Re: Katey

[2018] FamCA 916

FAMILY COURT OF AUSTRALIA

RE: KATEY [2018] FamCA 916

FAMILY LAW – CHILDREN – MEDICAL PROCEDURE – where the Applicant mother seeks authorisation for a special medical procedure – where the First Respondent father does not oppose the Application and the Second Respondent neither opposes nor supports the Application – where the proposed medical procedure is an operative laparoscopic hysterectomy with ovarian preservation – where the Application is supported by evidence obtained by medical practitioners – where the special medical procedure is authorised by the Court.

Family Law Act 1975 (Cth)

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112

APPLICANT: The Mother

1st RESPONDENT: The Father

2nd RESPONDENT: Central Authority

DATE DELIVERED: 7 November 2018

JUDGMENT OF: Hogan J

HEARING DATE: 4 October 2018; in the event that further written submissions are not provided by 26 October 2018, the matter to be determined in Chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms K

SOLICITOR FOR THE APPLICANT: Legal Aid

SOLICITOR FOR THE 1ST RESPONDENT: Mr P

SOLICITOR FOR THE 2ND RESPONDENT: Ms F

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. The performance of an operative laparoscopic hysterectomy with ovarian preservation on the child X, born … 2001, is hereby authorised by the Court.

2. To the extent that it is necessary, the mother is hereby authorised to consent to the procedure referred to in Clause 1 of this Order.

3. Save as otherwise provided in this Order:

   (a)the full name of the child, her family members, her hospital, her medical practitioners, the file number, 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were initiated, the name of the parents’ lawyers and any other fact or matter that may identify the child shall not be published in any way; and

   (b)only anonymized Reasons for Judgment and orders (with cover sheets excluding the Registry, file number, lawyer names and details as well as the parties’ real names) shall be released by the court to non-parties, without further order of a judge.

4. To the extent that the exception provided for in s 121(9) of the Family Law Act 1975 (Cth) does not otherwise authorise it, the mother and father have leave to publish a copy of the unanonymized version of this Order to the child’s treating health practitioners and, for this purpose, each of the parties to the proceedings is at liberty to obtain a unanonymized copy of this Order and the Reasons for Judgment published in unanonymized form.

5. No person other than a party to the proceedings shall be permitted to search the court file in this proceeding, without first obtaining leave of a Judge.

6. The Initiating Application filed 25 September 2018 is otherwise dismissed and the matter shall be removed from the list of cases awaiting hearing.

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: Katey 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: Suppressed by Court Order

The Mother

Applicant

And

The Father

First Respondent

And

Central Authority

Second Respondent

REASONS FOR JUDGMENT

1. X was born in 2001. She has not long turned 17 years of age and is currently in Grade 12 at the B Town Special School. She was born with a genetic disorder. Her general intellectual capacity is severely impaired; she has been assessed as having the intellectual capacity of a seven and a half year old child of standard intellectual capacity. She was first able to use words when she was about four years old and was unable to produce full sentences until she was seven years of age. I accept that her toilet training was delayed until she was 10 years of age.

2. The child’s parents commenced cohabitation in about 2000 and separated in 2003. She has always been primarily cared for by her mother.

3. By Application filed 25 September 2018, the child‘s mother seeks that the Court authorise the performance of a hysterectomy (more particularly, an operative laparoscopic hysterectomy with ovarian preservation) on the child. She does so because she asserts that this procedure is one which is in her daughter’s best interests. Her Application is supported by evidence obtained from Dr C, a Clinical Psychologist, and Dr D, the Clinical Director of Obstetrics and Gynaecology Services at the E Hospital.  

4. The father does not oppose the Application.[1] 

   [1] Response and affidavit filed on 3 October 2018.

5. The Second Respondent neither opposed nor supported the Application. It did support the making of orders to preserve the child’s anonymity, on the basis that such orders are in her best interests. I am persuaded that orders intended to preserve the child’s anonymity are in her best interests.

6. Ms F, who appeared for the Second Respondent, raised a concern that, following the division of the former Department G into the Department H and the Department of J, the more appropriate party to the Application may be the latter Department rather than the former.

7. Whilst Ms K, who appeared for the Applicant, submitted that the Second Respondent was the appropriate party, I acted out of an abundance of caution and, on 4 October 2018, ordered that the Applicant serve the Department J with the Application and all accompanying material by 4.00pm on 5 October 2018. I am satisfied that the Applicant complied with this order.[2]

   [2] Affidavit of Service filed 5 October 2018.

8. I also ordered that, in the event that the Department J wished to be heard in relation to the Application, it file and serve any written submissions by 4.00pm on 19 October 2018; I also afforded the Applicant the opportunity to file further submissions in reply, if the Department took up the opportunity to be heard and, in order to minimise further public cost (because the parties were all government-funded), decided that I would thereafter determine the matter in Chambers.

9. No submissions have been received from the Department J, which Department I consider has now been afforded appropriate procedural fairness.

The mother’s evidence in support of the Application

1. I accept that the mother first introduced the topic of menstruation to her daughter in about 2011, when she was about 10 years of age. I accept that she did this because she wanted to ensure the child was prepared for that event, particularly given that she knew her daughter would need to have menstruation explained to her many times before she started to understand what was going to happen. I also accept that it is highly likely the child told her mother at that time that it was “gross” and “disgusting”.

2. I accept that the child started to menstruate in December 2016.  I accept her mother’s evidence to the effect that she was initially pleased to be “a lady”; I also accept that, whilst she had to be reminded to change her sanitary pads and put them into the bin, she handled her first period, which lasted for two or three days, quite well.

3. I accept the mother’s recounting that the child’s next period occurred about a month later and lasted for about four or five days; I accept that the child was frustrated at its duration; I also accept that she refused to shower and hid used sanitary pads amongst towels, under her bed and in a cupboard in her bedroom. I also accept the mother’s evidence that her daughter was angry at her at times and told her that she didn’t want to wear the sanitary product – particularly at night.

4. I accept that the child’s next period started in the middle of February 2017. I accept that it was a lot heavier and a lot longer. I also accept that the child was distressed, “freaked out” about having blood on her sheets and could not understand why that happened as she was wearing sanitary pads. I accept she stopped wearing them and often removed her used sanitary pads and threw then around the house and hid them in her room, her mother’s room, the linen cupboard and in wardrobes and drawers. I accept that, on occasions, the child would not wear a sanitary pad at school or the shops and, consequently, would be at those places in blood-stained clothing. I also accept that the mother often saw her daughter with blood on her fingers after she had been “playing with herself”.

5. I accept the mother’s evidence that the child’s periods have been almost continuous since February 2017.  As a consequence of this, the mother sought advice from the child’s general practitioner. I accept that, having first advised the mother to wait and see how things progressed over the following couple of weeks, this doctor gave the child a Depot injection in April 2017 in an attempt to cause her periods to stop. I accept the mother’s evidence that the injection appeared to make things worse for the child, in that she continued to bleed quite heavily and continuously, experienced a lot of abdominal pain and was found to have low iron levels.

6. I accept that the mother then spoke to the child’s general practitioner to investigate whether there were other ways to better manage her periods. I accept that the general practitioner (whom, according to the mother, already knew that the child does not tolerate tablets well and refuses to take them or, if persuaded to take them, leaves them lying around the house) recommended that the child would benefit from a hysterectomy. I accept, therefore, that it appears that oral contraception (with its associated effect of cessation of menstrual periods) is not a realistic option in the child’s circumstances.

7. I accept that, when the mother raised her daughter’s continual bleeding and distress about her periods with a paediatrician at the L Hospital in about June 2017, this specialist advised the mother that the child was “learnable” and would cope with those matters associated with menstruation.  I accept that the mother asked to be referred to the M Hospital in an attempt to have the child provided with treatment to give her a break from having her periods almost continuously.

8. I accept that the mother also sought advice from a Ms N, a psychologist upon whom she and the child had previously attended for assistance in learning skills to manage the child’s challenging behaviours. I accept that Ms N suggested to the mother that the best strategy in trying to help her daughter manage and deal with the fact of her menstruation was to continue to reinforce and repeat the information about the importance of changing her sanitary pads and maintaining hygiene.

9. I accept that, in September 2017, the child was taken to see another paediatrician at the local hospital.  As a result of that consultation, she was referred for ultrasound tests in an attempt to ascertain the underlying cause of her continual bleeding.  It seems that the tests did not reveal the presence of any masses.

10. It was after these processes that the mother and the child were referred to Dr D, who recommended to the mother that the child undergo a hysterectomy. I accept that Dr D told the mother he was willing to do the surgery himself.

11. I accept the mother’s evidence about the impacts upon the child of her menstruation. I accept that these include refusing to shower; throwing her used pads around the house and hiding used pads amongst towels in her room, under her bed, in the wardrobes and drawers and in the bathroom cupboard where the linen is stored and becoming angry at times.

12. I also accept the mother’s evidence that, on occasion, the child has engaged in  self-harm by hitting her head on the door whilst making comments like “wish my periods would just fuck off”, “not like my periods anymore” and “mum, make the periods stop”.

13. I accept that the child has been disturbed by the presence of blood on her sheets; that she has developed a rash around her vagina from the consistent chaffing of the menstrual pads; that she has been out in public, including at school and the shops, with blood-stained clothing as a result of removing her sanitary pads; that she has painted the walls of her home with menstrual blood and that she has struggled to concentrate at school during her menstruation.

14. I also accept the mother’s evidence to the effect that the child is sad and angry whilst menstruating and, as a consequence of her feelings and the impacts of her menstruation, has missed school and has missed out on participating as fully in her social life as she might otherwise have done.

15. I accept the mother’s evidence that, given her daughter’s “mental age” being that of a young primary school aged child, she has constantly to remind her to wash her hands or use soap in the shower; I also accept that she has seen the child with blood on her fingers after she has been playing with her genitals.

16. I accept that the mother’s attempts to introduce the child to the idea of using tampons was completely unsuccessful; I accept her recounting that her daughter was “horrified” when she explained what tampons are. I also accept that the mother is very concerned that, if the child was one day able to use tampons, she would fail to change them as necessary or would insert more than one tampon at a time or insert a new tampon without first removing the used tampon. I accept that the mother is justified in these concerns.

Dr D’s evidence

1. I accept Dr D’s evidence that the probable benefits to the child of the proposed hysterectomy includes cessation of abnormal uterine bleeding (with improvement to hygiene and maintenance of activities of daily living by caregivers); elimination of the need for cervical surveillance; complete contraception and long term cancer reduction.  I accept his evidence that the detriments associated with the proposed hysterectomy, if performed as proposed, are exposure to major operative and anaesthetics risks as he outlines in his affidavit. I accept that the long term physical effects on the child if the proposed procedure is not carried out will be a continuation of her abnormal uterine bleeding (and its associated challenges in hygiene management), a continuation of the necessity for cervical and gynaecological surveillance and potential pregnancy.

2. I accept Dr D’s evidence that, other than a hysterectomy, the only remaining option for the child is that of using a Mirena, either alone with endometrial ablation.  I accept that these options are also attended by risks, which include the risk of therapy failure, ongoing discharge or bleeding and ectopic pregnancy. I accept that neither option would offer the child any protection from sexually transmitted infections and that neither would eliminate the need for her to undergo ongoing cervical surveillance.

3. I accept his evidence that, given the combination of the child’s low IQ, her cognitive impairment and her tendency towards self-harm and self-genital examination, a Mirena is not suitable for her.

4. I accept Dr D’s evidence that, whilst the clinical care standard for heavy menstrual bleeding, as indorsed by the Australian Commission on Safety and Quality and Healthcare, provides that offering non-surgical management options for the child’s issue is appropriate under ‘normal’ situations, the combination of her low IQ, her cognitive impairment and her tendency towards self-harm and self-genital examination influences the appropriateness of these.

5. I accept that alternative non-surgical treatments will not remove the requirement to manage the child’s menstruation in this case; I accept Dr D’s opinion that there is no alternative to the surgical procedure suggested, or less invasive treatment than that, which will remove the challenge of managing the child’s menstruation as this has been outlined by her mother in her evidence.

6. I also accept that the same clinical care standard also provides that hysterectomy becomes an option when, as here, alternative non-surgical treatments are not suitable in the circumstances.

7. I accept Dr D’s evidence that the procedure known as operative laparoscopic hysterectomy with ovarian preservation involves the insertion of three to four ports into the child’s abdomen, with the incisions ranging from between 10 mm – 15 mm. I accept that the procedure is performed under general anaesthetic and usually takes about 90 minutes.

8. I also accept that there are risks associated with the procedure itself and further risks associated with the anticipated three day post-operative recovery in hospital, the fact that the child will be catheterised for about 24 hours and that it may take her between three to four weeks to convalesce. Additionally, the procedure is irreversible and, like any surgery, is attended by risks of infection, blood loss, injury to internal organs and thrombosis. I accept that the long term risks include those particularised by Dr D in his affidavit.  However, I also accept his evidence that there is no alternative, or less invasive treatment that will remove the challenge of managing the child’s menstruation.

9. I accept Dr D’s evidence that, from a medical perspective, the purpose of the proposed surgical intervention is to prevent the child from menstruating so as to assist with her healthcare management.

Dr C’s evidence

1. Dr C saw the child on a number of occasions during a one week period.  I accept his assessment of her as meeting the criteria of an intellectual disability and generalised anxiety disorder. I accept his assessment that her general intellectual capacity is severely impaired and is that of a seven and a half year old child of “normal” or standard intellectual capacity. I accept this impairment is permanent. I accept Dr C’s evidence that the child will continue to be unable to make informed decisions into the future.  I also accept his assessment that the child’s adaptive functions are significantly impaired and that her expressive and receptive language skills are much below her mental age level.  I accept that her visual and auditory memory appears to be at the level of her assessed intellectual capacity: that is, of a child of seven and one half years of age.

2. I accept Dr C’s assessment that the child appeared to experience significantly elevated levels of depression and stress, especially about her prolonged and irregular menstrual periods.  I accept his recounting of her report to him: namely, that when she has her periods she is sad, angry and stressed.  Whilst she was aware that other females experienced menstruation, she told him she believed that having periods was a “bad thing”. She told him “ I get sad when I get periods; I want it stops; I have had period for 18 days.”  As he understood the information, her periods rarely stop.

3. Dr C said that, when asked, the child said she would like to have a boyfriend; when he asked her what one did with a boyfriend, she said that “you go and share Ipod”.

4. I accept that Dr C supports the mother’s Application because he considers that: the child’s extended menstrual periods have caused reparative trauma to her; her mother’s attempts and efforts to normalise her stress associated with her menstruation has not been successful; and, due to the child’s severely impaired intellectual capacity, those psychological techniques which might otherwise be used to normalise the traumatic impact on her of menstruation would not be successful.

Consideration

1. It is clear from the evidence of Dr C and Dr D that the child is not now capable of making an informed decision about the proposed procedure and there is no prospect that she will be able to make such decision in the future: that is, she will never become Gillick[3] competent; there is simply no prospect that, with the passage of time, she will be able to develop the capacity to make an informed decision about her own medical issues and/or give consent to the proposed procedure.

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

1. I accept Dr D’s evidence to the effect that there is no alterative or less invasive treatment than the proposed procedure that will remove the challenge of managing the child’s menstruation or the impact on her and her functioning of the same.

2. I accept Dr C’s evidence that the fact of the child’s extended menstrual periods have caused her trauma; I also accept that, due to her severely impaired intellectual capacity, techniques that might otherwise be applied in normalising the impact upon her of experiencing extended periods of menstruation would not be successful.  I also accept that the child’s low IQ and cognitive impairment are such that her ability to understand reproduction, contraception, pregnancy and childbirth now and in the future are severely restricted and unlikely to improve to any real extent.

3. I accept that the benefits to the child in undergoing the proposed procedure outweigh the risks identified by Dr D as being those to which she will be exposed as a consequence of the performance of the same. I consider that the proposed procedure will permit the child to enjoy her life to the fullest extent possible; it will free her from having to endure something she hates and which causes her stress and distress; it will also completely remove the risk that she continues to engage in self-harming behaviours as a manifestation of this stress and distress. Successful implementation of the proposed procedure will, in my view, free the child to be the 7 ½ year old child that she is and always will be.

4. For the reasons expressed above, I am satisfied that the orders set out at the commencement of these Reasons are orders which are in the child’s best interests.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 7 November 2018.

Associate:     

Date:              7 November 2018