Re: Kate

[2015] FamCA 705

FAMILY COURT OF AUSTRALIA

RE: KATE [2015] FamCA 705

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where applicants are the parents of a child with gender dysphoria – where the applicants seek a declaration that the child is competent to authorise her own stage two treatment – where the child’s treating medical experts and parents support the child commencing stage two treatment – assessment of whether 17 year old child is Gillick competent to consent to medical treatment – finding that the child is competent to consent and authorised to make her own decision about stage two treatment.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie [2013] FamCAFC 110; (2013) 50 Fam LR 369
Re K (1994) FLC 92-461
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

1st APPLICANT: The Mother

2nd APPLICANT: The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 27 August 2015

JUDGMENT OF: Johns J

HEARING DATE: 20 August 2015

REPRESENTATION

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

Orders

1. That pursuant to Rule 1.12 of the Family Law Rules 2004 (Cth) (“the Rules”) the requirement pursuant to Rule 4.10 of the Rules that the Initiating Application filed 14 August 2015 be served on the prescribed child welfare authority be dispensed with.

2. That the name of the child Kate born … 1998, Kate’s family members and their occupations, the Hospital, Kate’s medical practitioners, Kate’s school, this Court, file number, the State of Australia in which the proceedings were initiated, the names of the parents’ lawyers, and any other fact or matter that may identify Kate shall not be published in any way and only anonymised Reasons for Judgment and orders (with coversheets excluding the Registry, file number and lawyers’ names and details as well as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 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 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. Upon the Court being satisfied that the child Kate born … 1998 is competent to consent to the medical treatment described in the Initiating Application filed 14 August 2015, the Court authorises Kate to make her own decision in relation to that treatment. 

5. That the applicant mother and father be at liberty to provide a copy of the un-anonymised orders and the un-anonymised Reasons for Judgment to all persons involved with Kate’s treatment.

6. That the applicants’ Initiating Application filed 14 August 2015 be otherwise dismissed.

   AND THE COURT NOTES THAT

   The treatment described in the applicants’ Initiating Application filed 14 August 2015 is the following treatment for Gender Dysphoria:-

7. That under the guidance of Kate’s treating medical practitioners including but not limited to Dr K (Psychiatrist) and Dr O (Paediatric Endocrinologist), Kate undergo treatment by way of the administration of oestrogen, in such frequency as determined by and under the guidance of Kate’s treating medical practitioners.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Kate 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 dismissed

The Mother and the Father

Applicants

REASONS FOR JUDGMENT

introduction

1. The applicants are the parents of Kate who is aged 17 years.  Although biologically male, since she was in her early secondary school years, Kate has wished to live as a girl.

2. In 2013 Kate was diagnosed with gender dysphoria and commenced taking Stage 1 puberty blockers.

3. Since 2014 Kate has dressed as a female at home and socially.  In 2015, from the commencement of Year 11, Kate has dressed as a female at school.  Kate now wishes to commence treatment to begin the process of feminisation through the administration of oestrogen (Stage 2 treatment).

4. I am asked to determine two questions:-

   ·Whether or not Kate is legally competent to consent to the Stage 2 treatment she desires and if so to make orders authorising her consent to that treatment; and

   ·If I determine that she is not legally competent to provide such consent, whether then to authorise her parents to consent to the treatment on her behalf.

5. In addition to orders regarding Kate’s capacity to make decisions regarding the proposed Stage 2 treatment, the applicants also sought an order that Kate “have sole parental responsibility for all medical decisions concerning herself”.  The applicants abandoned that part of their application at the hearing.  Accordingly, I will dismiss that part of their application.

BACKGROUND

1. Kate was born interstate in 1998 and moved with her family to this State in 1999.

2. As a young child Kate was observed to be keen to grow her hair long and when in Grade 1, she preferred to wear her hair in pigtails.  During her primary school years, her parents observed Kate to be a child who had “feminine” traits; she enjoyed dressing up, wearing perfume and cosmetics.  Her mother deposes of an occasion when Kate had a “make over” and her delight at having glitter applied to her face.  The mother deposes that Kate’s parents encouraged her to “be herself”.

3. In 2007 Kate and her parents moved to the city where she continued at primary school.  By the time Kate was in Grade 6, her friendships were almost exclusively female.  At that time Kate was teased by some of her peers for being gay or being a girl.

4. Kate commenced high school in 2011 and formed friendships at her school with both male and female students.  That year, Kate disclosed to her parents that she was homosexual. 

