seen Harley in conjunction with his parents and at various times along with his siblings, as part of his therapeutic work. 

   [5] Affidavit of Dr P sworn 7 April 2016, Mental Health Report, X Hospital Gender Clinic, dated 20 March 2016, 1.

7. In his Mental Health Report, dated 20 March 2016, Dr P deposes to the child’s history and presentation as follows:

   [Harley] strongly identifies as a boy, his preferred name is [Harley] and he prefers to be addressed with male pronouns.

   …

   Mental Health:

   [Harley] is a thoughtful, eloquent young person, although often initially difficult to engage in conversation.

   [Harley] has found it difficult at times to comfortably express his emotions, particularly when he feels he is under pressure to declare or defend his gender identity. This He (sic) has been described as being difficult and moody at times, and can be irritated if he feels questioned in relation to his gender.

   I do not believe he has any significant disorder of mental health.

   [Harley] was very pleased to commence puberty suppression treatment with Zoladex as he was increasingly anxious about further feminisation of his body.

   Experience of Gender:

   Since the age of 3 or 3 ½ years [Harley] has maintained to his parents that he is a boy. As a very young child, he insisted on having his hair cut short so that it did not look feminine, and he maintained that he always wanted a male body. At times through childhood has been (sic) very distressed about people identifying him as a girl, and has adamantly insisted on wearing boys clothing. [Harley’s] parents were initially perplexed and concerned for him, but became supportive of him in his identity as a boy.

   [Harley] wears a binder to minimise the appearance of his breasts which he would like to have removed. [Harley] finds it distressing to be reminded of his gender dysphoria, and goes about his day to day activities as a lively active boy. He can be annoyed by things which remind him of his gender dysphoria. He has a good understanding of his position and says that he knows he is a transgender, but that he is also just a boy. At secondary school. (sic) He has always gone to the boys toilets and been strongly identified by teachers and peers as a boy.

   He completed a number of questionnaires in respect of gender: Gender Identity Interview for Young Adolescents, the Utrecht Gender Dysphoria Scale, the Body Image Scale and the Recalled Childhood Gender Identity Scale. These assessments confirm that [Harley] has a clear strong consistent and persistent identity as a boy and that he experiences profound gender dysphoria.

   After comprehensive assessment at [X] Hospital Gender Service, [Harley] commenced puberty suppression hormone treatment (Zoladex) to minimise further feminisation of his body in 2013.  Before commencing this treatment was able (sic) to thoroughly and thoughtfully explore the questions of fertility, on fertility preservation in the context of puberty suppression and subsequent cross-sex hormone treatment.

   He met with Associate Prof [G], consultant gynaecologist to discuss the side effects of hormone treatment upon his fertility. He was adamant that he would not have a baby in his own body, but would like to be a parent when he is older. He is aware of the possibility of adopting a child. 

   Mental Health Second Opinion:

   [Harley] has seen Dr [S], consultant child and adolescent psychiatrist in 2011, in respect of his gender dysphoria. Dr [S] confirmed the diagnosis of gendered identity disorder of childhood.

   Subsequently [Harley] was seen for by (sic) a Dr [K], consultant child and adolescent psychiatrist, in respect of further second opinion regarding diagnosis and care. Dr [K] in January 2013 confirmed that [Harley] has no symptoms of major mental disorder, and that his presentation was consistent with a diagnosis of Gender Dysphoria (DSM-V).

   In summary, [Harley] has a strong persistent and enduring experience since very early childhood of himself as a boy at his core, he is acknowledged as a boy by his peers, family and the broader community, and he describes strong and persistent stereotypical feelings and reactions of a boy. He tries to masculinise his body and voice as best he can, and would like to commence testosterone as soon as possible and also at a later stage chest surgery. He has been pleased to have feminisation of his boy diminished with puberty suppression hormone treatment, but would like his body to become more masculine, as has been happening with his age peers for some time.

8. The child was seen by Dr K in January 2013 for a second opinion. Dr K’s evidence supports Dr P’s diagnosis. Dr K’s Child Psychiatry Report is dated 9 February 2016.

9. Harley has been a patient of Dr T, Paediatrician, since June 2013 and up until March 2016, has had ten appointments with the doctor. Dr T’s report supports Dr P’s diagnosis. Dr T’s report is dated 4 March 2016.

The law

1. Fundamentally the law recognises the principle that adults have freedom of choice.  As Lord Scarman articulated in Sidaway v Board of Governors of the Bethlehem Royal Hospital and the Maudsley Hospital [1985] AC 871 at p 882:

   The right to self-determination, the description applied by some to what is no more and no less than the right of a patient to determine for himself whether he will or will not accept the doctor’s advice, is vividly illustrated where the treatment recommended is surgery. A doctor who operates without the consent of his patient is, save in cases of emergency or mental disability, guilty of a civil wrong of trespass to the person. He is also guilty of the criminal offence of assault. The existence of the patient’s right to make his own decision may be seen as a basic human right protected by the common law.

2. What is at issue in this case, is that the child is not yet 18 and I am bound to determine whether Harley should be treated as an adult for all intents and purposes, assessed by whether he has reached a sufficient understanding and intelligence to enable him to fully comprehend what is being proposed by the Stage 2 treatment; and that he has the capacity to make up his own mind about the decision at hand.

3. In Re: Jamie (2013) FLC ¶93-547; [2013] FamCAFC 110, the Full Court swept aside legal impediments which then confronted young persons suffering Childhood Gender Identity Disorder (also known as Gender Dysphoria in Adolescents and Adults). The Full Court recognised and accepted the psychological and psychiatric origin of the condition, and that treatment was now available which was accepted by the medical community as appropriate.

4. The Full Court also accepted the evidence in that case to the effect that, absent treatment, the young person would suffer irreparable psychological harm. On that basis, and because the procedure at the first stage is reversible, the Full Court found that Stage 1 treatment was not in the class of procedures which required any authorisation from the court so long as there was no controversy between  child, the parents and the treating medical practitioners.

5. In Re: Jamie the Full Court opined that because of the irreversible nature of the second stage of treatment the young person must either be competent to consent to the procedure (as identified in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick”) and accepted into the law of Australia by the High Court in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 ("Marion's Case")) or if such competence is lacking, the court rather than the parents, should give consent. 

1. Re: Jamie, is authority for the proposition that the court would declare whether the young person has the requisite intelligence and appreciation of the procedure contemplated to be able to give informed consent or, in other words, whether the child is Gillick competent. Bryant CJ (with whom the other members of the Full Court agreed on this point) said at [137]:

   [137]. With some reluctance I conclude that the nature of the treatment at stage two requires that the court determine Gillick competence. In Marion's Case, the majority held that court authorisation was required first because of the significant risk of making the wrong decision as to a child's capacity to consent, and secondly because the consequences of a wrong decision are particularly grave.

2. Her Honour went on to say at [138] and [139]:

   [138]. It seems harsh to require parents to be subject to the expense of making application to the court with the attendant expense, stress and possible delay when the doctors and parents are in agreement but I consider myself to be bound by what the High Court said in Marion's Case.

   [139]. That application however would only need to address the question of Gillick competence and once established the court would have no further role. The material in support of such an application, whilst needing to address the proposed treatment and its effects, and the child's capacity to make an informed decision, would not need to be as extensive as an application for the court to authorise treatment and I can see no reason why any other party need be involved, absent some controversy. It would be an issue of fact to be determined by the court on the material presented.

3. Thus the Chief Justice made clear that the application should, in the absence of a dispute between the child, the parents and the doctors, proceed on the basis of un-contradicted evidence which is not susceptible to challenge, which is the case here.

4. I hold to the view I expressed in Re: Martin [2015] FamCA 1189 in relation to Re: Jamie but concede that it is authority binding on me. Following that authority, the procedure for assessing Gillick competency, as envisaged by the Full Court in Re: Jamie at [139] and which now appears in our rules, is a procedure in which the court makes a declaration as “an issue of fact to be determined by the court on the material presented” and, absent any apparent controversy, without a contradictor. It is difficult to see, in reality, what the court can do other than to approve of the treatment explained and recommended to it by competent and qualified clinicians.

5. An alternative approach was taken by his Honour, Justice Cronin in Re: Isaac [2014] FamCA 1134. There, the applicant’s parents were opposed to the medical treatment the child sought. The parents were living overseas and the child was largely self-reliant. In exercising the Court’s power to give parental responsibility for a particular issue to any person under s 64B(2) of the Family Law Act (“the Act”), Cronin J was of the view that general parenting responsibility should be given to the applicant child; that the child was in a period of transition from childhood to adult status and there was no evidence that the child’s parents were acting in any parenting capacity. They had distanced themselves from him, were critical of his way of life and decisions, and did not provide emotional or financial support.

6. Cronin J found that the presumption of the parents having equal shared parental responsibility pursuant to s 61DA when making parenting orders was rebutted in this instance as not being in the best interests of the child. His Honour said as follows at [45]:

   … In circumstances where the parents disagree with their child who has been assessed by three experts as being competent to make the relevant decision, the matters mentioned by the High Court in Marion’s Case and in Gillick, point to the fact that Isaac is in that transition phase from childhood to adulthood and that he does not need his parents’ protection or permission.

7. This reasoning was not urged upon me by counsel for the applicant. Had it been I would not, with respect, have been able to follow it. Parental responsibility is a responsibility which is vested in a person or persons for another, in particular a child. The word “parental” describes the nature of the decisions for which the holder is responsible rather than the identity of the person in whom responsibility is vested. It is contrary to the natural construction of the scheme of the Act to devolve parental responsibility for a child to the child himself. The declaration of competency signifies the child’s attainment of autonomy in relation to medical treatment and that the child no longer needs another person with parental responsibility to make the decision. The Full Court’s reasoning is that in a case such as this a declaration is necessary to alleviate doubt and, implicitly, to protect the doctors who treat the minor child. Having regard to Re: Jamie, the sounder approach is to exercise the court’s powers to grant declaratory relief which is what I now do. Finally, the Full Court reasoned in Re: Jamie that, if the child had not been Gillick competent, parental responsibility would have been insufficient to authorise the procedure. It follows that bestowing parental responsibility for the child on the child would not then provide the child with the authority they need to authorise the procedure.

8. The court has original jurisdiction in relation to welfare of children which is the parens patrie jurisdicition found in s 67ZC(1). Based on that jurisdiction, the court can proceed to make what orders it considers appropriate in accordance with s 34 which provides:

   34(1) The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.

   Consistent with the reasoning of the Full Court in Re: Jamie, which is binding on me, this is the power I will exercise to make the order sought.

Discussion

1. It is apparent from the reports by Drs P, K and T that they were requested by the solicitor for the applicants to address the matters set out in Rule 4.09 of the Family Law Rules. That rule specifies the evidence required to support an application for a Medical Procedure Application. A Medical Procedure Application is defined in the Dictionary to the Family Law Rules as an application seeking an order authorising a major medical procedure for the child which is not for the purpose of treating a “bodily malfunction or disease”. An example of a major medical procedure is specified in the Rules as a procedure for sterilising or removing a child’s reproductive organs. In Re: Jamie, Finn J stated [176] “there is nothing in their Honours’ observations [in Marion’s Case] which can, in my view, be taken as limiting their observations to only a physical, as opposed to a psychiatric or psychological malfunction or disease.” 

2. I will summarise the evidence that the experts were requested to, and did, provide and do so out of respect for their mutual effort and also because it contains some of the evidence upon which I relied in concluding that the child in this case is, indeed, Gillick competent.

3. The child meets the diagnostic criteria for gender dysphoria (DSM-V 302.85) with an affirmed male gender identity.

4. Gender dysphoria refers to the distress which may accompany the incongruence between one’s experienced or expressed gender (here, male gender) and the gender which one was assigned at birth or natal gender (here, female gender). Professor P explains that “gender dysphoria” is not now generally seen as a mental illness although some of the consequences of a young person who does not feel that they are living in the appropriate body, can produce profound emotional distress and social and relationship difficulties. In this case, the child is distressed that, although assigned female at birth, he experiences himself to be male and, as a result, he experiences significant distress about having a female body instead of a male body. The child seeks to be rid of the feminine aspects of his body and wants to develop facial and body hair, a deeper voice and a male body muscular habitus. The child wants people to treat him as a boy consistently with how he experiences his inner, core identity. 

