Re: Leo - [2015] FamCA 50

FAMILY COURT OF AUSTRALIA

RE LEO

[2015] FamCA 50

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are parents of a child with Gender Dysphoria – Where the applicants seek a declaration that the child is competent to authorise his own treatment for Stage 2 administration of testosterone and for male chest reconstruction surgery – Where the child is 16 years of age – Where the child was born a female and has identified and behaved as male from an early age ––– Consideration of whether the child is Gillick competent – Where the child’s treating doctors, the Independent Children’s Lawyer and the respondent support the application – Declaration made as to the child’s Gillick competence to consent to Stage 2 testosterone treatment and chest reconstruction surgery.

FAMILY LAW – EVIDENCE – MEDICAL PROCEDURES – DISPUTE – Whether there is a dispute between the child’s treating doctors regarding the child’s Gillick competence – Where there is one doctor who expressed reservations about the proposed chest reconstruction surgery in a letter to a general practitioner five months prior to the hearing date – Where that doctor subsequently retired and is not currently treating the child – Where that doctor declined to participate in the court proceedings – Where that doctor has not had the benefit of recent or frequent contact with the child or of considering the reports prepared for the proceedings – Where there is no dispute between the doctors who prepared reports for the Court – Finding that there is no dispute between the child’s treating doctors.

Family Law Rules 2004 (Cth) Rule 4.09

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Jamie (2013) FLC 93-547

APPLICANTS:

The Father and the Mother

RESPONDENT:

Relevant Government Agency

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

6 February 2015

JUDGMENT OF:

Rees J

HEARING DATE:

3 February 2015

REPRESENTATION

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

Orders

IT IS ORDERED

That the Court declares that the child Leo born on … 1998 is competent to consent to the administration of Stage 2 treatment for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.
That the Court declares that the child Leo born on … 1998 is competent to consent to male chest reconstruction surgery for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.
That the Court grants leave to apply on short notice in relation to the implementation of the declaration and any associated matter.
That the full name of the child Leo, his family members, the hospital, the Independent Children's Lawyer, his medical practitioners, his school, this Court’s file number, any expert witness, 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 Leo shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of a judge, it being noted that each party shall be handed one full copy of these orders with the relevant details included, to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.
That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.

IT IS ORDERED BY CONSENT

That the independent children’s lawyer is permitted to provide a copy of this order and the judgment to Dr K.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re Leo 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 and the Mother

Applicants

And

Relevant Government Agency

Respondent

REASONS FOR JUDGMENT

THE APPLICATION

The Father and the Mother (“the applicants”) are the parents of the child Leo who was born, genetically female, in 1998. Since an early age Leo has identified himself as being male and he now wishes to undergo male chest reconstruction surgery and ongoing testosterone therapy.
The applicants come before the Court seeking, in the alternate, either a declaration that Leo is competent to make this decision for himself and thus Court authorisation is not required or, if necessary, that the Court authorise the parents to consent to the testosterone therapy and to the surgical procedure.
The parties to the proceedings are Leo’s parents, an independent children’s lawyer (“ICL”) and the Secretary of the relevant Government Agency. The Agency did not call evidence in the proceedings but was represented by Counsel who made submissions. The ICL caused Leo to be independently assessed by a child and family psychiatrist, Dr K, whose report was tendered.
Both the applicants and the ICL provided written submissions.
None of the witnesses was required for cross-examination.
Leo was present in Court during the submissions.

THE LAW

The issue of the role of the Family Court of Australia in cases involving childhood gender identity disorders was definitively explored in the decision of Re Jamie (2013) FLC 93-547 (“Re Jamie”) by the Chief Justice and Finn and Strickland JJ. In separate judgments their Honours each determined that in cases where the proposed treatment is irreversible without surgical intervention the issue for the Court is to determine whether the child is competent within the meaning of the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick competent”). Their Honours held unanimously that in the event that the Court finds that the child is Gillick competent then the authority of the Court is not required to authorise the treatment.
Tendered in evidence before me was a document entitled “Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People”, produced by the World Professional Association for Transgender Health. Some of Leo’s treating professionals, and particularly his psychologist, Ms W have referred to the “Standards of Care” in reports.
Whereas in the decision of the Full Court in Re Jamie the Court referred to Stage 1 and Stage 2 treatment, the “Standards of Care” document sets out three categories or stages of treatment as follows:
1.Fully reversible interventions. These involve the use of GnRH analogues to supress estrogen or testosterone production and consequently delay the physical changes of puberty. Alternative treatment options include progestins (most commonly medroxyprogesterone) or other medications (such as spironolactone) that decrease the effect of androgens secreted by the testicles of adolescents who are not receiving GnRH analogues. Continuous oral contraceptives (or depot medroxyprogesterone) may be used to supress menses.
2.Partially reversible interventions. These include hormone therapy to masculinize or feminize the body. Some hormone-induced changes may need reconstructive surgery to reverse the effect (e.g., gynaecomastia caused by estrogens), while other changes are not reversible (e.g., deepening of the voice caused by testosterone).
3.Irreversible interventions. These are surgical procedures.
It is clear that the procedures referred to in the judgment of the Full Court in Re Jamie as Stage 1 procedures are identical with the procedures referred to in the “Standards of Care” document as Stage 1 procedures.
The decision of the Full Court does not refer to a Stage 3 procedure, however, it is clear from the judgment of the Full Court that, in referring to Stage 2 intervention, the Court is dealing with treatment, the consequences of which are irreversible and that the stages referred to as Stage 2 and Stage 3 in the “Standards of Care” document equate to Stage 2 in the judgment of the Full Court.
In Re Jamie, the Full Court was dealing with both Stage 1 and Stage 2 treatment.
At paragraph 140 of her Honour’s judgment, the Chief Justice said:
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 attract the jurisdiction of the Family Court of Australia under s 67ZC of the Act and require 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 s 67ZC.
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.
f)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.
Finn J. said at paragraph 188:
If the court was completely satisfied of the child’s capacity to consent to stage two treatment, it would be unnecessary for it to have to authorise the treatment. That could be left to the child. But if the court had any doubt about that capacity, then it would have to determine for itself the question of whether the stage two treatment should be authorised.
Strickland J. said at paragraphs 195 - 196:
In relation to stage two treatment, I agree that the therapeutic benefits of the treatment need to be weighed against the risks involved and the consequences which arise out of the treatment being irreversible, but that given the nature of the changes that would result for the child that treatment should require court authorisation. This would not be the case though where the child is able to give consent to the proposed treatment.
Whether the child is able to fully understand and give informed consent to stage two treatment, and thus court authorisation is not required, 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.
The issue therefore in relation to Leo is whether or not he is Gillick competent to consent to both testosterone therapy and the proposed surgical procedure.
On this issue, the applicants relied upon a report by Ms W, a psychologist to whom Leo was referred on 28 June 2013. At the time of Ms W’s report Leo had attended 14 sessions with her over 19 months.
Dr M, a plastic and reconstructive surgeon, prepared a report in relation both to the general advisability of the surgery for Leo and his own assessment of Leo’s understanding of the benefits and detriments of the proposed procedure.
Clinical Associate Professor C (“Professor C”), who is an endocrinologist , to whom Leo was referred in January 2014, prepared a report recommending that the current regime of testosterone therapy be continued. Professor C has also expressed her views as to Leo’s competence to consent to the proposed procedure.
The ICL relied upon the independent assessment by Dr K, a child and adolescent psychiatrist, who prepared a report for the Court dated 29 January 2015.
It is not in issue that the surgery is recommended for Leo by Dr M and Leo’s continued treatment with testosterone is recommended and supported by Professor C.

IS THERE ANY DISPUTE BETWEEN LEO’S TREATING DOCTORS?

Counsel for the ICL brought to the Court’s attention a letter from Dr Y, a psychiatrist, to Leo’s general practitioner, dated 7 August 2014.
Dr Y was Leo’s psychiatrist and had seen Leo on four occasions, the last being on 5 August 2014. He is not currently treating Leo and has retired from practice.
In his letter, Dr Y stated:
I spent a lot of time explaining my reservations about “top surgery” prior to age 18. (Dr [Y] was referring to the proposed reconstruction surgery). I tried to be very diplomatic and supportive, but it was bad news for [Leo] as he wishes to have “top surgery” in the Christmas holidays. At that stage he will have been on testosterone for 11 months.
It is not clear from Dr Y’s letter whether his “reservations” specifically related to the present case or to all children under the age of 18.
Both the ICL and the applicants attempted to have Dr Y participate in the proceedings. The solicitor for the applicants contacted Dr Y requesting that he prepare a report. He did not respond.
Leo’s mother also contacted Dr Y and received an abrupt message from him to the effect that she should cease bothering him.
The ICL sent an email to Dr Y asking to contact him but received no reply. The only action taken by Dr Y in the proceedings is to produce his notes in relation to Leo, pursuant to a subpoena issued by the ICL. At least at 7 August 2014 there was evidence that Dr Y did not agree that the surgical treatment should be carried out at this time.
The generality of the opinion expressed by Dr Y in his letter of 7 August 2014 does not enable the Court to be satisfied that Dr Y has turned his mind to the specific matters required to be addressed pursuant to Rule 4.09 of the Family Law Rules 2004 (Cth) including the “exact nature and purpose” of the procedure, the “particular condition of the child”, and whether the particular child is capable, or incapable, of making an informed decision about the procedure.
However, Dr Y’s current opinion cannot be canvassed in circumstances where he declines to participate in the proceedings. Dr Y has not had the benefit of recent or frequent contact with Leo, as have Ms W and Dr K and Dr Y, and has not had the benefit of considering the reports that have been prepared for the purpose of the proceedings.
Dr Y is not a currently treating doctor and there is not currently any disagreement among Leo’s medical practitioners as to the recommended treatment.
I do not consider that there is any “dispute” within the terms of paragraph 140(f) of the judgment of the Chief Justice in Re Jamie. However, if I am in error in that regard, I make it clear that I would resolve the dispute by accepting the evidence of the experts who prepared reports and evidence under oath (all of whom agree) to the opinions that Dr Y expresses in less than clear terms in a letter dated August 2014.

IS LEO GILLICK COMPETENT?

In Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, it was said by Lord Scarman at 88-90:
In the light of the foregoing 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. Emergency, parental neglect, abandonment of the child, or inability to find the parent are examples of exceptional situations justifying the doctor proceeding to treat the child without parental knowledge and consent: but there will arise, no doubt, other exceptional situations in which it will be reasonable for the doctor to proceed without the parent’s consent.
Ms W in her report said:
It is my opinion that [Leo] is competent to provide consent for this, treatment, that is, Testosterone (Stage 2 physical partially reversible intervention) and Chest Reconstruction Surgery (Stage 3 physical irreversible intervention). The reasons for my opinion include [Leo’s] consistent demonstration of knowledge of this and other treatments to address his gender dysphoria, and his realistic appraisal of possible treatment outcomes. [Leo’s] grasp of the issues exceed expectations for his sixteen and a half years.
[Leo]:
·has demonstrated clearly that he is able to comprehend and retain existing and new information about the proposed treatment. In particular, [Leo] has consistently conveyed information to me about the treatments he is interested in, and those he has commenced, with accuracy and detail, verified by his treating medical staff. He has continued this pattern with the current treatment.
·has provided me with full and comprehensive explanations of the nature of the treatment, in his own age-appropriate language, in detail most adults would find difficult.
·is able to explain the advantages of the treatment. [Leo] has emphasised to me the relief he is anticipating from no longer needing to find his chest, or fear of being misgendered.
·is able to explain the disadvantages of the treatment. For example, [Leo] outlined the short-term difficulties associated with treatment, including consequences of general surgery (such as pain, recovery process restrictions, risks of aesthetic), and long-term issues such as chest scarring, and possible complications such as contour irregularities. He cannot see any social or psychological disadvantages, given that he is already living as a male.
·is able to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when he should proceed with the treatment. The WPATH Standards of Care recommend a staged process for transition, with adolescents moving from one stage to another only when there has been adequate time for adolescents and their parents to assimilate fully the effects of earlier interventions. Unfortunately [Leo] had passed puberty at the time of presentation to medical services, and was unable to benefit from initial puberty – blocking hormones, however [Leo] and his parents have followed a staged process, beginning with social transition, followed by masculinising hormone treatment. [Leo] has felt and demonstrated enormous improvement to his mental health with each step of transition, and does not consider it an option to stop living as a male. Consequently, he sees further medical affirmation of his gender identity as logical and “worth any negative consequences”.
·is able to understand that to proceed with the treatment could have consequences that cannot be entirely foreseen at the time of the decision. [Leo] was philosophical about this topic, stating that “anything can happen in life”, and that the “best I can do is make decisions based on the information I have now”. [Leo] has already endured difficulties, and has developed great resilience across his short life.
·is able to understand that the treatment will not necessarily address all of any psychological or social difficulties that he has before commencement of treatment. [Leo] is very clear about the limitations of physical treatment for his general mental health. He also points out the vast improvement in his life since beginning testosterone treatment, and the incomprehensible distress that he would feel if he were stopped from pursuing the next stage of treatment.
·is free, to the greatest extent possible, from ‘temporary factors’ such as pressure or pain that could impair his judgment in providing consent to this treatment.
[Leo] has persistent, well-documented gender dysphoria; he has the capacity to make a fully informed decision and to consent for treatment; and there are no significant medical or mental health concerns currently present.

Professor C in her report stated:
[Leo] was first seen in the Department in late January 2014 and was accompanied by his father. He was referred by a psychiatrist who has considerable expertise in treating transgender adolescents who recommended that he commence testosterone treatment and he stated that [Leo] had given his informed consent to treatment and has a capacity to do so as he was Gillick competent. He was also seeing a psychologist with considerable expertise in treating transgender patients, who also recommended that treatment be commenced. [Leo] took part in an active discussion about the nature of the treatment which was being proposed at that stage and impressed me as an intelligent young person who had carefully thought through the issues involved and who had sufficient maturity to make a decision regarding treatment. That is I agreed that he was Gillick competent.
Dr M in his report stated:
At the conclusion of our 45-minute consultation, I felt that [Leo] and his parents had a good understanding of the proposed surgery, the likely outcome, recovery process, potential complications and relevant aesthetic issues. Both [Leo] and his parents seemed extremely keen to proceed, to minimise the psychological distress that [Leo] was experiencing from the presence of his female chest configuration and the need to bind his breasts to camouflage his breasts. [Leo] had a clear understanding of the purpose of the surgery, as explained, to attempt to give him a more masculine chest configuration. I am confident that [Leo] can maturely describe the surgery, and both the advantages and disadvantages of such, and make a rational decision about proceeding with this. I also believe [Leo] appreciated the permanence of the decision to undergo mastectomies.
Dr K in his report prepared at the request of the ICL reported:
In my view, [Leo] does meet criteria for childhood gender identity disorder, and is experiencing gender dysphoria, the latter lessening as he has identified as male in all social settings and has commenced testosterone treatment, but persisting in terms of body dysphoria with regard to his chest, and to a lesser extent some genital dysphoria.
Dr K reported “In my view [Leo] is Gillick competent for the purpose of consenting to the administration of testosterone treatment.”
Dr K reported that Leo was identified as an intellectually gifted student and is achieving well academically. Particularly, Leo is doing well in English which requires a capacity to read, interpret and analyse information and to form and express opinions about the information. Dr K reported that Leo presented at interview as a clever, thoughtful and articulate young man, who had the intellectual capacity to understand the treatment and its impacts upon him and to conduct a costs/benefit analysis of the treatment.
Dr K reported that, at age 16, neurodevelopmentally, Leo would be expected to have developed a significant capacity for abstract reasoning and relativistic thinking. At interview Dr K found this to be the case.
Dr K formed the view that Leo has also achieved sufficient understanding to enable him to understand fully what is proposed by way of treatment. He noted that because the testosterone treatment had already commenced, his assessment was of Leo’s understanding of what had already commenced in his body, as well as an understanding of the implications of the proposed continuation of the treatment.
Dr K’s impression of Leo is that he is “quite a thorough and responsible young man. He appeared to have been quite pro-active in seeking out information about testosterone treatment from a range of sources prior to commencing treatment, and during the process in terms of issues arising and possible future issues.” Dr K reported that Leo appeared able to weigh and integrate information from different sources, for example from his treating professionals, from professional sights on the internet, and from first person accounts and blog discussions on the internet. Dr K reported that Leo had sought out information to challenge his current opinion, in addition to information that might reinforce his opinion. He presented with a detailed knowledge of the potential benefits and the potential side effects of testosterone treatment and the progress of the treatment over time.
Dr K reported that Leo’s responses to his questions about the treatment demonstrated that he had thought through the issues arising from that knowledge. In quite a detailed discussion of the treatment and its implications for Leo, Dr K found that he did not raise an issue that Leo did not appear to have already considered. Dr K assessed that Leo was able to identify the downsides as well as the upsides of the testosterone treatment and to be realistic about the extent of the upsides.
Dr K discussed with Leo the issue of possible regret and considered that Leo had considered those issues. Dr K reported that Leo:
understood that the impacts of the testosterone treatment were only partly reversible upon ceasing treatment, and expressed a detailed knowledge regarding this. He understood that he might regret treatment in future both in terms of pragmatic outcomes if side effects come to predominate over benefits, and in terms of a philosophical stance if he was to come to regret having artificially altered his body. He considered future desire to return to identifying as female was highly unlikely, but could acknowledge the possibility of same.
Dr K did not identify any mental health, relational or characterological issues disrupting Leo’s intelligence or understanding.
Dr K also reported “In my view, [Leo] is Gillick competent for the purpose of consenting to male chest reconstructive surgery.” Dr K reported that the general comments to which reference has been made about Leo’s methods of information gathering and styles of thinking in relation to testosterone treatment also apply with regard to the proposed reconstructive surgery. Dr K reported that Leo was able to articulate the potential benefits of the surgery, in terms of addressing his “chest dysphoria” in a considered and balanced way.
Dr K reported that Leo was able to articulate the risks associated with the surgery and the downsides of the surgery. He was aware that there was risk associated with the aesthetic, aware of the risk for the need of repeated surgery for example because of complications, the risk associated with scarring and the risk of a negative subjective response, that is that he might not like the result.
Dr K reported that Leo was able to identify that there will be some social awkwardness about the scars of the surgery and the activities which might be curtailed by the scarring. Leo had sought information about how others who had had the surgery deal with questions of the scars and formed a strategy that he proposed to adopt. Dr K reported that Leo’s knowledge of the surgery was extensive and Dr K did not raise any issue that Leo had not already considered.
Dr K reported that Leo had researched different technical versions of the procedure and had met with two surgeons who each used a different version and selected one based on technical advantages and disadvantages.
Dr K was told by Leo that the selected method is preferred because the scarring is less obvious and more in line with natural physical contours, but has the disadvantage compared with the non-chosen procedure, that there is likely to be less remaining nipple sensation. Dr K reported that Leo has watched the operation online and looked at a lot of photographs of the results in terms of appearance and scarring. Leo has also followed some first person accounts of people going through the procedure including the experience of one man who experienced a side effect and had to have a second operation. In summary Dr K reported:
My opinion is that [Leo] is a child who has achieved a sufficient understanding and intelligence to enable him to understand fully what is proposed, both in terms of consenting to the administration of testosterone as Stage 2 treatment of childhood gender identity disorder, and in terms of consenting to male chest reconstruction surgery.
I am satisfied on the basis of the evidence which I have set out in these reasons that Leo is competent to consent to the treatment which is proposed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 February 2015.

Associate:

Date: 6/2/2015