5. When in Year 8, Kate began questioning her identity and told her parents that she did not feel right identifying as homosexual, but rather felt that she was actually a woman trapped inside a male body.  At that time Kate expressed distress to her parents and began self-harming, cutting her arms and legs.

6. In February 2013, Kate commenced attending a psychologist.  She was referred to Dr C of the D Clinic who referred her to a psychiatrist, Dr K. 

7. Following that referral to Dr K, Kate was referred to the X Hospital to obtain a second opinion from Professor P, psychiatrist.

8. During the period when Kate was being assessed, she displayed increasing distress at the onset and progression of puberty.  Her mother deposes that on one occasion Kate was observed to strap a belt around her shoulders to try to prevent them from broadening.  Kate self-harmed on occasion.

9. In September 2013 Kate was assessed by Professor P and by an endocrinologist, Dr O at the X Hospital; the diagnosis of gender dysphoria was confirmed.  Following that diagnosis, Kate commenced treatment with Stage 1 puberty blockers.   

10. Upon commencement of hormone treatment, Kate experienced some side-effects, including tiredness and depression.

11. In 2014 Kate began dressing as a female at home and attended her first social event dressed as a female. 

12. In 2015 Kate commenced attending her school dressed as a female.  She has been observed by her parents to have increased happiness and improvement in her mood since that time.  Her mother deposes that the transition at school has been successful and that Kate’s courage in making that transition has been recognised and supported by her school community.

13. Kate’s parents have confirmed their consent to her commencing Stage 2 treatment and have expressed concern as to the negative impact upon Kate if she is unable to commence the cross-hormone therapy.  In particular, her parents have expressed concern as to the impact upon Kate’s mental health if she is not permitted to commence that treatment.

14. Kate’s mother deposes that she is confident that Kate fully understands the nature of the proposed treatment.  She deposes that Kate is intelligent and mature for her age and that since commencing to transition from male to female in 2012 Kate has not wavered in her belief that she is a woman.

MATERIAL RELIED UPON

1. The applicants relied upon the following material:-

   ·Initiating Application filed 14 August 2015;

   ·Affidavit of the mother filed 14 August 2015;

   ·Affidavit of the father filed 14 August 2015;

   ·Affidavit of Dr K filed 14 August 2015;

   ·Affidavit of Dr O filed 14 August 2015.

LEGAL PRINCIPLES

1. Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act. One of the objects is to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

2. In deciding a particular parenting order, the best interests of the child are the paramount consideration (s 60CA). The primary and additional considerations for the Court in determining what is in the child’s best interests are set out in ss 60CC(2) and (3) of the Act.

3. Generally it is within the scope of a parent’s responsibility to consent to medical treatment for and on behalf of their child.  However, there are certain procedures that fall beyond that responsibility and require determination by the Court, as part of the Court’s parens patriae or welfare jurisdiction (Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”)).

4. Section 67ZC of the Act provides that the Court has jurisdiction to make orders relating to the welfare of children. The children’s best interests remain the paramount consideration in making such orders.

5. The procedure to be followed with respect to applications requiring Court authorisation of medical procedures is set out at Division 4.2.3 of the Family Law Rules 2004 (Cth) (“the Rules”).

6. Rule 4.09(1) provides that evidence must be given that satisfies the Court that the proposed medical procedure is in the best interests of the child.

7. The Full Court in Re: Jamie [2013] FamCAFC 110; (2013) 50 Fam LR 369 (“Re Jamie”) confirms that if a proposed treatment falls within the ambit of Marion’s case, and if the child is not Gillick competent, the proposed treatment must be first authorised by the Court. 

8. In the decision of Re Jamie, the Full Court considered what is known as Stage 2 treatment of gender dysphoria.  The issues considered therein included whether the Stage 2 treatment is a medical procedure for which consent lies outside the bounds of parental responsibility and thus requires the imprimatur of the Court. 

9. In determining that issue, the Full Court considered the question of the child’s capacity to consent to Stage 2 treatment; that is, the question of whether a Gillick competent child could consent to the procedure.

10. The term “Gillick competence” comes from the decision of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, where it was said by Lord Scarman at 188-189:-

    …I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.  It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.  Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances.

11. In Marion’s case, the High Court confirmed that the view of the House of Lords in Gillick represents the common law in Australia.

12. The Full Court in Re Jamie determined that a Gillick competent child could consent to such Stage 2 treatment.  In considering that question Bryant CJ stated:-

    134.     In my view, it would be contrary to the Convention on the Rights of the Child, and to the autonomous decision-making to which a Gillick competent child is entitled, to hold that there is a particular class of treatment, namely stage two treatment for childhood gender identity disorder, that disentitles autonomous decision-making by the child, whereas no other medical procedure does.  The High Court in Marion’s case, adopting the formulation in Gillick, held at 237 that a child 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”.

    135.     I see no basis for reading this down because the treatment is for childhood gender identity disorder.  Indeed, one might think that, of all the medical treatments that might arise, treatment for something as personal and essential as the perception of one’s gender and sexuality would be the very exemplar of when the rights of the Gillick-competent child should be given full effect.

    (Original emphasis).

13. The next issue considered by the Full Court in Re Jamie was who should determine the question of Gillick competence.  It was held by the Full Court that, due to the nature of the Stage 2 treatment, it is a matter for the Court to determine whether a child is Gillick competent.  Following the reasoning of the High Court in Marion’s case, the Full Court held that this is so for two reasons: firstly due to the risk of making the wrong decision as to the child’s capacity to give consent and secondly, because the consequences of a wrong decision are particularly grave.

14. With respect to Stage 2 treatment, the Full Court held that once the question of Gillick competence was established, the Court would have no further role. 

15. As to how such proceedings are to be conducted, at paragraph 139 of the judgment, Bryant CJ held that in an application with respect to Gillick competence, the material in support would not need to be as extensive as an application for the Court to authorise treatment.  She stated there that:-

    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 to be presented. 

16. Rule 4.10 of the Rules requires that applications for medical procedures in relation to a child must be served on the prescribed child welfare authority. The prescribed child welfare authority in this instance is the relevant state government department (“the Department”). The applicants sought that compliance with Rule 4.10 be dispensed with in the circumstances of this case.

17. There is no controversy in this matter.  The mother, the father and Kate are united in their position as to the question of Kate’s competence to provide consent to the Stage 2 treatment.  Further, it is the assessment of Kate’s treating medical practitioners that Kate is Gillick competent.

18. The main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case. In the absence of any controversy about Kate’s wishes or the view of her parents and treating doctors, I am satisfied pursuant to Rule 1.12 of the Rules that it is appropriate to dispense with compliance with Rule 4.10; there is no benefit to the applicants or Kate in delaying the finalisation of the application by requiring service of the application on the Department. Further, the evidence of the applicants and Kate’s treating medical practitioners is that there is some urgency to the application, as delay may compromise Kate’s mental health.

19. I am also satisfied that the appointment of an Independent Children’s Lawyer is unnecessary.  The guidelines provided by the Full Court as to the circumstances in which such an appointment should be made are set out in the decision of Re K (1994) FLC 92-461. One of the categories so identified in that judgment was applications in the Court’s child welfare jurisdiction regarding the medical treatment of children where the child’s interests are not adequately represented by one of the parties. However, in the circumstances of this case, I am satisfied that Kate’s interests are well represented by her parents. Both of Kate’s parents have participated in these proceedings and have sworn affidavits confirming their consent to and support for Kate’s proposed treatment. Both have also confirmed their assessment that Kate understands the proposed treatment and is therefore Gillick competent.

20. The hearing was conducted on the papers.  None of the witnesses were required for cross-examination.

21. The applicable standard of proof is the balance of probabilities in accordance with s 140 of the Evidence Act 1995 (Cth).

IS KATE GILLICK COMPETENT?

1. The evidence of Kate’s treating doctors overwhelmingly supports a finding that Kate is Gillick competent. 

2. Kate’s treating psychiatrist, Dr K has sworn an affidavit filed 14 August 2015.  Annexed to that affidavit is a detailed report of Dr K setting out her history of treatment of Kate, her diagnosis and her assessment as to the question of Kate’s competence. 

3. Dr K has been a senior consultant psychiatrist at the X Hospital since 2007.  Her curriculum vitae discloses that she has undertaken extensive research and presented numerous papers in the area of gender dysphoria in children and adolescents.  For the last seven years, she has worked with children and adolescents with a range of gender-related problems and in children with disorders of sex development who have psychological problems.

4. In her report dated 16 June 2015 Dr K states that Kate was referred to her in April 2013 and that she has assessed Kate and her parents individually and jointly on a number of occasions since that date. 

