Re: LG

[2017] FCWA 179

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: RE: LG [2017] FCWA 179

CORAM: DUNCANSON J

HEARD: 14 DECEMBER 2017

DELIVERED : 16 JANUARY 2018

FILE NO/S: PTW ####

BETWEEN: THE MOTHER

Applicant

AND

THE FATHER
Respondent

Catchwords:

CHILDREN - Gender Dysphoria - Consideration as to whether the child is Gillick competent - Where it is declared that the child is Gillick competent to consent to Stage 3 treatment

Legislation:

Family Law Act 1975 (Cth) s 67ZC

Category: Not Reportable

Representation:

Counsel:

Applicant: Counsel A

Respondent:

Independent Children's Lawyer : Independent Children's Lawyer

Solicitors:

Applicant: Law Firm A

Respondent:

Independent Children's Lawyer : Law Firm B

Case(s) referred to in judgment(s):

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

Re: Kelvin [2017] FamCAFC 258
Re: Lincoln (No. 2) [2016] FamCA 1071

Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 ("Marion's case")

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1These proceedings concern LG, a 17 year old girl who has been diagnosed with Gender Dysphoria. LG was born female, but strongly desires to live as a male. In these reasons I shall refer to LG using the male pronoun.

2By application filed 17 August 2017 LG's mother sought an order from the Court in the following terms:

The Applicant Mother have leave to authorise the treatment of the child … with respect to Gender Identity Dysphoria including stage 2 hormonal treatment and to undergo a bi‑lateral mastectomy in accordance with the recommendations of her treating medical team at [Hospital A] in terms of both the timing and nature of treatment, for the purpose of facilitating [LG's] future gender reassignment.

3The application came before me on 3 October 2017. On that date I made orders including an order by consent of LG's parents that his mother have leave to authorise LG's treatment with respect to Gender Identity Dysphoria including stage 2 hormonal treatment.

4By way of background I found as follows:

…

4[Paragraph suppressed].

5In early childhood LG preferred male clothing and male activities preferring active outdoor play and sports and having more male friends. Since the age of eight LG realised he was “different” from his female friends, but did not understand in which way and he began to be confused and distressed. When he reached puberty his psychological distress about his gender and female characteristics increased. He came out to his family and friends as transgender in late 2015. He gradually socially transitioned during 2015. By late 2016 LG had complete social transition and commenced the 2017 school year as a male.

6LG identifies as male and continues to take steps towards living as a male.

7LG has a history of mixed anxiety and depressive symptoms, past episodes of deliberate self-harm and suicidal ideation. LG’s overall mental health has improved since he has come out as transgender and his gender identity was validated and supported.

8LG was referred to [Hospital A] on 8 March 2017. He commenced stage 1 hormone puberty blocking therapy using Lucrin in March 2017.

9LG attends Year 12 at [School B] and is functioning well socially and academically. He excels [athletically]. He wishes to [apply to attend University C] in November 2017.

10LG and his father were emotionally estranged at the commencement of stage 1 treatment, however since that time LG and his father have been increasing their contact and re-establishing their relationship. They have been spending positive and quality time together. LG’s father has expressed his support for LG’s access to testosterone treatment and he consents to the orders sought.

11LG has expressed no regrets for starting stage 1 treatment and strongly wishes to undergo stage 2 cross-hormonal treatment.

12The applicant also sought an order that the proceedings stand adjourned generally pending advice from LG’s treating practitioners as to stage 3 treatment. That is a matter which is currently under review and in the event that the treatment is sought prior to LG’s 18th birthday, the application will be relisted.

5I was not asked to make a finding that LG was competent to consent to stage 2 treatment, however I found LG was capable of making an informed decision about, and consented to, stage 2 partially irreversible hormone treatment with testosterone.

6I was satisfied the proposed medical procedure was in the best interests of LG.

STAGE 3 TREATMENT

7In her application LG's mother sought an order that she have permission to authorise the treatment of LG including stage 3 treatment and specifically to undergo a bilateral mastectomy. By her minute dated 12 December 2017 LG's mother then sought a declaration that LG is Gillick competent to consent to a bilateral mastectomy for the purpose of further facilitating his gender reassignment. It was appropriate to consider whether LG was competent to consent to the proposed treatment. I am satisfied that he was. I made orders on 14 December 2017. These are my reasons.

THE LAW

8In Re: Jamie (2013) FLC 93-547 the Full Court addressed the circumstances in which stage 1 and stage 2 treatment for what was then referred to as "childhood gender identity disorder" required the authorisation of the Court. At page 87,326 Bryant CJ summarised as follows:

…

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.

9Consequently, the Full Court determined that where stage 2 treatment is proposed what the Court must determine is whether the child is competent to consent to the treatment in the manner set out in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. If the child is determined to be as such, it is not necessary for the Court to authorise parental consent to the treatment, or the treatment itself, under s 67ZC of the Family Law Act 1975 (Cth) ("the Act"), absent any controversy.

10The guidance of the Full Court in Re: Jamie (supra) with respect to stage 2 treatment has been adopted by subsequent Courts to determine whether a child is Gillick competent to consent to stage 3 treatment, see for example Re: Lincoln (No. 2) [2016] FamCA 1071.

11In Re: Kelvin [2017] FamCAFC 258 the Full Court ordered that the questions stated for the opinion of the Full Court be answered as follows:

…

Question 1:Does the Full Court confirm its decision in Re Jamie (2013) FLC 93-547 to the effect that Stage 2 treatment of a child for the condition of Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition) DSM-5 (the treatment), requires the court’s authorisation pursuant to s 67ZC of the Family Law Act 1975 (Cth) (“the Act”), unless the child was Gillick competent to give informed consent?

Answer:No

Question 2:Where:

2.1 Stage 2 treatment of a child for Gender Dysphoria is proposed;

2.2. The child consents to the treatment;

2.3. The treating medical practitioners agree that the child is Gillick competent to give that consent; and

2.4. The parents of the child do not object to the treatment

is it mandatory to apply to the Family Court for a determination whether the child is Gillick competent (Bryant CJ at [136‑137, 140(e)]; Finn J at [186] and Strickland J at [196] Re Jamie)?

Answer: No

…

12In their joint reasons Thackray, Strickland and Murphy JJ state at [164] that stage 2 treatment "… can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority and requires the imprimatur of the Court". Their Honours continue:

182.Now, of course, if as appears to be the case, the nature of the treatment no longer justifies court authorisation, and the concerns do not apply, then there is also no longer a basis for the Court to determine Gillick competence.

13As to stage 3 treatment, their Honours clarified as follows:

16.So that it is clear, stage 2 treatment does not include stage 3 treatment which treatment involves surgical interventions. Those interventions include:

a)Chest reconstructive surgery (also known as top surgery) (Re: Quinn [2016] FamCA 617; Re: Tony [2016] FamCA 936; Re: Leo [2015] FamCA 50; Re Lincoln (No. 2) [2016] FamCA 1071)

b)Phalloplasty

c)Hysterectomy

d)Bilateral salpingectomy

e)Creation of the neovagina

f)Vaginoplasty

14The observations of the Full Court in Re: Kelvin (supra) with respect to stage 2 treatment do not extend to stage 3 treatment. I will rely on the guidance of the Full Court in Re: Jamie (supra) to determine whether LG is Gillick competent to consent to the stage 3 treatment that is proposed.

THE EVIDENCE

15The mother relied on a report from [Dr D], [a specialist in E] who reports that LG is completing Year 12 of high school and engaged in exams for university entrance. LG excels [athletically]. He is highly involved in [athletics]. He plans to study next year in a course which involves [athletics].

16LG currently uses a tight binder to present a masculine chest appearance. The binder restricts his breathing and his freedom of movement. It makes it difficult to [perform athletically] to his best ability and to do physical exercise. Dr D reports it is psychologically intolerable for LG to appear in public without a binder due to his strong gender dysphoria feelings.

17Dr D reports:

[LG] expresses a very strong wish to have bilateral mastectomy (chest reconstruction for gender affirmation) as soon as possible, so that he can have a period of physical recovery before he commences the university year in early 2018. He would like to be able to commence university with a masculine chest appearance, without having to use a binder, both because it will facilitate his engagement in [athletics] and physical fitness, and because it will facilitate being recognised clearly as male by others.

18Dr D reports that in discussion with LG it was clear to her that he was aware that surgical complications are possible and not uncommon, and that there could be painful conditions requiring ongoing further surgical treatment.

19Dr D defers to the opinion of the [a specialist in F] about whether LG has a full and mature grasp of all of the relevant risks and potential complications of the surgery, as it is not within her scope of practice to have informed consent discussions for surgical procedures.

20Dr D refers to the guidelines which have been published by the World Professional Association for Transgender Health Standards of Care version 7 ("the WPATH guidelines"). As to irreversible interventions the guidelines provide (original emphasis):

Genital surgery should not be carried out until (i) patients reach the legal age of majority in a given country, and (ii) patients have lived continuously for at least 12 months in the gender role that is congruent with their gender identity. The age threshold should be seen as a minimum criterion and not an indication in and of itself for active intervention.

Chest surgery in FtM patients could be carried out earlier, preferably after ample time of living in the desired gender role and after one year of testosterone treatment. The intent of this suggested sequence is to give adolescents sufficient opportunity to experience and socially adjust in a more masculine gender role, before undergoing irreversible surgery. However, different approaches may be more suitable, depending on an adolescent's specific clinical situation and goals for gender identity expression.

21Dr D reports she believes it is appropriate to take a conservative position in interpreting these guidelines regarding chest reconstruction for adolescents and young adults as this treatment is a significant surgical procedure, has risks, and requires significant post-operative care and recovery time. Although surgeons advise it can be cosmetically reversible to some degree there is irreversible scaring and loss of sensation and the loss of ability to lactate.

22As a rule Hospital A recommends that young people wait until over the age of 18 years, before deciding on chest reconstruction surgery to allow a greater maturity and to allow the young person a significant period in which to experience the effects of testosterone treatment and to psychologically adjust to these effects.

23Dr D reports that as at the date of her report, namely 9 November 2017 LG would have experienced only two to three months of testosterone treatment by the time of the hoped for surgery in December 2017. Her department did not encourage LG to seek early chest reconstruction, but he has a strong wish to access the surgery.

24Dr D reports that the WPATH standards of care allow for flexibility in this regard as set out above.

25Dr D is of the view that LG's situation of experiencing strong dysphoria related to his chest appearance and having a strong wish to be consistently recognisable as a male and freed from the restriction of a binder before commencing the next stage of his education very soon is the kind of situation referred to in the guidelines.

26Dr D states that for LG to access chest surgery at this time is therefore consistent with the WPATH standards of care as long as there is a full discussion with him about the implications of only being on testosterone for a short time before surgery.

27Dr D discussed this with LG and in particular an increased risk of regret through proceeding rapidly through the stages of transition. She reports LG acknowledges this possibility, but has a strong view that he should have the right to take this risk of regret, as he is aware of it and is confident he is making the best decision for himself. He is confident the chest surgery is in his own best interests and he will be happy with it. He is prepared to accept the possibility of disappointment and regret as something he would cope with if he had to. In LG's estimation this risk is worth it in comparison to his estimation of the benefits of early surgery.

28[Dr G], [a specialist in H] provided a report dated 16 November 2017. He reported LG started stage 1 therapy in March 2017 and stage 2 therapy in October 2017. He was not in a position to comment on the surgical aspect of therapy. He reported LG has a long history of male gender identity with good family support. He is tolerating hormone therapy well.

29[Dr I], [a specialist in J] also provided a report. Dr I last had contact with LG in June 2017. She reported that in the context of using a binder and discussing its impact on his [athletic performance], LG clearly expressed to her a strong and consistent wish to have surgery to remove his breasts. She was not able to give an opinion about surgery, but recognised that this surgery was very important for LG in terms of expressing his potential as a man, improving his confidence about his self-image and appearance and possibly impacting on his mood.

30Dr I was not able to give an opinion as to whether LG has the maturity and intellectual capacity to understand the short and long-term implications of receiving treatment.

31LG's mother strongly supports LG accessing early chest surgery as does LG's general practitioner, who is concerned that a delay in surgery would be detrimental to LG's mental health.

32[Mr K], a specialist in F provided a report dated 30 November 2017. He originally saw LG in March 2017 when LG sought information about bilateral mastectomies as part of a female to male transition.

33Mr K reviewed LG again on 22 September 2017 and they further discussed surgery; both the techniques and possible complications from such surgery.

34LG was reviewed by Mr K on 27 November 2017 after he had approximately three months of testosterone treatment. They further discussed the surgery and possible complications.

35Mr K reported:

I believe [LG] has a full and mature grasp and understanding of the surgery required; the relevant risks and the potential complications of such surgery. I see no reason not to proceed with the wishes of the patient.

IS LG GILLICK COMPETENT?

36In Gillick (supra) Lord Scarman said at 188-189:

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.

37The High Court confirmed that this principle applies in this jurisdiction in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) at 237-238 (footnotes omitted):

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

38I have carefully considered the evidence which I have set out above. I am satisfied on the basis of that evidence and primarily that contained in the reports of Dr D and Mr K that LG is competent to consent to the treatment which is proposed.

ORDERS

IT IS DECLARED THAT

The child LG born [in] 2000 is competent to consent to chest reconstructive surgery for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition) ("DSM‑5").

IT IS ORDERED THAT

1The child's full name, her family members, her medical practitioners, the court file number and any other fact or matter that might identify the child shall not be published in any way.

2Only anonymised reasons for judgment and orders (with cover sheets excluding the file name and number, and lawyer's names and details, as well as the child's names both past and present) shall be released by the Court to non-parties without further contrary order of the judge.

3No person shall be permitted to search the court file in this matter without first obtaining the leave of a judge.

I certify that the preceding [38] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate