Re: Jamie (Special Medical Procedure) - [2011] FamCA 248

FAMILY COURT OF AUSTRALIA

RE: JAMIE (SPECIAL MEDICAL PROCEDURE)

[2011] FamCA 248

FAMILY LAW – CHILDREN – special medical procedures – gender identity dysphoria

Gillick v West Norfolk A.H.A [1986] AC 112
Re Alex: Hormonal Treatment for Gender Identity Dysphoria(2004) FLC 93-175
Re Brodie [2008] FamCA 334
Re Marion (No.2) (1994) FLC92-448
Secretary, Department of Health and Community Services the JWB and SMB (1992) FLC 92-293 (Marion’s case)

APPLICANTS:

The Mother and the Father

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: By Court Order, file number is suppressed

DATE DELIVERED:

6 April 2011

JUDGMENT OF:

Dessau J

HEARING DATE:

28 March 2011

REPRESENTATION

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

Orders MADE 28 MARCH 2011

That Mr and Mrs S shall be authorised to consent to treatment on behalf of their child Jamie under the guidance of Jamie’s treating medical practitioners including but not limited to his endocrinologist Dr G and his psychiatrist Dr C, for the administration of Zoladex (a GnRH agonist) and cyproterone acetate in such dose, in such manner and with such frequency as determined in consultation with the treating medical practitioners to achieve suppression of gonadotrophins and testosterone to pre-pubertal levels.
That the full name of Jamie, Jamie’s family members and their occupations, the hospital, the Independent Children’s Lawyer, Jamie’s medical practitioners, Jamie’s school, this Court’s file number, the name of the Family Report writer, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify Jamie shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of a judge, it being noted that each party shall be handed one full copy of these orders with the relevant details included, for provision to the treating medical practitioners and to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.
That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.
That otherwise all existing applications shall be adjourned for Reasons for Judgment and further orders on a date to be advised to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Re: Jamie (Special Medical Procedure) is approved 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

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

“Jamie” and his non-identical twin brother were born in May 2000. They are now 10 years’ 10 months. They are the only children of Mr and Mrs S, the applicants.
The children are in Grade 5 at school where, since mid-2009, Jamie…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FamCA 248
Decision Date: 6 April 2011

CaseChat Overview and Summary

This matter came before Dessau J concerning an application for authorisation for Mr and Mrs S to consent to medical treatment on behalf of their child, Jamie. The dispute centred on the administration of Zoladex and cyproterone acetate, medications intended to suppress gonadotrophins and testosterone to pre-pubertal levels. The court was required to determine whether to grant this authorisation, considering Jamie's capacity to consent to the proposed medical procedures.

The legal issues before the court involved assessing Jamie's capacity to make an informed decision regarding the medical treatment, applying the principles established in *Gillick v West Norfolk A.H.A* [1986] A.C.112. This required the court to consider whether Jamie possessed sufficient understanding and intelligence to comprehend the nature and consequences of the proposed treatment, which included the suppression of puberty and subsequent hormone therapy. The court also had to consider the medical necessity and efficacy of the proposed treatment, as outlined by Jamie's endocrinologist, Dr G, who deemed alternative treatments inferior and highlighted the lifelong implications of failing to prevent masculine physical development.

Dessau J reasoned that while Jamie is young and younger than most children undergoing such treatment, the psychiatrist, Dr C, was satisfied that Jamie demonstrated an age-appropriate understanding of the treatment's broad nature and consequences. This included an awareness of the hormonal effects on puberty, potential future treatments, and the possibility of developing breasts and undergoing surgery. Although Dr C noted Jamie might not fully comprehend all adult implications, her capacity to consider future life choices, such as marriage and adoption, indicated a level of understanding sufficient to engage with the proposed medical interventions. The court accepted that Jamie was capable of making an informed decision, or at least that the parents should be authorised to consent on her behalf under medical guidance.

Consequently, the court ordered that Mr and Mrs S be authorised to consent to the administration of Zoladex and cyproterone acetate on Jamie's behalf, in consultation with treating medical practitioners. The judgment also imposed strict non-publication orders to protect Jamie's identity and that of her family and medical professionals, with access to the court file restricted without judicial leave.

Orders

Orders of the court

That Mr and Mrs S shall be authorised to consent to treatment on behalf of their child Jamie under the guidance of Jamie’s treating medical practitioners including but not limited to his endocrinologist Dr G and his psychiatrist Dr C, for the administration of Zoladex (a GnRH agonist) and cyproterone acetate in such dose, in such manner and with such frequency as determined in consultation with the treating medical practitioners to achieve suppression of gonadotrophins and testosterone to pre-pubertal levels.

That the full name of Jamie, Jamie’s family members and their occupations, the hospital, the Independent Children’s Lawyer, Jamie’s medical practitioners, Jamie’s school, this Court’s file number, the name of the Family Report writer, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify Jamie shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of a judge, it being noted that each party shall be handed one full copy of these orders with the relevant details included, for provision to the treating medical practitioners and to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.

That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.

That otherwise all existing applications shall be adjourned for Reasons for Judgment and further orders on a date to be advised to the parties.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The endocrinologist Dr G specifically considered alternative drugs that could be used to suppress gonadotrophin secretion. He said that the drugs administered before the introduction of long-acting GnRH analogues are now regarded as inferior. They have side-effects of weight gain and adrenal suppression. Otherwise, any intervention that fails to control testosterone levels would also fail to prevent deepening of the voice, and that would be a life-long problem if Jamie continues to wish to be identified as female. (g)If the child is capable of making an informed decision about the procedure – whether the child agrees to the procedure(h)If the child is incapable of making an informed decision about the procedure – that the child:(i) is currently incapable of making an informed decision; and(ii) is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future In considering whether a child is capable of making an informed decision, the authorities have adopted the principle in Gillick v West Norfolk A.H.A [1986] A.C.112, where the House of Lords held that a minor is capable of giving informed consent when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. Jamie is still young, and younger than the majority of children who undertake this proposed treatment. Nevertheless, in the psychiatrist Dr C’s opinion, Jamie is able to demonstrate an understanding “of the broad nature of the treatment proposed”, namely that she will receive treatment with hormones which will affect and delay the development of the bodily changes of puberty. Dr C said Jamie understands that this will delay the growth in her penis and testicles, and that there will be a slowed body hair development and masculine-type bone growth. Jamie is aware that subsequent treatment with female hormones, when she is older, may then affect her capacity for sperm generation. Dr C is satisfied that Jamie has been able to understand at an age-appropriate level the consequences of continued suppression of puberty, the later treatment with oestrogen, the possibility later of developing breasts, and of the surgery to create a vagina. Jamie has spoken about the possibility of marrying a man and adopting a child when she is an adult. Dr C said he does not believe Jamie understands how difficult that may be in our society, but it appears to be an appropriate and realistic option for this child. Dr C concluded that although it is difficult for a child of Jamie’s age to “completely understand” the implications for his life as a young adult, Jamie has “demonstrated capacity to think about issues such as the possibility of adopting or fostering children of her own.” She wants to commence the female sex hormone treatment at around 16 in order to develop a more complete female appearance including the development of breasts.

Ratio Decidendi

Legal Principle Established

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