Re Lesley (Special Medical Procedure) - [2008] FamCA 1226

FAMILY COURT OF AUSTRALIA

RE LESLEY (SPECIAL MEDICAL PROCEDURE)

[2008] FamCA 1226

FAMILY LAW - CHILDREN – Special medical procedure – Gonadectomy where Child identifies as a girl – Competence of the Child – Need for Court sanction – Consideration of alternatives to the procedure – Necessity of the appointment of an Independent Children’s Lawyer – Best interests of the Child – Authorisation of parents to proceed permitted.

APPLICANT:

A HOSPITAL

RESPONDENT:

THE FATHER AND THE MOTHER

FILE NUMBER OMITTED

DATE DELIVERED:

12 December 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

12 December 2008

REPRESENTATION

names of representatives omitted

Orders

Only parties to the proceedings and their legal representatives may be present in Court during the proceedings in accordance with section 97(2) of the Family Law Act1975 (Cth).

The identity of the child and the Respondents in this Application not be disclosed.

A declaration in the following terms in accordance with section 67ZC of the Family Law Act 1975 (Cth):

a.the proposed surgery for Lesley involving the bilateral removal of her gonads (“gonadectomy”), as outlined in the affidavits of Dr Z and Dr X, is in the best interests of Lesley; and

b.the proposed surgery for Lesley being the bilateral removal of her gonads (“gonadectomy”), as outlined in the affidavits of Dr Z and Dr X, may be authorised by her parents, …;

c.such further or other necessary and consequential procedures to give effect to the treatment of Lesley for her condition of 17-β/HSD deficiency, including hormonal treatment as outlined in the affidavits of Dr Z and Dr X, may be authorised by her parents, …;

d.all scientists, doctors and other medical practitioners be and are hereby authorised to conduct such operations and procedures indicated in (b) and (c) above upon the written authority of the said Father and Mother.

IT IS NOTED that publication of this judgment under the pseudonym Re Lesley (Special Medical Procedure) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

A HOSPITAL

Applicant

And

THE FATHER AND THE MOTHER

Respondent

REASONS FOR JUDGMENT

This is an application for the Court to authorise a special medical procedure commonly known as a gonadectomy
The application has been brought by the A Hospital. An affidavit was filed by leave on today's date explaining the circumstances that give rise to the hospital electing to bring the application.
As required by the Rules, the application has been served on the Queensland Department of Child Safety. The Department instructed the State Crown Law Office and a legal representative from the Crown Law Office has appeared on behalf of the Department.
The parents of the child Lesley born in […] 2004, are in Central Queensland and they have attended the proceedings by telephone link. At the request of the Court a representative of the Legal Aid Office has appeared to make submissions to whether an Independent Children's Lawyer should be appointed in this matter.
The material relied upon consists of the application for final orders, to which I shall refer in some detail in a moment, the affidavits of the respective parents, and the affidavits of three specialist medical practitioners, Dr Z, Dr X and Dr T.
The specific orders/declarations sought are in the following terms:
a)A declaration is sought that the proposed surgery for Lesley involving the bilateral removal of her gonads (“gonadectomy”), as outlined in the affidavits of Dr X and Dr Z, is in the best interests of Lesley; and
b)That the proposed surgery for Lesley being the bilateral removal of her gonads (“gonadectomy”), as outlined in the affidavits of Dr X and Dr Z, may be authorised by her parents, ….
c)That such further or other necessary and consequential procedures to give effect to the treatment of Lesley for her condition of 17-β/HSD deficiency, including hormonal treatment as outlined in the affidavits of Dr X and Dr Z, may be authorised by her parents, ….
d)All scientists, doctors and other medical practitioners be and are hereby, authorised to conduct such operations and procedures indicated in (b) and (c) above upon the written authority of the said Father and Mother.
Submissions were made as to the form of orders. I have had regard to the observations by counsel for the Department of Child Safety and I shall advert to that shortly. He queried whether a Court can delegate its authority and suggested the delegation should be given direct by the Court to the medical practitioners and not via the parents, as the orders appear to provide.
Pursuant to the Court Rules any of the following persons may make a medical procedure application in relation to a child:
a) A parent of a child;
b)A person who has a parenting order in relation to the child;
c)The child;
d)The Independent Children's Lawyer;
e)Any other person concerned with the care, welfare and development of the child.
I am satisfied that the hospital is a legal body capable of bringing the application and comes within the category in sub-paragraph (e).
The Rules provide that the parents must be named as respondents in the event that they have not brought the application. That has been done. Rule 4.09 deals with the evidence to support the application. I am satisfied that the material produced covers all the aspects of r 4.09. The Rules provides for the prescribed child welfare authority to be served and that has been done and the appearance noted.
I note r 4.12 provides procedure on the first Court date.
"On the first Court date for a medical procedure application the Court must:
(a)make procedural orders for the conduct of the case and adjourn the case to a fixed date of hearing; or
(b)hear and determine the application."
Obviously each case has to be assessed on its merits and a decision made whether a further adjournment is required and, if so, to canvass reasons for such.
A protocol was established between the Family Court, the Department of Child Safety and the Legal Aid Office Queensland. It is to be found in a 1996 text "A Question of Right Treatment, The Family Court and Special Medical Procedures for Children." The introduction notes:
"The High Court of Australia has decided that while parents or guardians ordinarily have authority to consent to medical procedures some procedures are so significant and grave in their consequences for the child that the consent of a Court is required. These are called special medical procedures. Applications for authorisation of these procedures can be made to the Family Court of Australia."
And thereafter the protocol sets out in detail the methodology to be adopted in bringing such an application.
I place on record that I arranged for a Registrar of the Court to contact the Legal Aid Office to appear to make submissions on the future conduct of this matter and I gratefully acknowledge the presence of a legal representative from that office.
Affidavits confirming the parents’ consent to the procedures have been filed. Written submissions have been produced by the legal representatives for the applicant and the Department.
The application is supported by the three specialist doctors I have mentioned, each from a different discipline. Dr T is a child psychiatrist; he is not attached to the A Hospital. He has been engaged principally to give independent advice to the parents and also to provide his affidavit on the basis of his knowledge that this application would be lodged. He expresses his expert opinion on the consequences for the child in the event of the procedure not being authorised.
At paragraphs 5 and 6 under the subheading "[Lesley’s] condition" the doctor notes:
"[Lesley] suffers from 17-β/HSD deficiency. Her karyotype is 46XY, which means that she is genetically male, but she has been reared as a female since birth."
Paragraph 6:
"I have not assessed a child with this particular very rare condition in the past, although I have assessed many children with various similar disorders of sexual development and gender identity."
In paragraph 8 under the subheading "Opinion" Dr T says:
"In my clinical judgment [Lesley] clearly identifies as a girl. [The Father and Mother] see and treat her as a girl, as do the rest of her family."
Paragraph 9:
"It is my opinion that the rearing of [Lesley] as a female child has been entirely appropriate from a psychological point of view. By this I mean that:
(a)[Lesley’s] parents made a decision that was consistent with the medical recommendation as the sex of rearing given [Lesley’s] external genitalia; and
(b)They made an early decision to raise [Lesley] as a girl and have been consistent in their treatment of her as a girl, thus avoiding the difficulties which can arise from delayed decision-making or ambiguous implementation.”
Paragraphs 12 and 13:
"Because of the nature of her disorder [Lesley’s] brain was not exposed to testosterone in utero. It is unlikely, therefore, that she will display masculine-like behaviours linked with other disorders of sexual development that are associated with in utero exposure to increased testosterone or other masculinising hormones."
Paragraph 13:
"In my opinion it is highly unlikely that [Lesley’s] gender identity will alter in the future. She clearly identifies as female and it is my view that she is likely to continue to identify as a female."
In paragraph 14 under the heading "Psychological Impacts":
"There will be at least some long-term psychological and social impacts on [Lesley] whether or not the proposed surgery for removal of the gonads is performed. In my opinion though there will be much lesser impact if the surgery is performed than if it is not."
In paragraphs 16 and 17 he opines:
"If the gonadectomy is not performed there is a very real chance that [Lesley] will virilise in a male fashion during puberty. I believe that this would have serious psychological and social consequences for [Lesley], likely to be aged 10 or 11 at the onset of puberty on the basis of family history. She would be at real risk of developing an anxiety disorder or depression."
Paragraph 17:
"Further, if the gonadectomy is not performed I believe that [Lesley’s] parents will remain very anxious about the risks of cancer and a chance that [Lesley] will virilise. These anxieties will have a flow-on effect on [Lesley] and I believe would have long-term detrimental impact on her."
The legal representatives and the parents were all given the opportunity to question any of the specialist doctors on their evidence and no such examination was sought.
I turn to consider the affidavit of Dr X. Dr X is a paediatric surgeon. He is the surgeon who would perform the procedure if authorised. He describes it as a 15 minute laparoscopic procedure. It constitutes day surgery. Whilst it may be a relatively simple, straightforward procedure with little risk it is accepted that -the consequences are life-long and irreversible.
In paragraphs 3, 4, 5, 6 of his affidavit under the heading "[Lesley’s] Condition" he repeats what Dr T had summarised. He records that he has been involved in Lesley’s care since September 2004. He has reviewed her recently and has had the advantage of reference to her medical records for the purposes of preparing his affidavit evidence. At paragraph 4 he records:
"[Lesley] was born with ambiguous genitalia. An ultrasound of the pelvis and external genitalia performed on […] 2004 demonstrated the presence of gonads bilaterally in the labial area and the basis of penile tissue with a corpora cavernosa of each side. The imaging undertaken on [Lesley] has been unable to identify uterine or ovarian tissue."
A copy of the imaging report is annexed.
Paragraph 5:
"In late 2006 genetic tests performed in France and the United States confirmed that [Lesley] has mutations in the HSD 17B3 gene."
and attached to the affidavit is a copy of each of the reports dated 10 November and 19 November respectively from those particular laboratories. I have made reference to those reports during the course of submissions. Those reports clearly corroborate in their text the opinions expressed by the three doctors. I do take into account the fact that the opinions of the doctors are uniform. There is no variation, as is occasionally found when experts are asked to give detailed opinions on critical issues.
In paragraph 6 he details how Lesley’s condition arose. It is not challenged by anybody, that Lesley is too young to provide consent. I will refer briefly to PAB3, which is the report from the molecular genetic analysis from France. It says:
"As you know, 27 KSR deficiency affected patients always virilise at puberty. Gonadectomy should therefore be considered before the time of expected puberty."
I turn to consider the affidavit of Dr Z a Fellow of the Royal Australian College of Physicians, a specialist, a paediatrician and an endocrinologist. He canvasses events at the time of Lesley's birth and the attendance by Dr Y paediatrician what was done at that time and the medical procedures that she has had since then.
Dr Y referred Lesley to Dr Z and his first examination was in March 2006, the child would have been two years of age at that time. He says:
"The diagnosis for [Lesley] was still evolving. I was seeking an understanding of gender identity for [Lesley] given the emerging diagnosis of 17-β/HSD deficiency. In some children with this order there is testosterone present in childhood and in such a case it would be possible to rear the child as a male and allow later virilisation to occur. However, in [Lesley’s] case her presentation demonstrates she has a complete block in the expression of testosterone within the testes and this reinforces as correct the initial decision to rear [Lesley] as a girl."
Under the heading "Genetic Testing and Confirmation of Diagnosis" at paragraph 15 the doctor opines:
"The 17-β/HSD gene regulates the production of testosterone. The mutation of the gene causes defective production of testosterone, particularly in utero. This is why [Lesley] was born with a vagina and labia and physical appearance of a female."
Paragraphs 17 and 18:
"This process will be effective to produce enough testosterone to cause the virilisation resulting in the development of very severe acne, voice changes, cliteromegaly, excessive facial hair and body hair and a masculine body habitas."
It is not known when those changes would occur is a factor which weighs heavily in favour of making an early determination in this matter. The likelihood is she will identify as a female for the future, that is their opinion, and if these changes come about it would have a devastating effect on a girl of that age. I mention that cliteromegaly is more than just a swelling of the clitoris, it is actual enlargement of the clitoris.
Paragraph 18:
"Additionally, because the gonads in [Lesley] are in the wrong place there is an increased risk that cancer will develop. This risk is caused by the testes being in a different temperature environment."
Counsel has informed me that the risk is as high as 28 per cent, which is a further important factor to be taken into consideration.

Effects of the procedure

At paragraph 22:
"Removal of the gonads will prevent virilisation from occurring because the gonads are the major source of the precursor of testosterone for [Lesley]."
Paragraph 23:
"[Lesley] will be infertile. She cannot reproduce as a female and she will not be able to reproduce as a male if the gonads are removed."
Paragraph 24:
"If the gonads were to remain after puberty sperm could theoretically be extracted from them and used as a donor sperm, but [Lesley] could not otherwise reproduce. However, I am not aware of any reported cases of patients with this condition being fertile. This is because it is unlikely that there will be a high enough concentration of testosterone inside the testes to produce fertile sperm."
Counsel for the Department briefly described this as a sterilisation procedure. I accept that in a technical sense it could be so described, but I do not think it really is primarily a sterilisation procedure. That is what one would expect normally from a gonadectomy, but in the circumstances here the view that I have formed on the evidence is that Lesley would be unable to reproduce either as a male or a female.
Paragraph 25 adverts to the future consequences for Lesley:
"The removal of [Lesley’s] gonads will cause her to be deficient in sex hormones. She would thus need in due course sex hormone treatment to induce normal adolescent development. It is proposed that oestrogen would be administered to feminise [Lesley] to be an adult female. The oestrogen administration should start no later than 13 years of age and would be given increasing doses until normal adult female levels of oestrogen are achieved, probably at about 16 years of age. Thereafter, those levels should be maintained until menopause."
The risks in carrying out the procedure are few but including minor scarring.
The medical practitioners have been described by counsel for the applicant as eminent in their field and I accept that description. The affidavits of the parents are detailed and make it quite apparent that they have had explained to them the details of the procedure and the consequences of the procedure, the risks of the procedure and so forth.
On today's date they have had the opportunity to be heard. I take into account that they are not legally represented, but they have not sought to be represented as their views are those expressed by the medical specialists.
I detected a clear preference on behalf of the parents for the matter to be resolved expeditiously.
I have had regard to the rules in this matter, to the protocol, to the helpful written submissions by the applicant's counsel and by counsel for the Department
I have had regard to the oral submissions of the legal representative from the Legal Aid Office. The evidence persuades me it is a clear case where any further delay is not in the child’s interest.
I propose to make a series of findings. The decision of the High Court in the matter Secretary, Department of Health and Community Services –v- JWB and SMB (“Marion’s case”) (1992) 175 CLR 218 is authority for the proposition this Court has jurisdiction in an application such as this. I find because of the child's age she is not competent. I find that this is a procedure which requires the sanction of a Court. I accept a contrary view is arguable, but the better view is that this is a matter that falls squarely within the principles enunciated in Marion's case. I propose to conclude that the alternative options have been canvassed, fully considered and ruled out.
In that regard I refer to paragraph 43 of counsel's submissions in the following terms:
"According to Dr [Z] the alternative to the surgical treatments proposed are to:
(a)take no action and allow [Lesley] to virilise and make a determination about her gender later; or
(b)give [Lelsey] medication to block the production and action of testosterone and replace that with oestrogen."
When I turn to Dr Z's affidavit, paragraphs 28 to 30 to which I was referred, under the heading "Alternative to Surgery" he says:
"One alternative to surgery is to take no action and allow [Lesley] to virilise and for her to later make a determination about her own gender. As indicated above in paragraphs 19 and 20, this would involve significant risks of malignancy and would likely have a significant psychological impact."
Paragraph 29:
"Another alternative to surgery would be to give Lesley medication to block the production and action of testosterone and then to replace that with oestrogen."
Paragraph 30:
"In my opinion this is clearly not the best course medically. The high doses of oestrogen which would be necessary would have significant side effects on liver and adrenal function. I am not aware of any other case where this treatment has been offered to a patient with this disorder and I would consider it experimental."

I take into account the fact that three specialist doctors from different fields are all expressing a recommendation for the procedure to be performed. The institution which brings the application is a highly respected hospital in Australia and internationally. The views expressed have been corroborated by reports from genetic testing laboratories in the United States and France.
I note that the Department has had the opportunity to be heard the Department has not made any submissions against the orders being made in terms of the application.
Ms Davies considered the appointment of an Independent Children's Lawyer would be of assistance to the Court. I have considered the guidelines appropriate for the appointment of an Independent Children's Lawyer. The main thrust of her submissions was the lifelong and irreversible nature of the procedure and there is no immediate urgency. She wished to canvass other options to surgery.
Balanced against that, I am satisfied the other options have been considered. They have been considered not in the subjective fashion by somebody with particular interest, have been considered in an objective scientific environment, a high level medical environment and to further investigate that aspect would not be helpful.
Whilst I appreciate the cooperation of the Legal Aid Office of Queensland in this process I have reached the conclusion that the Court would not be assisted by the appointment of an Independent Children's Lawyer to resolve this matter.
I am satisfied the proposed procedure is in the best interests of the child. I am satisfied the form of orders is appropriate, that I can delegate the authority to the parents as to the timing to suit them, but in any event by the final paragraph of the orders there is a general authority to medical practitioners and associated specialists.
ORDER DELIVERED
In conclusion I can say that I am comforted that I have reached what accords with the opinion of the three highly qualified specialist doctors, the hospital authorities generally, the hospital's legal representatives, the parents and the representative of the Department.
In reaching the conclusion I am only too conscious of anecdotal accounts of individuals having gender reassignment procedures later in life, having great difficulty accepting the situation that has been thrust on them. On the medical evidence available that would not be indicated as likely in Lesley's case. I note that many of the accounts are sensationalised in the media. I far prefer the evidence set out in the medical reports.
The ultimate persuading factor is that the risk to the child from doing nothing far exceeds the recommended option of surgery. It is a relatively simple procedure but is one which it has lifelong and irreversible consequences. I find it is in the best interests of the child for the procedure to be approved.
RECORDED : NOT TRANSCRIBED

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date: 12 December 2008