5. Dr K’s assessment of Kate describes her as:-

   …a lovely young lady of slight build.  She reported that she was doing well in general, with periods when she feels distressed.  She was eloquent in describing her issues and was clear in understanding her predicament and realistic in her expectations of treatment.  She is thoughtful and considerate of others’ feeling[s] and would like to be a psychologist or an interior designer as an adult.  She is confident that life would be much better as a girl as she would be living true to her inner self. [Kate] also has a moderate level of anxiety that comes and goes mostly related to her gender issues.  She is intelligent and understands the implications of feminizing treatment both positive and negative.  

6. Dr K confirmed at page 3 of her report that Kate meets the criteria for diagnosis of gender dysphoria (DSM V 302). 

7. It is proposed that Kate be treated with oestrogen which will result in breast growth and female fat distribution.  The physical effects of that treatment will be partially reversible.  In Kate’s case, there will be suppression of the spermatogenesis and fertility while under treatment with oestrogen, but this would be reversible in the event that oestrogen treatment ceases.  If there is significant breast development it is likely that surgical treatment would be required to remove excess breast tissue.

8. Dr K states that the effect of such treatment upon Kate will be to enable her to continue to affirm as a female and fully live in the female role which she has already been doing for the past year-and-a-half.  Dr K confirmed that the proposed cross-hormone treatment will minimise the distress and risk to Kate of developing anxiety and depressive symptoms.  Commencing the treatment is likely to minimise the risk of major mental health problems for Kate. 

1. Further, Dr K considered that if the treatment is not undertaken Kate is likely to experience significant anxiety and depression and is likely to be at greater risk of self-harm. 

2. As to the question of whether or not Kate is able to make an informed decision regarding the proposed treatment, Dr K assessed Kate in the following terms:-

   [Kate] is a bright young person who appears to be of above average intelligence.  [Kate] is able to demonstrate understanding of all aspects of the treatment recommended, that she will receive hormone treatment which will affect the development of the bodily changes of puberty including side effects and limitations.  She has a very good understanding of these issues and is actively seeking the treatment and agrees to it.  [Kate] has consistently expressed in her sessions with me a desire to commence treatment as early as she can.  She has a realistic understanding of the possible outcomes of the treatment.  She has been informed of the different pathways following treatment including the possibility of changing her mind in future.  It is my considered opinion that [Kate] is capable of providing an informed consent to the procedure.

3. Kate’s treating endocrinologist, Dr O has also sworn an affidavit in these proceedings.  Annexed to that affidavit filed 14 August 2015 is a report of Dr O dated 13 July 2015. 

4. Dr O is a paediatric endocrinologist at the X Hospital.  Dr O describes the proposed treatment in the following terms:-

   I propose to treat [Kate] with a gradually increasing dose of oestrogen, the female sex hormone, to feminise her body.  This treatment can be given either using an oral tablet or a transdermal patch and is appropriate for the longer term management of [Kate’s] gender dysphoria. 

   Once an adult dose of oestrogen had (sic) been reached, this oestrogen therapy will be sufficient on its own to suppress pituitary gonadotrophin secretion, and use of GnRH analogue to block puberty will then be withdrawn.

5. As to the likely long-term physical, social and psychological effects of such treatment on Kate, Dr O states that the likely effects of oestrogen include:-

   ·Breast development;

   ·Decreased body hair;

   ·Increased fat on buttocks, hips and thighs;

   ·Loss of muscle mass and strength;

   ·Decreased fertility with decreased sperm production and function;

   ·Social benefits of aesthetic consistency with gender identity;

   ·Psychological benefits of aesthetic consistency with gender identity. While generally speaking, oestrogen therapy can cause a lowering of mood, overall in transfemales it is more likely that the physical benefits of feminisation will lead to improved mood and psychological benefits.

6. As to the risks of proposed treatment Dr O reports that oestrogen therapy can increase the risk of disorders, including:-

   ·Heart disease;

   ·Pulmonary embolism (blood clot to the lungs);

   ·Stroke;

   ·Type 2 diabetes;

   ·Liver disease;

   ·Chronic problems with veins in the legs;

   ·High cholesterol and high blood pressure;

   ·Gall stones;

   ·Headaches and migraines;

   ·Prolactinoma (non-cancerous tumour of the pituitary gland);

   ·In addition in biological males, oestrogen is likely to have testicular effects to decrease sperm production and function.  Its exact effects on fertility cannot be predicted but it is likely to diminish male fertility over time. 

7. Dr O confirmed in her report that Kate and her parents have been provided with and read written information statements as to the potential side-effects of the proposed oestrogen therapy.  Further, Dr O confirmed that she had met with Kate and discussed the proposed treatment. 

8. Dr O reports that whilst Kate is aware that she may change her mind in the future, at this time she has elected not to proceed with sperm salvage and storage.

9. In relation to the question of Kate’s Gillick competence, Dr O reports as follows:-

   [Kate] reports that she has always felt like a girl and remembers ‘dressing up’ in stereotypical girls’ clothing and adopting female roles during imaginative play as a younger child.  She wore her hair long until early high school when she cut it primarily to conform, but this also caused her distress.  Since her social transition in the last year, [Kate] now dresses in female clothing and reports feeling really good about this change. 

   While [Kate] has the support of her parents in relation to commencing treatment with oestrogen, in my opinion, [Kate] is Gillick competent to make this decision also.  This has been demonstrated during our consultations where [Kate] has engaged in sophisticated discussion around the issues of her gender identification, fertility preservation and the long term consequences of treatment both in terms of physical and psychological health and wellbeing.  [Kate] presents as an intelligent young lady who has given a lot of thought to her treatment for her gender dysphoria.  She is aware that one of the options for transitioning is to do so socially without having hormonal treatment; however she does not want to do this, as the incongruence between her gender identity and her physical appearance causes significant distress.  She has been having GnRH analogue therapy over the past ~18 months and reports a lot of psychological benefit from the suppression of testosterone; however she is aware that this alone is not a long-term treatment option and that her body requires the benefits of adult hormone levels.  Given her female gender identity, [Kate] wishes to proceed with oestrogen therapy. 

   Although [Kate] understands the concept of treatment regret, she identifies so strongly and persistently with the female gender that this is not of significant concern to her. 

10. The reports of both of Kate’s treating medical practitioners set out a detailed history of her treatment, the discussions she has had with her treating medical practitioners, and the potential impact of the proposed treatment upon her.  Both Dr K and Dr O are unequivocal in their assessment that Kate is an intelligent and mature young woman who understands the short- and long-term effects of the proposed treatment upon her.  Both treating medical practitioners confirm that Kate has a thorough and detailed understanding of the consequences of Stage 2 treatment, both negative and positive, and that she is capable of giving informed consent to such treatment.  I accept that evidence.

11. I am satisfied having regard to the unchallenged evidence of Kate’s treating medical practitioners that Kate is Gillick competent.   The views of Kate’s treating medical practitioners are shared by her mother and father.

12. Having regard to that evidence, I am satisfied on the balance of probabilities that Kate is competent to fully understand the nature and consequences of the proposed treatment and to make her own decision in relation to that treatment.  Accordingly, I make orders as follows:-

    (1)That pursuant to Rule 1.12 of the Family Law Rules 2004 (Cth) (“the Rules”) the requirement pursuant to Rule 4.10 of the Rules that the Initiating Application filed 14 August 2015 be served on the prescribed child welfare authority be dispensed with.

    (2)That the name of the child Kate born … 1998, Kate’s family members and their occupations, the Hospital, Kate’s medical practitioners, Kate’s school, this Court, file number, the State of Australia in which the proceedings were initiated, the names of the parents’ lawyers, and any other fact or matter that may identify Kate 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 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 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)Upon the Court being satisfied that the child Kate born … 1998 is competent to consent to the medical treatment described in the Initiating Application filed 14 August 2015, the Court authorises Kate to make her own decision in relation to that treatment. 

    (5)That the applicant mother and father be at liberty to provide a copy of the un-anonymised orders and the un-anonymised Reasons for Judgment to all persons involved with Kate’s treatment.

    (6)That the applicants’ Initiating Application filed 14 August 2015 be otherwise dismissed.

    AND THE COURT NOTES THAT

    The treatment described in the applicants’ Initiating Application filed 14 August 2015 is the following treatment for Gender Dysphoria:-

13. That under the guidance of Kate’s treating medical practitioners including but not limited to Dr K (Psychiatrist) and Dr O (Paediatric Endocrinologist), Kate undergo treatment by way of the administration of oestrogen, in such frequency as determined by and under the guidance of Kate’s treating medical practitioners.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 27 August 2015.

Associate: 

Date: