Re: Jan

[2016] FamCA 1171

FAMILY COURT OF AUSTRALIA

RE: JAN [2016] FamCA 1171

FAMILY LAW – CHILDREN – Gender Dysphoria – Gillick Competency - Where psychiatric evidence not filed – Where medical practitioners have made assertions without providing adequate evidence for the court to draw the same conclusion – Where Gillick competency not established – Where the lack of psychiatric evidence prevents a finding that gender dysphoria treatment is in the child’s best interests – Where Application dismissed.

Family Law Act 1975 (Cth)

Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112
‘Marion's Case’ (1992) 106 ALR 385.
Re Jamie (2013) FLC ¶93-547

APPLICANTS: The Mother and the Father

INDEPENDENT CHILDREN’S LAWYER               

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 21 December 2016

JUDGMENT OF: Gill J

HEARING DATE: 21 December 2016

REPRESENTATION

By Court Order the solicitor’s name has been suppressed

Orders

1. The application of the Mother and the Father dated 7 December 2016 is dismissed.

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: Jan 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

FILE NUMBER: By Court Order File Number is suppressed

The Mother and the Father

Applicants

REASONS FOR JUDGMENT

1. This is an application in respect of Jan.  Jan is aged 17 years and 11 months.  The application is firstly to determine his competence to consent to Stage 2 of his hormonal treatment by the administration of testosterone that is directed to making physical changes in him.  This is on the basis that, although Jan was born female, he identifies as male.

2. The application is supported by evidence from the mother and the father, who are separated but both support the treatment.  It is further supported by the evidence of Dr L, who is an endocrinologist, and it is supported by the evidence of Ms S, who is a legal support officer.  Her evidence explains the absence of a report that has been sought from a Dr K.  It will be a psychiatric report.  He is the person who has purportedly diagnosed gender dysphoria, which is the basis for the treatment sought by Jan.  There is accordingly no evidence from the psychiatrist either as to the diagnosis, or as to the competence to consent, or as to the recommended treatment.

3. The approach to be taken in cases such as this is set out in the case of Re Jamie 50 Fam LR 369.[1]  At page 398 Bryant CJ sets out the general manner of approach which I will read:

   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 attracted jurisdiction of the Family Court of Australia under section 67ZC of the Act and required 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 section 67ZC;

   (c)      in relation to stage two treatment as 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. 

   The question of whether a child is Gillick competent, even where the treating doctors and parents agree, is a matter to be determined by the court and 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.

   [1] Re Jamie (2013) FLC ¶93-547.

4. The critical issues then in this case are firstly determining Jan’s competence to be able to consent to the treatment himself, whether or not there is agreement to the treatment taking place, and if the answer to either of the previous two matters is “no”, whether authorisation should be given in any event on the basis that the treatment is in Jan’s best interest.

5. The first issue to deal with then is Jan’s competence to consent.  It was impressed upon me that Jan is aged 17 years and 11 months.  In one month he can make the decision for himself without any intervention from the court, as in one month he will be an adult.  The question of competence is set out in the case known as “Marion’s case”.[2]  Although the fact that Jan is aged 17 years and 11 months is a potentially persuasive matter, it is a matter that has to be considered in the light of other factors and it is certainly not determinative of itself.

   [2] ‘Marion's Case’ (1992) 106 ALR 385.

6. The High Court, in Marion’s case, rejected the notion of a fixed-age approach to determining competence.  It rather determined that competence had to be considered in each case based upon the individual characteristics of the child.  The test as summarised then is at page 237 of Marion’s case.  And it says:

   “A minor is, according to this principle…”

   “this principle” being an extract adopted from the English case of Gillick,

   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.[3]

   [3] Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112.

7. Aside from pointing to Jan’s age, a number of other sources were relied upon in an attempt to establish competence.  One of those was Dr L.  Dr L is a paediatric endocrinologist.  The extent to which he has the expertise to assess competence is not apparent.  He has experience dealing with children with gender dysphoria, although, on the material before me, it is unclear the degree of this experience.  He has, however, dealt with Jan since January 2016.  However his means of dealing with Jan on the four visits that have taken place are that he has been involved directly in two of the visits.  The other two visits were undertaken either by a registrar or a locum.  That is, he has directly consulted with Jan on two of four occasions, at least at the time of the preparation of his report.

8. It is unclear what ground was covered between he and Jan, what was discussed or to what degree Dr L was in fact reliant upon the assessment of others in coming to his own conclusions about Jan’s competence.  His view was that he believes that Jan is Gillick competent to make a decision to commence Stage 2 treatment.  That view is of little or no assistance by itself.  It is necessary to examine why it is that he says that it is the case that Jan is Gillick competent.  That is because the determination of competence is a determination that the court must make, and the court is not in a position to delegate that finding to medical practitioners.

9. He assessed that Jan appears to be Gillick competent, in part because he said there were appropriate discussions between he and Jan regarding gender identity, fertility preservation and long-term physical and psychological consequences.  It was not, however, revealed by him what the content of the conversation was such as to render it appropriate.  He asserts that Jan understands the benefits and the possible side effects.  He nominated one of those side effects in particular, which was the possibility of regret because of the irreversible nature of the treatment.  He has not otherwise provided an indication of what benefits, side effects, risks and limitations were understood, nor the basis upon which they were assessed as understood.  For example, whether it was simply an assent by Jan to the question of whether or not he understood.

