Re: Lincoln

[2016] FamCA 267

FAMILY COURT OF AUSTRALIA

RE: LINCOLN [2016] FamCA 267

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are parents of a child with gender dysphoria – Where the applicants seek a finding that the child is competent to authorise Stage 2 treatment – Where the child’s treating medical experts support the child commencing Stage 2 treatment and agree that the child is competent to make such a decision – Whether the child is Gillick competent – Where the Court finds the child is competent at law to make his own decision as to Stage 2 treatment.

Family Law Act 1975 (Cth)

Gillick v West Norfolk and Wisbech Area Health Service [1986] AC 112
Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”)

FIRST APPLICANT: The Mother

SECOND APPLICANT:	The Father
INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 22 April 2016

JUDGMENT OF: Justice Stevenson

HEARING DATE: 18 April 2016

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

1. The full name of Lincoln, his family members, his hospital, the Independent Children’s Lawyer, his medical practitioners, his school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of Lincoln’s parents’ lawyers, and any other fact or matter that may identify Lincoln shall not be published in any way, and only anonymised reasons for judgment and orders (with cover-sheets excluding the registry, file-number, and lawyers’ names and details, as well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 numbers and lawyers’ names.

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

3. Upon the Court being satisfied and finding that the child Lincoln born on … 2001 is competent at law to consent to Stage 2 medical treatment for gender dysphoria, the Court authorises Lincoln to make his own decision in relation to that treatment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Lincoln 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 Mother

First Applicant

And

The Father

Second Applicant

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The proceedings

1. The Mother and the Father are the parents of a child known as Lincoln, who was born in 2001 and is presently fifteen years of age.  Lincoln is genetically female but identifies as a male person.  He has been diagnosed with the condition Gender Dysphoria.  Lincoln commenced Stage 1 treatment with puberty blockers in May 2015.  It is now proposed by Lincoln, his parents and his treating medical specialists that he commence Stage 2 treatment, which involves the administration of exogenous testosterone.

2. By Initiating Application filed on 28 January 2016 the Mother and the Father (“the parents”) sought the following Final Orders:

   1.That the Court declares that the child [LINCOLN] born … 2001 [sic] 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.

   2.That the full name of [Lincoln], his family members, his hospital, the Independent Children’s Lawyer, his medical practitioners, his school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of [Lincoln’s] parents’ lawyers, and any other fact or matter that may identify [Lincoln] 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 numbers and lawyers’ names.

   3.That no personal shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.

   4.That otherwise all existing applications shall be dismissed, the case removed from the list of cases awaiting finalisation, and the appointment of the Independent Children’s Lawyer shall be discharged.

   In the alternative

   1.That [THE MOTHER] and [THE FATHER] as parents of [LINCOLN] may authorise the administration of Stage 2 treatment for the condition of childhood gender identity disorder under s 67ZC of the Family Law Act on and from a date to be determined by the treating medical team of [LINCOLN].

   2.That the full name of [Lincoln], his family members, his hospital, the Independent Children’s Lawyer, his medical practitioners, his school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of [Lincoln’s] parents’ lawyers, and any other fact or matter that may identify [Lincoln] 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 numbers and lawyers’ names.

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

   4.That otherwise all existing applications shall be dismissed, the case removed from the list of cases awaiting finalisation, and the appointment of the Independent Children’s Lawyer shall be discharged.

   Having regard to the sensitivity of the application, I ordered that the hearing take place in camera.

1. The Secretary of the relevant Government Department was a respondent to the proceedings but elected to file no evidentiary material and offered no opposition to the parents’ application.  On 18 April 2016, with the consent of the parents and the Independent Children’s Lawyer (“the ICL”) I granted leave to the respondent to withdraw from the proceedings.

2. The ICL supported the position of the parents, which is that the evidence justifies a finding that Lincoln has “Gillick” competency and thus is able to consent for himself to Stage 2 treatment.  This phase refers to a decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Service [1986] AC 112 (“Gillick”).

3. In Gillick, 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 ... 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 parents’ consent.

4. In Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) the High Court of Australia (Mason CJ, Dawson, Toohey and Gaudron JJ) said, in relation to the Gillick principle, 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 to him or her to understand fully what is proposed”.

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

Background

1. The father was born in 1968 and is currently 47 years of age.  The mother was born in 1967 and is presently aged 48 years.  They began to live together in 1998 and their only child (now known as Lincoln) was born in 2001.

1. The mother and father separated in 2007 and thereafter Lincoln lived with each parent on an approximately equal basis for about two years.  In 2009 the parents agreed that this arrangement was too disruptive for Lincoln and he then lived with the mother during the week and spent most weekends with the father.  It was well evident during the proceedings that the parents have a cooperative relationship in relation to their child.

2. During 2013 Lincoln began to refuse absolutely to wear female clothing, for example skirts, and insisted on increasingly short haircuts.  He was bullied at school and frequently displayed anger and unhappiness.  He began to self-harm and expressed suicidal thoughts.

3. In approximately September 2014 Lincoln told the mother that he felt that he had been born into “the wrong body” and that he considered himself a boy rather than a girl.  He told the mother that he had researched “gender dysphoria” on the internet and believed that he suffered from this condition.  He told the mother that he wanted help with his anxiety and depression.

4. The mother informed the father of these conversations between Lincoln and herself in about November 2014.  The father talked to Lincoln about gender dysphoria a few days later and formed the view that he was extremely knowledgeable about this condition.

5. In November 2014 Lincoln commenced transition to a male identity.  The mother formed the view that he was “was suffering profound depression, anxiety and suicidal thoughts as he fully faced the fact that his body felt completely wrong”.  The father also observed that Lincoln was suffering great distress “if addressed by his old name or treated in any way as female”.

6. In January 2015 the parents made contact with Headspace.  This organisation has the services of Dr K, a psychiatrist, and other staff with expertise in the area of gender dysphoria in young people.  Lincoln first saw Dr K in March 2015 and thereafter consulted with him on a regular basis until October 2015.  In about April 2015 Dr K prescribed antidepressants and medication to assist Lincoln with sleep and reduction of his nightmares.

7. In May 2015 Lincoln saw an endocrinologist, Dr M, for the first time.  Dr M prescribed puberty blockers and saw Lincoln for a follow-up appointment in November 2015.  Since October 2015 Lincoln has been in the care of Dr H, who is an endocrinologist in private practice.  The parents elected for Lincoln to commence appointments with Dr H in part because of concerns about delays in Stage 2 treatment in the public health system.

8. Dr K’s diagnosis of gender dysphoria was confirmed by

   
   

   Dr Z, a psychiatrist, and Dr C, a clinical psychologist, at X Hospital during 2015.  These practitioners are among the staff of X Hospital Gender Dysphoria Clinic.

1. In 2015 Lincoln refused to attend school and was enrolled in distance education.  In October 2015 Lincoln began to attend Y School.  In the words of the father, Y School “focusses on the psychological health of [children] and … families”.  He attended as a day student for the first three weeks but then entered full-time residential care.

2. When Lincoln entered Y School in October 2015, his care was transferred to the staff psychiatrist, Dr J.  Dr K interviewed Lincoln on 11 November 2015 for the purposes of conducting an assessment of his Gillick competence.

3. Lincoln attends Y School as a boy and is referred to by male pronouns in his school report.  His report noted that he has made “pleasing progress in all areas of school life”.  I was informed during the hearing on 18 April 2016 that Lincoln is in the process of integration into mainstream education at A High School.

4. In his report of 18 January 2016 Dr K made a diagnosis of “major depressive order in partial remission” in respect of Lincoln.  He opined that Lincoln is “currently less intensely depressed and irritable in mood, is regaining his motivation and interest in usual activities, beginning to feel of possible worth and is infrequently experiencing suicidal ideation.”

The evidence and witnesses

1. The applicants relied upon the following affidavits:

   1.        The Mother sworn on 22 December 2015;

   2.        The Father sworn on 22 December 2015;

   3.Dr H annexing report dated 23 November 2015 and sworn on 11 January 2016; and

   4.Dr K annexing report dated 18 January 2016 and sworn on 22 January 2016.

   None of these witnesses were required for cross-examination.  The ICL tendered a Presentation Day 2015 report from Lincoln’s Distance Education provider, together with Lincoln’s Semester 2 Report from Y School.

The proposed treatment and its effects

1. Dr K explained that Lincoln’s Stage 2 treatment for gender dysphoria will consist of the administration of exogenous testosterone, which is usually administered in the form of an intramuscular depot injection every three weeks.  A three-monthly depot injection is available once treatment reaches a maintenance phase.

1. Dr H explained that Stage 2 treatment “comprises physiological doses of the male hormone testosterone to bring about male secondary sexual characteristics.”  He indicated that regular attendance at a clinic and periodic blood tests are required to monitor progress.

2. Dr H set out in his report the disadvantages of ongoing use of puberty blockers as opposed to the commencement of Stage 2 treatment.  He stated:

   The general consensus regarding the timing of commencing of cross-sex hormones (phase 2 treatment) in transgender children and adolescents is at or following the age of sixteen years.  Prior to this time puberty blockers are used from the age of normal puberty to halt the feminisation process.  The rationale is that treatment with puberty blockers will not cause any long term permanent effects if an individual changes his/her mind and does not continue with the transition process.  In my experience, this is rarely the case.  One could logically argue that testosterone treatment should start at the time of normal puberty if the diagnosis is clear cut.  Gonadal hormone deprivation, as seen with puberty blockers, has a number of deleterious effects on health.  Subjects feel unwell when taking puberty blockers with symptoms of fatigue, reduced muscle strength and stamina, poor cognitive function and low mood.  Androgen blockade also has a negative effect on bone mass at a critical time in adolescence when the bone tissue is normally consolidating.  This will increase the risk of osteoporosis at an older age.  Individuals on puberty blockers are also put at further disadvantage by lagging behind their peers in pubertal development which creates its own psychological stress.

3. Dr K and Dr H agreed that Stage 2 treatment will reduce for Lincoln incongruence between his assigned gender and his experienced and expressed gender.  Their view was that treatment will assist him to live according to his preferred gender and reduce self-loathing of his body.

4. In terms of physical effects, Dr K and Dr H agreed that Stage 2 treatment will result in increased muscle strength, deepening of voice and growth of facial and bodily hair.  They agreed that there is a risk of acne and male pattern balding.  Dr K and Dr H also agreed that Stage 2 treatment carries risk of renal and hepatic dysfunction and hypertension.

5. Dr K held real concerns as to the psychological implications for Lincoln if he is unable to undertake Stage 2 treatment.  He noted that, in such circumstances, Lincoln would need to continue in his present physiological state until he reaches legal majority.  He opined that:

   The likely psychological effect of not carrying out this procedure in the short-term is prolongation of [Lincoln’s] dysphoric state with attendant risks of worsened depression and recurring deliberate self-harm, especially as the social and academic stresses inherent in proceeding with secondary school increase.  Emotionally, [Lincoln] will feel invalidated by society and his essential personhood will be effectively negated.  Socially it will pose an obstacle to [Lincoln’s] ability to pass as a male amongst his new peers in his tertiary studies.  He may find it very difficult to form friendships and relationship due to inner conflicts, body dysmorphia and self-loathing.  He is very likely to underachieve academically, isolate himself socially and become extremely angry and self-destructive.

6. Dr H expressed concern as to a risk that an individual who is refused Stage 2 treatment may resort to illicit drugs, for example from a gymnasium.  He noted that these substances are unregulated and carry no guarantees of efficacy or safety.  He considered that medically supervised hormone treatment “can be considered an exercise in harm minimisation.”

Lincoln’s Gillick competence

1. The mother described Lincoln as: “a deep thinker and is not swayed by other people’s opinions”.  She considered that he is willing to consult and ask for advice in appropriate circumstances.  She was of the view that he “never makes sudden dramatic decisions but decides over time after discussion, after thinking through the pros and cons.”

2. The mother considered that Lincoln lacks energy and suffers from social anxiety.  She deposed that Lincoln wears a chest binder in public, which inhibits his breathing capacity and causes tiredness.  She described Lincoln as creative rather than academic, with particular interests in song writing, guitar playing and making electronic music.  The father described Lincoln as sensitive, creative and gentle in nature, with a strong interest in music and drama.  The father opined that Lincoln “has always shown emotional maturity beyond his years”.

3. Both Dr K and Dr H specifically addressed the issue of Lincoln’s Gillick competence.  Dr K opined as follows:

   It is my opinion that [Lincoln] is able to comprehend and retain both existing and new information regarding the proposed treatment.  He demonstrates the capacity to understand, integrate and utilise information regarding the treatment that he finds by his own research and that I provide for him, as well as the capacity to modify this knowledge in the light of new information arising in our discussions.

4. Dr K reported that Lincoln was able to provide to him, in terms appropriate to his level of maturity and education, “a full explanation of the nature of the treatment”.  Lincoln described the advantages as growth of facial and body hair, increase in muscle mass and decrease in body fat, deepening of his voice, increased energy and a probable increase in sex drive.  He told Dr K that puberty blocking treatment has resulted in a weight gain of ten kilograms, hot flushes and tiredness and that he looks forward to an end to these side effects.

5. Dr K reported further that Lincoln was able to describe the disadvantages of Stage 2 treatment.  Lincoln referred to increased risk of diabetes, elevated cholesterol level and risk of heart attacks and strokes.  He referred to the possibility of acne, male pattern baldness and weight gain and an increased level of red blood cells.

1. It was Dr K’s view that Lincoln understands that the treatment will not address all of his psychological and social difficulties.  Dr K opined that Lincoln accepts the necessity of ongoing role of psychiatric psychological and other mental health care in addressing these problems.

2. For these reasons Dr K concluded as follows:

   I therefore conclude that [Lincoln] is competent to the Gillick standard to provide his consent to the administration of testosterone for the treatment of gender dysphoria.

3. Dr H also concluded that Lincoln “is able to comprehend the nature of the treatment such that he is able to provide informed consent according to the Gillick standard.”  He concluded that Lincoln is aware of the potential benefits and negative effects of the treatment, including implications for fertility.  Dr H concluded that Lincoln is aware that some effects of the treatment, for example voice deepening and scalp hair loss, are permanent even if there is a discontinuation of the therapy.

Conclusion and findings

1. I accept the unchallenged evidence of the parents and the expert witnesses to the effect that Lincoln has sufficient intellectual capacity and understanding to appreciate fully the information pertaining to a decision to embark upon Stage 2 treatment for gender dysphoria.  I accept the unchallenged evidence of Dr K and Dr H that Lincoln was able to inform them of the advantages and disadvantages of the proposed process and to balance those considerations in the process of arriving at his decision to embark upon Stage 2 treatment.  I find that Lincoln is competent in law to give a valid consent to Stage 2 treatment for gender dysphoria.

2. The Initiating Application of the parents filed on 28 January 2016 sought a declaration that Lincoln is competent to consent to Stage 2 treatment.  I was not informed of the suggested jurisdictional basis for such a declaration and I doubt that there exists such a power.  I note that Outline of Case filed on behalf of the parents sought a finding, rather than a declaration, of Gillick competence.  In my view, that approach is correct and will be the outcome of the proceedings.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 22 April 2016.

Associate: 

Date:  22 April 2016