Re: Kerry

[2016] FamCA 970

FAMILY COURT OF AUSTRALIA

RE: KERRY [2016] FamCA 970

FAMILY LAW – CHILDREN – SPECIAL MEDICAL PROCEDURES – Where the applicants are the parents of a child diagnosed with Gender Dysphoria – where the applicants seek a finding that the child is Gillick competent to consent to Stage Two treatment for Gender Dysphoria – 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), s 140
Family Law Act 1975 (Cth), ss 67ZC, 68L, 69H(1), 78, 97(2), 100B(2), 121

Family Law Rules 2004 (Cth), rr 4.08(a), 4.09(3), 4.10

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie [2013] FamCAFC 110; 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

FIRST APPLICANT: The Father

SECOND APPLICANT: The Mother

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 21 November 2016

JUDGMENT OF: Thornton J

HEARING DATE: 30 May 2016

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders made 30 May 2016

1. These proceedings be known by and referred to as ‘Re: Kerry’. 

2. The full name of KERRY (formerly N) born …1998 – now known and referred to as ‘Kerry’ – Kerry’s family members and their occupations, any medical practitioner and hospitals, Kerry’s school and any staff at the school, the court file number, the State of Australia in which the proceedings were initiated, the names of the applicants’ legal representatives, any witnesses, and any other fact or matter that may identify Kerry shall not be published in any way and only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number, lawyers’ names and details, as well as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. 

3. Notwithstanding paragraph 2 of these orders each of the parties to these proceedings shall be at liberty to collect by hand a full copy of the orders and any reasons for judgment published thereunder with all of the identifying details which are otherwise excluded by paragraph 2 of these orders and such documents may be provided to the treating medical practitioners.

4. No person shall be permitted to search the court file in this matter without first obtaining the leave of a Judge of the Court.

5. Until further order pursuant to s 100B(2) of the Family Law Act 1975 (Cth) (“the Act”), Kerry be permitted to be present and remain in court during the hearing of the application filed 18 May 2016.

6. Upon the Court being satisfied that Kerry is competent to consent to the medical treatment described in the Initiating Application filed 18 May 2016, the Court authorises Kerry to make her own decision in relation to that treatment.

7. The treatment described in the Initiating Application filed 18 May 2016 is estrogen hormone therapy treatment.

8. The applicants be at liberty to provide a copy of the unanonymised orders and the unanonymised reasons for judgment to all persons involved with the child’s treatment.

9. The applicants’ Initiating Application filed 18 May 2016 be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Kerry 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 suppressed

The Father

First Applicant

And

The Mother

Second Applicant

REASONS FOR JUDGMENT

Introduction

1. These are my reasons for making an order finding that Kerry, who at the time of making the order was aged 17 years and six months, is competent to consent to her own medical treatment, commonly known as Stage Two treatment for Gender Dysphoria, in the form of oestrogen hormone treatment.

2. Kerry (formerly N) was born a male but now identifies as a female. She informed her parents that she was female and of her desire to live as a female in January 2015. Kerry subsequently changed her name and has transitioned to female socially and at home and school.  She has been diagnosed with Gender Dysphoria and wishes to undergo Stage Two treatment.

3. Kerry’s parents brought an urgent application for a finding that Kerry is competent pursuant to the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick competent”) to consent to her own Stage Two treatment or alternatively that Kerry be conferred parental responsibility in relation to medical issues.  As the parents of Kerry, the applicants have standing to make this application.[1]

   [1] Family Law Rules 2004 (Cth), r 4.08(a).

4. Due to the sensitive nature of the subject matter of these proceedings, I made the usual orders reinforcing s 121 of the Family Law Act 1975 (Cth) (“the Act”) preserving Kerry’s anonymity, which include not only protecting her given and chosen names, but also other information such as the names of the medical practitioners, lawyers and other professionals and entities involved.

5. There is no controversy about Kerry’s diagnosis, her wishes or her competence to provide informed consent for her own medical treatment.  Kerry’s treating professionals, Dr T and Dr K, support the parents’ application.

The Law: “Gillick” Competence

1. The term “Gillick” refers to the English case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“the Gillick case”).

2. In Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) the High Court said that the view of the House of Lords in the Gillick case represented the common law in Australia. 

3. In the Gillick case, Lord Scarman recognised the underlying principle in the case law that parental right yields to the child’s right to make his/her own decisions when he/she reaches a sufficient understanding and intelligence to be capable of making up his/her own mind on the matter requiring decision.  Lord Scarman referred to the spirit and principle of the law captured by Lord Denning MR when he said that:

   The common law can, and should, keep pace with the times. It should declare … that the legal right of a parent to the custody of a child ends at the 18th birthday; and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.[2]

   [2] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 129 (Lord Scarman), quoting Hewer v Bryant [1969] 3 All ER 578, 582 (Lord Denning MR).

4. In the Gillick case Lord Scarman said 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.

5. In Marion’s case, Mason CJ, Dawson, Toohey and Gaudron JJ, in discussing the Gillick principle enunciated by Lord Scarman, said as follows at 237-238:

   A minor is, according to [the Gillick] principle, 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”.

   This approach, though lacking the certainty of a fixed age rule, accords with experience and with psychology. It should be followed in this country as part of the common law.

   (References omitted).

6. In Re: Jamie [2013] FamCAFC 110; 50 Fam LR 369 (“Re: Jamie”) the Full Court held that stage two treatment of gender dysphoria (administration of testosterone or oestrogen) was a medical procedure that required court authorisation, unless the Court found that the child was Gillick competent and thus able to fully understand and give informed consent to stage two treatment at the time it was to commence. The Full Court found that it was the Court’s responsibility to assess whether or not a particular child was Gillick competent.

7. In summarising her conclusion in Re: Jamie Bryant CJ relevantly said (inter alia) at [140]:

   …

   c)In relation to stage two treatment, as it 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.

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

   (Original emphasis).

8. In that same case Finn J, whilst expressing reluctance to impose upon the child and his/her parents the costs and stress of further court proceedings, particularly when the Court may ultimately reach the same decision which the child and his/her parents had already reached with the child’s doctors, stated at [186]:

   Nevertheless, I have concluded that at least the question of the child’s capacity to consent to treatment which has the irreversible effects of stage two treatment must remain a question for the court. I have reached this conclusion because of the requirement by the High Court majority in Marion’s case for court authorisation for irreversible medical treatment in circumstances where there is a significant risk of the wrong decision being made as to the child’s capacity to consent to the treatment and where the consequences of such a wrong decision are particularly grave, as they would be in this case.

9. Her Honour, in reaching that conclusion, took into account “the persuasive submissions” made on behalf of the Australian Human Rights Commission and the public authority “which support continued court involvement in decisions concerning stage two treatment”.[3]

   [3] Re: Jamie [2013] FamCAFC 110; 50 Fam LR 369, [187].

10. In the same case Strickland J agreed with the outcomes proposed by both the Chief Justice and Finn J and generally for the reasons set out by each of them. He stated at [196] :

    Whether the child is able to fully understand and give informed consent to stage two treatment… is a threshold issue that the court must decide. This is because of the requirement by the High Court majority in Marion’s case that it is for the court to authorise medical treatment that is irreversible where there is a significant risk of the wrong decision being made as to the child’s capacity to consent to the treatment, and where the consequences of such a wrong decision are particularly grave.

Jurisdiction

1. This application is brought under Part VII of the Act.

2. Section 69H(1) of the Act provides that jurisdiction is conferred on the Family Court in relation to matters arising under this part.

3. Section 67ZC of the Act provides additional jurisdiction under Part VII of the Act to make orders relating to the welfare of children. It was inserted by an amendment to the Act in 1995 and reads:

   (1)In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.

   (2)In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

4. Subdivision BA of Part VII of the Act deals with how the Court determines a child’s best interests.

5. The Court has power to make an order under s 67ZC of the Act to authorise medical treatment. In the circumstances of this case it is not necessary to do so because, for reasons set out below, I am satisfied that Kerry is Gillick competent. 

Procedure

1. Section 68L of the Act allows for the appointment of an Independent Children’s Lawyer in proceedings under the Act in which a child’s best interests are, or a child’s welfare is the paramount, or a relevant consideration. It is a discretionary matter for the Court as to whether a child’s interests in the proceedings ought to be independently represented by a lawyer.

2. Having regard to all the circumstances of this case, including Kerry’s age and the urgency of the proceedings, I am satisfied that the appointment of an Independent Children’s Lawyer is unnecessary. In Re K (1994) FLC 92-461 at 80,773 the Full Court issued guidelines as to the circumstances in which an Independent Children’s Lawyer should usually be appointed. One of the categories referred to in those guidelines was applications in the Court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not adequately represented by one of the parties. In the circumstances of this case, I am satisfied that the child’s interests are adequately represented by the parents who are the applicants. I am fortified in that view by the evidence of the expert witnesses.

Service of the Application

1. Rule 4.10 of the Family Law Rules 2004 (Cth) (“the Rules”) requires that an application for a special medical procedure be served upon the prescribed child welfare authority. Ordinarily I would require that both the relevant Department and the relevant statutory authority be served pursuant to r 4.10.

2. At the hearing, the solicitor for the parents advised the Court that both the Department and the statutory authority had been served with the application in accordance with r 4.10. An affidavit of service in respect to the statutory authority was filed in Court on 30 May 2016 and was relied upon by the parents in support of their application. In relation to the Department, the solicitor for the parents indicated from the bar table that the Department were served on 19 May 2016 and that an affidavit of service in respect to this organisation had already been filed. On subsequent inspection of the court file and following enquiries being made with the Court’s Registry staff, the affidavit of service in relation to the Department that was purportedly filed prior to the hearing could not be located, nor was it recorded as having been received by the Court. Accordingly, I caused my Associate to contact the solicitor for the parents and request that he re-file the affidavit of service in relation to the Department. Such affidavit was subsequently filed via email on 20 September 2016. I am satisfied that both the statutory authority and the Department have been served in compliance with r 4.10 of the Rules.

3. An email from the statutory authority dated 24 May 2016 was tendered by the solicitor for the parents in which they indicated that they do not seek to be involved in the proceedings (Exhibit A).  At the hearing, the solicitor for the parents advised the Court that he had not received any response from the Department indicating whether or not they sought to be heard or participate in the proceedings.

Evidence and Standard of Proof

1. The rules provide that evidence may be given in the form of an affidavit or orally with the Court’s permission.[4] The documentary evidence relied upon for this hearing is listed in Annexure A to these reasons. 

   [4] Family Law Rules 2004 (Cth), r 4.09(3)

2. The standard of proof applicable is on the balance of probabilities under s 140 of the Evidence Act 1995 (Cth).

3. At [139] of Re: Jamie, Bryant CJ held that for 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. Her Honour stated that in the absence of some controversy, she could see no reason why any other party needed to be involved and that it would be an issue of fact to be determined by the Court on the material presented.  The other members of the Full Court either did not express a contrary view or expressed implicit agreement with the Chief Justice on this point.

4. For the purposes of the hearing before me, no witnesses were cross-examined and the case proceeded by way of submissions only.

The Nature of the Proposed Medical Treatment

1. Kerry is currently receiving puberty suppression hormone treatment and has been receiving such treatment since 18 December 2015.

2. It is now proposed that Kerry commence Stage Two treatment in the form of oestrogen administration. This is outlined in detail in the evidence of Dr T.

Gillick Competence

1. The evidence of Kerry’s parents and treating doctors, Dr K and Dr T, supports a finding that she is Gillick competent. That evidence is summarised below.  The evidence also provides a foundation for the urgency of the application.

Evidence of the Parents

1. Both the applicant parents swore and filed affidavits in support of the orders sought. Their affidavits in substance contain the same evidence.

2. The mother and the father deposed to the following matters regarding Kerry and I accept their unchallenged evidence.

3. From birth until Grade 6 Kerry presented as a happy and content child who enjoyed “boy’s activities”.[5] In Grade 3 Kerry began experiencing some behavioural issues at home and school; Kerry was diagnosed with ADHD by and saw a psychologist for 12 months after which time she has had no ongoing issues with ADHD.

   [5] Affidavit of the Mother filed 18 May 2016, [7].

4. As a young child until her teenage years, Kerry’s primary attachment figure was her father. Since becoming a teenager Kerry has become more primarily attached to her mother.

5. Although she was performing well academically, towards the end of Year 7 Kerry began to withdraw from her friends, preferring to be on her own at home. She appeared sad and withdrawn from her family, again preferring to spend time on her own. At this time both the mother and the father started to notice some feminine mannerisms in Kerry.

6. Kerry’s withdrawn behaviour continued and she requested to move to a school closer to home in the middle of Year 8. In September of that year Kerry told the mother that she thought she was gay.

7. Kerry performed well at her new school however she continued to isolate herself from her friends and at home and was often angry and snappy. Her parents thought Kerry’s behaviour was a combination of teenage behaviour and her trying to come to terms with being gay.

8. As a result, towards the end of 2012 the mother encouraged Kerry to join a youth group for LGBTIQ teenagers. It was through the support of that group that Kerry came to understand that she had been born into the wrong body and was in fact a girl.

9. During 2013 Kerry told a few of her close friends at school that she wanted to be called Kerry although at that time Kerry kept her new identity a secret from her parents and school, dressing as a girl when she was alone at home.

10. In mid-January 2015, prior to commencing at a new school, Kerry placed a letter on the mother’s pillow addressed to her parents with a number of informational leaflets. In that letter Kerry conveyed to her parents her realisation that she was female and that she wished to transition to female and change her name and also provided them with links to resources to help them learn about gender and how best to support her.

11. In early February 2015 Kerry and her parents attended upon their general practitioner and obtained a referral to X Hospital Gender Dysphoria Clinic however they were informed that they should expect up to a one year delay in receiving an appointment.

12. Following the receipt of this news, the mother and father became concerned about Kerry’s mental health and enrolled her in sessions with a psychologist who Kerry continues to see very two to three weeks.

1. During Term 2 of 2015 Kerry decided that she wished to transition to a girl at school. At the end of Term 2 Kerry addressed her school and told them of her transition. The reaction to her transition was positive and Kerry’s transition both at school and home was completed very smoothly. Both Kerry’s family and friends were accepting of Kerry’s announcement.

2. However by mid-2015 Kerry was being consumed by a sense of hopelessness about not being able to physically transition. In July 2015 Kerry told a friend through social media that she wanted to self-harm; that friend alerted her parents who reported it to the school principal. Kerry’s parents were immediately contacted and the school arranged for Kerry to speak with the school psychologist. The school principal contacted the Gender Dysphoria Clinic at X Hospital in an attempt to hasten Kerry’s access to an appointment without success.

3. In October 2015 Kerry finally received an appointment date and had an initial appointment, accompanied by her parents, with Dr T and Dr K in November 2015. Stage One treatment commenced shortly thereafter.

4. However, Kerry was very down and depressed at the delay involved in being able to commence Stage Two treatment due to the current legal requirements. Dr T had informed Kerry that there could be up to a one year wait in commencing Stage Two treatment because of the legal requirement of obtaining an order from this Court.

5. On 7 January 2016 Kerry contacted Dr T and expressed that she was very depressed and frustrated with the current legal situation and again was thinking of self-harm.

6. Kerry is disgusted with her current body in almost every way. The mother is very scared that Kerry may “follow through with her thoughts of self-harm” if she is unable to complete Stage Two treatment.

7. Both parents love Kerry unreservedly and want her to be able to commence Stage Two treatment “to grow into the woman she deserves and has the right to be.”

Evidence of Dr T

1. Dr T is Kerry’s paediatrician and is a subspecialist adolescent physician at X Hospital Gender Service. She has prepared a report dated 7 January 2016 (Annexure A to her affidavit filed 18 May 2016) in relation to Kerry’s competency to consent to Stage Two treatment.  Dr T is of the opinion that Kerry is Gillick competent.

2. I accept the expertise of Dr T and her unchallenged expert evidence in the terms that follow.

3. Dr T reports that following Kerry having been assessed by both herself and Dr K on 19 November 2015, it became clear that Kerry has Gender Dysphoria and would benefit from use of Stage One (puberty blocking) treatment. Following that assessment, Kerry underwent blood tests, completed fertility preservation counselling and was referred to Dr M, senior clinical psychologist at X Hospital, who subsequently confirmed the diagnosis of Gender Dysphoria. Dr T also notes that Dr K confirmed that Kerry meets the diagnostic criteria for Gender Dysphoria.

4. Dr T notes that Kerry had socially transitioned to living as a female full time prior to attending X Hospital, has legally changed her name to Kerry and is accepted and well supported as female both within her home and school environments.

5. Kerry commenced Stage One (puberty blocking) treatment on 18 December 2015 with her parents’ consent. Dr T records that Kerry has not experienced any side effects from Stage One treatment.

6. Following the commencement of Stage One treatment, Kerry sent emails to Dr T “suggesting she was at risk should she have to wait until adulthood to commence Stage 2 treatment with oestrogen”.[6] Dr T records that Kerry had become preoccupied with her desire to medically transition with female hormones, that she was distressed at the delays caused by the requirement of legal approval to commence Stage Two treatment and that she had increasing suicidal ideation in this context.

   [6] Report of Dr T (Annexure A to her affidavit filed 18 May 2016).

7. Dr T also reports that Kerry had told her that she had considered gaining access to and using the oral contraceptive pill. Dr T states that the hormones Kerry would have access to through the oral contraceptive pill were not those usually prescribed for adolescent transgender females due to medical risks involved in doing so, which Dr T explains in her report. It was Dr T’s advice to Kerry that she should not access hormones through the oral contraceptive pill and that an urgent request could be made to this Court to approve safe and appropriate treatment.

8. The Stage Two treatment of oestrogen proposed by Dr T would commence with Kerry orally taking oestradiol valerate at the recommended initial dosage of 1mg daily. During the first six to 12 months of this treatment the puberty blocker zoladex (which is currently administered to Kerry as part of the Stage One treatment) would be continued to prevent a rise in endogenous testosterone levels. On cessation of the zoladex, spironolactone would be commenced at 100mg twice daily to block the endogenous testosterone effect on Kerry’s body. After a period of six to 12 months the dose of oestradiol valerate would be reassessed and possibly increased to 2mg daily. The final adult dose of oestradiol valerate is 2-4mg daily which Dr T says would be reached following two years of treatment. Dr T states that this treatment is appropriate for the longer term management of Kerry’s Gender Dysphoria.

9. Dr T records the likely long-term physical, social and psychological effects on Kerry both if the treatment is carried out and not carried out as well as the specific risks of oestrogen and spironolactone. Dr T states that she has had a number of discussions with Kerry about the use of oestrogen and spironolactone and the complications that may occur. It is Dr T’s opinion that Kerry has been able to understand these discussions and ask appropriate questions. Kerry chose not to store sperm prior to the commencement of puberty blockers.

10. In giving her opinion as to whether Kerry is capable of making an informed decision about Stage Two treatment, Dr T says as follows:[7]

    I feel that [Kerry] has the intelligence and emotional maturity to consent to the procedure. I also believe that she agrees to the procedure. Her treatment pathway was initiated by [Kerry] herself and she has been the one to drive the process through assessment and treatment. She is highly intelligent and demonstrates this through her personal communication and her academic success.

    [7] Report of Dr T (Annexure A to her affidavit filed 18 May 2016).

Evidence of Dr K

1. Dr K is a consultant child and adolescent psychiatrist at X Hospital. She has been working as a consultant child and adolescent psychiatrist for 21 years and has spent the past eight years working with children and adolescents with gender identity issues as well as children with disorders of sex development who have psychological problems.

2. Dr K prepared a report dated 10 May 2016 (Annexure A to her affidavit filed 18 May 2016) in relation to possible treatment for Kerry for gender dysphoria at the request of the applicants’ solicitors.

3. I accept the expertise of Dr K and her unchallenged expert evidence in the terms that follow.

4. Dr K carried out the assessment of Kerry over two occasions in November and December 2015, with the initial consultation being conducted, as previously referred to, in conjunction with Dr T. She provides an overview of Kerry’s history, noting that in January 2015 Kerry wrote a letter to her parents about being transgender and that Kerry was not coping well in the middle of 2015 and was having suicidal thoughts.

5. Dr K reports that Kerry clearly identifies fully as a female and that this has been persistent for more than two years. She noted there was no evidence of psychiatric symptoms reported or observed during the interview. According to Dr K, Kerry has mild symptoms of anxiety mainly related to the Gender Dysphoria.

6. It is Dr K’s opinion that Kerry meets the criteria for a diagnosis of Gender Dysphoria (DSM V 302.6) and gender identity disorder (transsexual type) (ICD 10 F64.0). Gender Dysphoria (DSM-V) is defined by Dr K as follows:[8]

   [8] Report of Dr K (Annexure A to her affidavit filed 18 May 2016).

   A.A marked incongruence between one’s experienced/expressed gender and assigned gender, of at least 6 months’ duration, as manifested by at least two of the following

   1.    A marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics)

   2.    A strong desire to be rid of one’s primary and/or secondary sex characteristics because of marked incongruence with one’s experienced/expressed gender (or in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics).

   3.    A strong desire for the primary and/or secondary sex characteristics of the other gender.

   4.    A strong desire to be of the other gender (or some alternative gender different from one’s assigned gender).

   5.    A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender).

   6.    A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender).

   B.The condition is associated with clinically significant distress or impairment in social occupational or other important areas of functioning.

7. Dr K notes that the stage two treatment is partially reversible and should Kerry change her mind she can return to her life identified as a boy. However she would need appropriate medical and psychological support throughout this period.

8. Dr K is of the opinion that commencing stage two treatment is likely to minimise the risk of major mental health problems for Kerry.  If Kerry does not undergo stage two treatment, Dr K is of the opinion that Kerry is likely to experience significant anxiety and depression and likely to put her at risk for self-harm.  She also notes that there is “no serious comorbid psychiatric disorder in [Kerry’s] case that would influence the decision regarding treatment”. 

9. Dr K is also of the opinion that the treatment will benefit Kerry by improving her psychological well-being, boosting her self-esteem and body image.  It is also likely to improve Kerry’s peer relationships and social functioning as she will continue to have a degree of relief from the distress around gender issues.

10. Dr K describes Kerry as a “bright young woman of above average intelligence, with capacity enough to assess her own needs” and has initiated seeking help for gender issues.[9]  Significantly she notes that Kerry’s parents “agree to and are supportive of [Kerry] receiving the treatment”.

    [9] Report of Dr K (Annexure A to her affidavit filed 18 May 2016).

11. It is Dr K’s opinion that Kerry is Gillick competent and that she appears to understand the full extent of the proposed treatment, including negative effects and the possibility of future change of mind.

Findings and Conclusion

1. I accept the unchallenged evidence of the expert witnesses and Kerry’s parents.

2. On the basis of all the evidence, I am satisfied on the balance of probabilities that Kerry is competent to fully understand the nature and consequences of the treatment described in the application and to make her own decision in relation to that treatment.  The evidence before me proves that Kerry has carefully considered, understood and retained the information presented to her regarding the stage two treatment for gender dysphoria.   I am satisfied that she has demonstrated that she has achieved a sufficient understanding and intelligence to enable her to understand fully the proposed treatment.   I am satisfied that she has the capacity to understand the information relevant to making the decision and to appreciate the potential consequences.

3. Kerry at the time of the hearing was 17 years and six months old.  Significantly, if she was aged 18 at that time this application would not be necessary.

4. I am satisfied that it is appropriate to make a finding that Kerry is competent to make her own decision regarding the stage two treatment for gender dysphoria.

The form of the order

1. The principal order sought in the Initiating Application was framed in terms of a declaration.

2. There would appear to be some controversy about whether the Court has the power, absent a statutory conferral of power, such as in s 78 of the Act, to make a declaration regarding these types of applications.

3. The solicitor for the applicants in discussion in Court indicated that if the order is framed in terms of a finding that Kerry is competent to consent to the medical treatment described in the application and authorises her to make her own decision in relation to that treatment, rather than a declaration, that this would not be an impediment for the purposes of the treating doctor administering the treatment.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 21 November 2016.

Associate: 

Date:  21 November 2016

Annexure A

Documents relied upon by the applicants:

• Initiating Application filed 18 May 2016

• Affidavit of Dr T filed 18 May 2016;

• Affidavit of Dr K filed 18 May 2016;

• Affidavit of the Mother filed 18 May 2016;

• Affidavit of the Father filed 19 May 2016;

• Affidavit of Service filed 30 May 2016; and

• Affidavit of Service filed 20 September 2016.

Exhibits tendered by the applicants:

• Exhibit A – Email correspondence from the statutory authority to the solicitor for the applicants dated 24 May 2016