10. Dr L says that he has discussed benefits and risks, and in his professional opinion both Jan and Jan’s mother understand.  This is an unfortunately impenetrable expression of his view.  It does not expose the underlying facts that would enable me to come to a similar conclusion.  Dr L may well be right, that is, that Jan is competent.  I have no doubt that the view that he holds is genuine.  The material that I have been provided with from Dr L does not equip me with the information to follow and reach that conclusion for myself.

11. What also seems to be clear is that Dr L has in some respects relied upon views taken by Dr K without specifying the scope of those views or how they were expressed.  If Dr K had provided evidence, then it is doubtful that the criticisms that I have made of Dr L would be a matter of any significance.  He is after all, principally the endocrinologist while Dr K is the psychiatrist.

12. However, those are not the only sources of evidence going to the question of competence.  The mother has given evidence, principally at paragraphs 36 through to 46 of her affidavit.  She was described by her solicitor as being the person closest to Jan and that seems to be reasonably, readily apparent.  She has offered a hearsay description of the opinion offered by Dr K but without direct evidence coming before me of the diagnosis nor of the ramifications nor of the explanation of the diagnosis.  She did, however, describe at paragraph 40 what Jan has had to say about infertility, that is, on the question of whether or not he would take steps to preserve fertility.  He said “I don’t want children and can’t imagine changing my mind”.  This does indicate that, at least to some extent, Jan has a comprehension of the consequence of the treatment that is proposed, that is, he understands the consequence of infertility.

13. In paragraph 43, the mother spoke of the lasting challenges that Jan had expressed that “this is what I want”.  It was unclear to me what challenges Jan has identified.  He has expressed to his mother that he wants treatment because he will feel better about himself.  It is unclear to me to what challenges he refers, the degree of his comprehension, the reality of the likelihood of those expectations and it is of limited assistance in assessing his ability to understand.

14. The mother, at paragraph 37, gave evidence of Jan’s excitement at the change in his birth certificate.  It was a matter that he dealt with publicly.  That is an indication that Jan embraces the overall objective of the treatment, that is, a treatment that will result in him becoming more male.  However, it is unclear how superficial a representation of the effects of the treatment that constitutes.

15. The mother, at paragraph 44, expressed an opinion that Jan understands because of the many conversations regarding transitioning, that he understands transitioning and the enormity of the social, emotion and physical consequences of commencing the treatment.  Unfortunately, that material is in a summary form which leaves me with an assertion that Jan understands without me being able to come to grips with that for myself.

16. Evidence was also given by Jan’s father.  Jan’s father, at paragraph 9, indicates he has impressed upon Jan the need to understand the consequences but again, I am not left with the material to allow me to assess that Jan has the capacity to do that and has done that.

17. Because of the terms of Marion’s case I am required, despite the fact that Jan is almost 18 years old, to determine competence.  Marion makes it clear that there is no fixed-age cut off but it is a question of fact based on each child’s individual characteristics.  The key test in Marion is that it be shown that Jan has sufficient understanding and intelligence to enable him to understand fully what is proposed. 

18. That is a matter on the current state of the evidence that I am unable to determine.  At the outset, I indicated that I was concerned that there was no psychiatric report.  I understand that the parents and the legal representatives strove to bring that report before the court.  The evidence of Ms S sets out why the efforts that were made to obtain the treating psychiatrist have been unsuccessful.  The need for that appears to have been recognised by those representing the applicants.

19. Despite what was a carefully argued and reasoned assessment of the evidence by the solicitor for the applicants, the evidence as to competence is lacking in the manner that I have identified.  I am not satisfied, particularly absent a psychiatrist, by the assertions as to the understanding and I do not find that Jan is Gillick competent.  That is not to say that Jan is not Gillick competent.  I am required to find that he is to enable him to consent to this treatment and I do not find that that is the case on the current material.

20. That leaves open the question then of whether or not I determine that it is in Jan’s best interest to authorise the treatment.  I am in the odd position of being called upon to make that determination when in one month the decision of that today becomes reasonably meaningless because, at that stage, Jan is able to consent as an adult.  Nevertheless, the jurisdiction of this court has been regularly invoked and properly invoked and it is my obligation to exercise that jurisdiction and make the determination as to whether or not it is in his best interests.  That determination can be done shortly.

21. The treatment is proposed because of gender dysphoria.  I have at best, a hearsay recital in the broadest of terms of a person who had the primary responsibility of bringing the diagnosis and the only person with the apparent qualifications to diagnose, and that is Dr K.  I have no affidavit from Dr K and no report from Dr K.  In circumstances where the endocrinologist attributes this primary role of diagnosis to the psychiatrist and I do not have that before me, I am not prepared to make the key finding that is foundational to the treatment.

22. In the absence of the evidence of the psychiatrist, I am unable to make the key finding that is necessary, and that is that Jan suffers from gender dysphoria, and so the evidence, as presented before me on the application, was insufficient to establish the case.

23. I note that an application was made towards the end of the judgment to re-open.  Circumstances of the listing of this matter would require the further adjournment of the matter for consideration and I am not prepared to do that.

24. The application is dismissed other than so far as the non-publication orders will remain in effect.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 21 December 2016.

Associate: 

Date:  27 March 2017