5. The proposed treatment is to administer testosterone on a program and in a form which is individualised for the child. This may include capsules to be taken orally, intramuscular injections, pellets inserted beneath the skin and testosterone patches and gels which are applied to the skin. It is likely that the child will be given low, shorter-acting doses to begin with and, if he tolerates those well, the doses will be increased and administered in a longer acting form.

Understanding of the known risks

1. Dr T has discussed the risks of the treatment with the child and his parents. Dr T reports that Harley acknowledges the known risks including the reversible and irreversible physical changes that the treatment will produce have been discussed with the child. Dr T states that:[6]

   .... [Harley] is of normal intelligence and social capability. He understands what the treatment will mean for him in the long term including the known risks and benefits. [Harley] underwent formal fertility counselling by Adolescent Gynaecologist Professor [G] prior to commencement of stage 1 treatment. This counselling occurred on the 17^th July 2013. I have had a number of discussions with [Harley] about the effect of testosterone on his body and the possible consequences including that of fertility since this time. [Harley] understands these issues.

   [6] Affidavit of Dr T affirmed 9 March 2016, Report dated 4 March 2016, 4.

Physical, social and psychological effects on the child

1. The treatment will result in a masculinisation of the child’s body with the development of male secondary sex characteristics which the clinicians say is appropriate and will lead to an improvement in the child’s social experience. He will become more confident moving amongst his peers in day to day activities such as at school and in other social situations. The child will feel much more confident in his personal and potential sexual relationships. Dr P reports the child says that he increasingly distressed at being aware of the difference between his own physical development and that of his peers, particularly as his friends are boys.

2. After treatment, however, the child will feel much more competent and confident in social situations and, Dr P believes, will be able to develop a more confident interest in his own sexuality and be able to explore interpersonal relationships. Psychologically, the treatment will result in a more masculine emotional experience for the child together with the likely stimulation of more assertiveness and sexual desire. Dr P opines that the child will experience profound relief at the masculinisation of his body.

3. Dr P reports that if the procedure is carried out Harley “will benefit substantially in the long term if he is able to commence testosterone treatment as soon as possible. Testosterone treatment will see an appropriate masculinisation of his body with the development of male secondary sex characteristics”.[7]

   [7] Affidavit of Dr P sworn 7 April 2016, Mental Health Report, X Hospital Gender Clinic, dated 20 March 2016, 6-7.

4. With regard the social and psychological effects for Harley if the procedure is carried out, Dr P describes as follows:[8]

   The masculinisation of [Harley’s] body will lead to an improvement in his social experience. [Harley] will become more confident in moving amongst his peers in day to day activities such as at school and in other social contexts. He will feel more confident in exploring and developing personal and potential intimate and sexual relationships in the future. [Harley] says that he has become increasingly distressed at being aware there is a big difference between his own physical development and that of his peers, particularly his friends who are boys. He would like testosterone to help with the deepening of his voice. After treatment, [Harley] will feel much more competent and confident in social situations and I believe he will be able to develop a more confident interest in his own sexuality and more confidently explore interpersonal relationships.

   [Harley] is likely to experience more masculine emotional experience and behaviour with the likely stimulation of assertiveness and capacity to explore his ordinary sexual feelings. This may be accompanied by some intensification of mood, but I believe that the relief experienced by a masculinisation of his body will be profound. 

   [8] Ibid 7.

5. In consideration of whether the procedure is necessary for the child’s welfare Dr K in his Child Psychiatry Report dated 9 February 2016 deposes:

   I believe the treatment will benefit [Harley] by improving his psychological wellbeing, boosting his self-esteem and body image and also likely to have a positive impact on his mental health. It will also improve [Harley’s] peer relationships and school functioning as he will have a degree of relief from the distress around gender issues. Ultimately I believe that the treatment will ensure optimal emotional, social and psychological development.

6. If the treatment is withheld, the child’s body will continue to develop into that of a post-pubertal young woman with further breast development and other feminine changes.

7. Having regard to the impact on the long term effects of Harley’s physical, social and psychological wellbeing if the procedure was not carried out, Dr P reports:

   Physical: Without commencing testosterone treatment, should he ceases puberty suppression treatment, [Harley’s] body will further develop into that of a post-pubertal young woman, with further breast development and other feminine bodily changes. Puberty suppression treatment can not continue indefinitely.

   Social: Without commencing testosterone and masculinisation of his body, [Harley] is likely to become increasingly alienated from his peers and anxious and distressed within himself and in the company of his peers. It is likely that [Harley] will make himself less available to participate in ordinary activities with his friends.

   Psychological: Without commencing testosterone treatment, I believe [Harley] will is likely (sic) to become profoundly distressed, anxious and depressed. He feels that by not being able to access testosterone treatment, which he feels is appropriate hormone treatment for his body, he is being deprived of the possibility of achieving his own developmentally appropriate personal goals. As is likely to become socially isolated, already he has at times become depressed and subject to feelings of sometimes hopelessness. I believe these feelings will increase and intensify significantly without access to cross-gender hormone treatment. Although [Harley] does not really talk about his emotions and feelings, I believe it is likely that feelings of hopelessness and feelings of low self-worth will occur in without (sic) access to testosterone treatment.

8. Dr T expresses concern for Harley’s welfare if the treatment is not carried out. In her report dated 4 March 2016 she states, “[Harley’s] emotional state would deteriorate severely and there would be a significant risk of self-harm or suicide. [Harley’s] physical appearance would remain feminine. This would most likely be intolerable for [Harley], who has an affirmed gender identity that is clearly and unambiguously male”.[9]

   [9] Dr T, Report, dated  4 March 2016, 3.

9. Dr T also reported in regard to Harley’s overall mental health that “[Harley] experiences symptoms of depression and anxiety which are most likely related to his gender dysphoria. I am not aware of other significant mental health issues that are unrelated to gender dysphoria. I feel that there is no reason why [Harley] should be denied access to testosterone treatment”.[10]

   [10] Ibid 4.

Capability of making an informed decision about the procedure

1. Drs P and T consider that Harley is capable of making an informed decision regarding Stage 2 testosterone treatment and that the child wishes to proceed with the treatment a soon as possible. As indicated, the child’s parents agree to the treatment being commenced as soon as possible.

2. Dr P opines that Harley is capable of making an informed decision as “he can demonstrate a clear and thorough understanding of the role of testosterone therapy in changing his body and its potential adverse effects over time”.[11] Dr P’s views are supported by Dr T who deposes:

   [Harley] has been the one driving assessment and treatment for gender dysphoria. I have seen [Harley] on ten occasions since I first became involved in his care on 6^th June 2013. [Harley] has been assessed by a number of other specialists prior to this time and all clinicians had agreed with the diagnosis of gender dysphoria. [Harley] has communicated to me on multiple occasions that he wishes to start testosterone and that he would like to commence this as soon as possible. He has never wavered in his expression of his gender as male and has never been reluctant or ambivalent about wanting to masculinise his body using testosterone.

   [11] Dr P, Mental Health Report, X Hospital Gender Clinic, dated 20 March 2016, 10.

3. While Dr K was not able to comment on whether Harley is currently Gillick competent as he has not reviewed the child recently, he deposes as follows:[12]

   [Harley] was a very bright young person who was able to demonstrate full understanding of the nature of the treatment, including side effects and limitations and was actively requesting the treatment when I assessed him in January 2013. In my opinion [Harley] was Gillick competent and was capable of making an informed decision about the treatment at that time. He understood that some aspects of testosterone treatment are irreversible. I believe that [Harley] had discussed the issues around fertility with a Gynaecologist and is still keen to pursue treatment. I believe that [Harley’s] parents have been supportive and at the same time have held an open mind in order to enable him to make an informed decision. However, I am not able to provide an opinion regarding Gillick Competency at the present time as I have not reviewed him recently.

   [12] Dr K, Child Psychiatry Report, dated 9 February 2016.

Conclusion

1. The overwhelming evidence of the parents and the doctors is the child has the requisite intelligence and understanding of the procedures involved to give his informed consent. Following the authority of Re: Jamie, I declare the child Gillick competent.

2. I am also satisfied that the declaration is in the child’s best interests.

3. In advance of the publication of a wholly anonymised version of the reasons, I direct that a copy of these reasons be provided to the applicants through their lawyer and to Drs P, K and T marked “Strictly in confidence”.

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Legal Associate: 

Date:  12 May 2016