Re Martin
[2015] FamCA 1189
•23 December 2015
FAMILY COURT OF AUSTRALIA
| RE: MARTIN | [2015] FamCA 1189 |
| FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Gender dysphoria – Declaration that child is Gillick competent to consent and make his own decision about stage two treatment. |
| Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Re: Jamie (2013) FLC ¶93-547; [2013] FamCAFC 110 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 |
| APPLICANTS: | The Father and the Mother |
FILE NUMBER: By Court Order File Number is suppressed
| DATE DELIVERED: | 23 December 2015 |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 23 December 2015 |
REPRESENTATION
By Court Order the names of counsel and solicitors have been suppressed
Orders
«FCA_LD221»IT IS DECLARED
That the child is Gillick competent and able to consent to testosterone hormone therapy treatment or any other complementary treatment.
IT IS DIRECTED
That the name of the child and any non-expert witness in this matter not be published.
The application filed 21 December 2015 be otherwise dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Re: Martin.
| FAMILY COURT OF AUSTRALIA |
FILE NUMBER: By Court Order file number is dismissed
| RE: Martin |
BETWEEN:
Applicants
The Father and the Mother
REASONS FOR JUDGMENT
Introduction
The parents of a child whose name I will not reveal seek a declaration that their son (for the child identifies as male) is competent to consent to stage two cross-sex hormone treatment for Gender Dysphoria.
The application is made jointly by the child’s parents and supported by the child’s treating clinicians from X Hospital. This is an urgent but non-controversial application.
I granted the parents’ application on 23 December 2015 and said that I would deliver my reasons subsequently. These are those reasons.
The application
The application was filed on 21 December 2015 but not sought to be proceeded with on that day. Instead it was allocated the earliest possible return date thereafter.
The applicants abandoned paragraph 6 of the order sought. That was that the treatment be administered to the child. That is understandable given that a declaration that the child is competent to consent to the treatment is all that is called for.
Both parents attended Court. The child did not attend.
The application is supported by the following evidence:-
a)Affidavit of Dr F, paediatrician and adolescent medicine practitioner, sworn 24 September 2015;
b)Affidavit of Professor P, consultant child and adolescent child psychiatrist, sworn 18 December 2015 which has annexed to it the same report (dated 10 October 2015) as was annexed to Professor P’s affidavit sworn 13 November 2015 a copy of which is on the court file;
c)The affidavit of the father sworn 11 October 2015;
d)The affidavit of the mother sworn on 7 October 2015.
The evidence is not challenged. It is well reasoned and internally consistent. I accept the evidence.
Notably, the expert reports were published in September and October 2015 and the parents’ evidence was sworn to in October 2015. It is not clear to me why it took until 21 December 2015 for the application to be filed with the court as an “urgent” application. The practitioner for the parents assures me that nothing has transpired which renders the evidence stale and I will, in any event, require that these reasons be sent to the Hospital well ahead of the child’s proposed treatment which is now able to be to commence in mid-January 2016.
The parents have been represented by a firm of solicitors on a pro bono basis. I was informed that Dr F and Professor P each provided their expert evidence free of charge to the parents and that the Hospital has not charged for their services.
The fact that the parents have not paid for legal representation or expert evidence reduces the burden on the family in economic terms. However, I recognise the significant emotional toll associated in instituting and participating in any court proceeding not the least part of which is uncertainty around whether there will be a determinative outcome on the day the matter is first listed or if the relief will be granted at all. This is not a burden solely for the parents. It falls to a very great degree on the child and it, doubtless, has been a source of anxiety for him which he could well have done without.
I also recognise the indirect cost associated with this application and borne by the Hospital through the time and effort expended by Dr F and Professor P in providing evidence as requested. Decisions of this nature can be, and are, made in a timely manner within the Hospital scaffolded by ethicists and peer review without the clinicians being required to produce the additional material which is in evidence before me.
The facts
The child is 16 years old and the only child of the mother and the father. He lives with his mother, stepfather and younger sibling in a rural region. He completed Year 10 in 2015 in an accelerated learning program
The mother is 44 years old and not employed outside the home. She has re-partnered and, whilst there is no direct evidence from the child’s stepfather, the paediatrician, Dr F, refers to the stepfather as supportive of and as having consented to the proposed treatment. The father is 48 years old and works as a labourer. The parents commenced cohabitation in 1993 and married in 1998. They separated in 2003 when the child was three years old. The parents are not divorced. The only other document on the court file is the parents’ joint application for final parenting and financial orders which was granted on 11 December 2003. Consistently with the final parenting order, the child has continued to live with the mother but regularly spends time and has maintained a meaningful relationship with the father.
The mother deposes to the child’s early interests being stereotypically male orientated, playing with dinosaurs, enjoying games played by boys and pursuing karate and soccer over dance and gymnastics. In Year 6 the child was the only female student to wear pants. At the age of 12 years the child “became introverted, a recluse, depressed and dark”. In mid-2014 the child told the mother that he was born a girl but felt that he was a boy. His moods were labile. Following a period of emotional dysregulation, the mother discovered that the child had been browsing the internet on the home computer about “ways to commit suicide”.
The mother deposes:-
13.I sought weekly counselling for [the child] from February 2012 until July 2014, when I was called to the counsellor’s office. I was told ‘[the child] has the feeling of suffocating inside a body she does not associate with.’ The counsellor advised the situation with him was deteriorating and [the child] was contemplating suicide, ‘cutting’ himself to relieve the pain he felt.
14.I took [the child] to our family doctor and we were referred immediately to the … CAT Team. [The child] was assessed by a psychiatric registrar there and we were then referred to the [X] Hospital Gender Dysphoria [Service] for further assessment.
15.We have attended the [X] Hospital … Gender Dysphoria [Service] for the past 14 months and [the child] has been diagnosed with Gender Dysphoria, internationally medically diagnosed Gender Dysphoria. [The child] was born a boy, however through no fault of his own, physically formed in the skin of a girl.
16.As for [the child], everything about going through puberty when your body does not match your being is a betrayal. He has the feeling of disgust at the sight of his female anatomy when showering. Getting his period was the final straw on the path to contemplating suicide. It saddens me that he has these thoughts every single day, although [the child] is now taking medication to stop menstruation.
17.[The child] has to ‘bind’ his breasts every day, so tight that it causes pain and shortness of breath, just so he can hopefully fit in to what society sees as ‘normal’. He does this so people can see him for him and not the female physical form.
18.With the empathy of Safe Schools Coalition, [the child] has the cooperation and support of his family, friends and secondary college. [The child] is now recognised on the role as male to teachers, support staff and peers. He has also cut his hair and dresses as boys do. I now see a little smile as he gets closer to being allowed to be his ‘true self’
19.We are now ready for the hormone replacement therapy, however due to [the child’s] age, this stage is now a legal matter, requiring us to seek authorisation from the Family Court.
20.Our family unit is suffering. When I say goodbye to him every day, I sit hoping he comes home from school. Every day I tread water and counsel his depression, hoping that he can hang on.
21.Although [the child’s] father and I are separated, [the child] regularly spends time with him and he is supportive of [the child] undergoing hormone therapy in the form of testosterone treatment.
The father deposes that he noticed a positive change in the child after the child started the counselling at the X Hospital Gender Dysphoria Service and that:-
12.[…] [The child] was able to express his true feelings and emotions and this created a glimpse of happiness that I as [the child’s] parent was extremely happy to see in him. This unfortunately would fade between visits to counselling sessions.
13.Since [the child] has had the courage to embrace who he really is he has been able to begin the school year in 2015 as the person he is, and that is a male child. The change in [the child’s] outlook appeared to me to be a little more confident.
14.Seeing [the child] confident in his true identity as a male means the world to me. The most important thing for me is for [the child] to live his life happy, fulfilled and without any limitations.
15.[The mother] has been taking [the child] to the [X] Hospital …Gender Dysphoria [Service] and I understand that for [the child] to undergo stage 2 testosterone hormone replacement therapy, authorisation from the Family Court is needed. I consent to [the child] receiving testosterone hormone replacement therapy and request that this Honourable Court authorises this treatment.”
The child first consulted Professor P in November 2014 for a mental health evaluation and assessment of the child’s experience of gender. Professor P’s report is dated 10 October 2015. He deposes to the child’s history and presentation as follows:-
Mental health:
Throughout his childhood [the child] appeared happy, intelligent and a cooperative child, who appeared to enjoy school and his friends. With the development of puberty, however, he became more withdrawn and depressed. He has experienced significant periods of profoundly depressed mood, and feeling that life was not worth living. He said ‘if I can’t be a boy my life is not worth living’. In the year leading up to his attendance at the [X Hospital] Gender Service, [the child] had periods of increasing distress and despair, relieved at times by self-harm and cutting his skin. He said it felt like living a double life because he had to appear to other people to be unhappy, yet within he felt very sad and despairing. [The child] has consistently tried to avoid causing distress to his family and friends, at the expense of his own mental health.
[The child] experience (sic) significant sleep difficulties, and problems concentrating at school, consistent with the experience of a major depression.
[The child] has commence (sic) treatment with escitalopram 10 mg, an antidepressant, prescribed through his family doctor. He will receive ongoing support from headspace youth services, … through this transitional period.
At the beginning of 2014 he revealed to his mother that he felt he was a boy. Since then his mood has improved and he has been able to be very comfortable in his transitioned identity as a boy.
[The child] is a very intelligent young person, who has been achieving high “A” grades in many subjects at school, with a special interest in English and literature, and would like to become a game (sic) or programmer. He has had no misuse of alcohol or cigarettes.
There is no evidence of any major mental illness for [the child]; he does not experience any hallucinatory or delusional phenomena and has not had any psychotic experiences.
Gender:
[The child] has describes (sic) experiencing distress about his female body since he can first remember. As a very young child he asked why was he born a girl, and expressed a desire to have a penis. He never wanted ‘girly stuff’, avoiding the waring (sic) of dresses, preferring boys’ type clothing. He was always seen as a tomboy to others.
His games and activities were always very masculine, he preferred to associate with boys and was an enthusiastic participant in the sport called [a form of cycling]. He was distressed when girls and boys were separated into different groups, and he was unable to participate with boys. He gave the sport away. His other sports were very masculine as football, soccer and karate.
Rather than use the girls (sic) toilets at school, he would not go to the toilet at all during school hours.
[The child] has been extremely dysphoric about his body. He finds the presence of his breasts extremely distressing and seeks chest surgery, as soon as he is able. He binds his chest in order to minimise their external appearance. He finds the presence of his female reproductive organs is extremely distressing. He would like to be more muscular and masculine looking.
[The child] has met with [Ms G], speech pathologist, to explore ways of masculinising his voice.
[The child] enjoys good relationships with his peers, but has not yet developed strong sexual attraction to other young people. He feels he is likely to develop a romantic relationship with a boy as he is older and more confident in himself socially.
Overall, [the child] has a strong persistent and enduring experience of himself as a boy at his core, he regularly is acknowledged as a boy by his peers, family and the broader community, and he describes strong and persistent stereotypical feelings and reactions of a boy. He tries to masculinise his body and voice as best he can, and would like chest surgery as early as possible.
Mental Health Second Opinion:
[The child] was seen by Dr [S], consultant child and adolescent psychiatrist in February 2015 for a second opinion regarding an understanding of [the child’s] gender identity. Dr [S] confirmed that [the child] meets the criteria for diagnosis of gender dysphoria of adolescents, with his persistent identification as male and his rejection of his female anatomy and physiology.
The child has been a patient of Dr F since mid-2015 and, up until September 2015, she had seen him for five consultations. Dr F supports Professor P’s diagnosis and has agreed to treat the child with testosterone to masculine his body. Dr F’s report is dated 1 September 2015.
The law
In Re: Jamie (2013) FLC ¶93-547; [2013] FamCAFC 110, the Full Court swept aside legal impediments which then confronted young persons suffering Childhood Gender Identity Disorder (also known as Gender Dysphoria in Adolescents and Adults). The Full Court recognised and accepted the psychological and psychiatric origin of the condition and that treatment was now available which was accepted by the medical community as appropriate.
The Full Court also accepted the evidence in that case to the effect that, absent treatment, the young person would suffer irreparable psychological harm. On that basis, and because the procedure at the first stage is reversible, the Full Court found that stage one treatment was not in the class of procedures which required any authorisation from the court so long as there was no controversy between child, the parents and the treating medical practitioners.
The treatment for this condition is usually administered in two stages, the first stage being reversible and the second stage having much more permanent consequences for the young person. The second stage is usually (but not always) prescribed when the young person reaches an age of approximately 16 years. The changes brought about for the young person involve the development of breasts in male to female and the development of male characteristics such a growth of facial and other body hair, masculinisation in relation to voice and appearance and a suppression of the development of female organs and characteristics in female to male. This case is about stage two treatment.
In Re Jamie the Full Court opined that because of the irreversible nature of the second stage of treatment the young person must either be competent to consent to the procedure (as identified in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick’s case”) and accepted into the law of Australia by the High Court in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 ("Marion's case")) or if such competence is lacking, the court rather than the parents, should give consent.
Re Jamie, is authority for the proposition that the court should declare whether the young person has the requisite intelligence and appreciation of the procedure contemplated to be able to give informed consent or, in other words, whether the child is Gillick competent. Bryant CJ (with whom the other members of the Full Court agreed on this point) said at [137]
137. With some reluctance I conclude that the nature of the treatment at stage two requires that the court determine Gillick competence. In Marion'scase, the majority held that court authorisation was required first because of the significant risk of making the wrong decision as to a child's capacity to consent, and secondly because the consequences of a wrong decision are particularly grave.
Her Honour went on to say at [138] and [139]
138. It seems harsh to require parents to be subject to the expense of making application to the court with the attendant expense, stress and possible delay when the doctors and parents are in agreement but I consider myself to be bound by what the High Court said in Marion's case.
139. That application however would only need to address the question of Gillick competence and once established the court would have no further role. The material in support of such an application, whilst needing to address the proposed treatment and its effects, and the child's capacity to make an informed decision, would not need to be as extensive as an application for the court to authorise treatment and I can see no reason why any other party need be involved, absent some controversy. It would be an issue of fact to be determined by the court on the material presented.
Thus the Chief Justice made clear that the application should, in the absence of a dispute between the child, the parents and the doctors, proceed on the basis of un-contradicted evidence which is not susceptible to challenge. This application has proceeded as the Chief Justice envisaged
Most respectfully, in my opinion, the reliance by our Full Court on the passage in Marion’s case referred to in [137] of Re Jamie incorrectly interprets the discussion and ultimate findings of the High Court in Marion’s case.
Marion’s case concerned a 14 year old girl who was intellectual disabled and suffered from severe deafness and epilepsy, had an ataxic gait and behavioural problems. Her parents proposed that she undergo two surgical procedures which, if carried out, would prevent her menstruating and being able to bear children. These procedures were together referred to as “sterilisation”. It was common ground that Marion’s intellectual disability and minority rendered her unable to consent to sterilisation. It was also common ground that the sterilisation was not to be carried out to treat some malfunction or disease. To the extent that the High Court adopted the expressions "therapeutic" and "non-therapeutic" to draw a distinction which it considered important, it was satisfied that the proposed sterilisation of Marion was a non-therapeutic intervention involving invasive, irreversible and major surgery to remove the her healthy reproductive organs.
Two of the major issues in Marion’s case were:-
·whether a child, intellectually impaired or not, is capable in law or in fact of consenting to medical treatment on his or her own behalf, and
·if not the child lacked the capacity to consent, by reason of disability or minority, whether sterilisation is outside the scope of a parent to consent to on behalf of his or her child –
and the High Court gave much greater emphasis to the second issue.
In relation to the capacity of a child to consent, the High Court[1] regarded Gillick’s case as persuasive authority and referred it, with apparent approval, as follows:-
19. […]The proposition endorsed by the majority in that case was that parental power to consent to medical treatment on behalf of a child diminishes gradually as the child's capacities and maturity grow and that this rate of development depends on the individual child. Lord Scarman said (29) ibid., at pp 183-184:
"Parental rights ... do not wholly disappear until the age of majority. ... But the common law has never treated such rights as sovereign or beyond review and control. Nor has our law ever treated the child as other than a person with capacities and rights recognised by law. The principle of the law ... is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child."
A minor is, according to this 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" (30) ibid., at p 189, and see pp 169, 194-195.
20. This approach, though lacking the certainty of a fixed age rule, accords with experience and with psychology (31)The psychological model developed by Piaget (Piaget and Inhelder, The Psychology of the Child, (1969)), one of the leading theorists in this area, suggests that the capacity to make an intelligent choice, involving the ability to consider different options and their consequences, generally appears in a child somewhere between the ages of 11 and 14. But again, even this is a generalisation. There is no guarantee that any particular child, at 14, is capable of giving informed consent nor that any particular ten year old cannot: see Morgan, "Controlling Minors' Fertility", [1986] MonashULawRw 10; (1986) 12 Monash University Law Review 161...
[1] [19]
There was significant discussion around the capacity of intellectually disabled children to consent. Mason CJ., Dawson, Toohey and Guadron JJ commented on the need to be vigilant against underestimating a person’s abilities “particularly with respect to sexuality and sexual identity […]. Although complex for everyone, these matters are especially complex for disabled person, sometimes because of the ignorance and misconceptions on the part of those on whose care disabled person find themselves dependent.”[2] Of course, the present case is based on the child’s need to live his affirmed sex as a male and, for that purpose, to remove the real and serious threat that feminisation of his body poses to his to the sexual identity and, through that, his mental health.
[2] [22]
With the greatest of respect, I perceive a difficulty with Re Jamie, in that the Full Court affirms that if a child is Gillick competent, the consent of the child is sufficient. However, it then proceeds to equate stage two treatment (which is a “therapeutic” procedure) with the “non-therapeutic” sterilisation of a child who could not consent to such irreversible treatment. The Full Court concludes, it says in reliance on the decision of the plurality in Marion’s case, that the question of the child’s capacity to consent to treatment (ie. Gillick competency) remains a question for the court. It reasons that this is necessary because stage two testosterone treatment is “irreversible medical treatment” and “there is a significant risk of the wrong decision being made as to the child’s capacity to consent to treatment and where the consequences of such a wrong decision are particularly grave ...”[3] However, my reading of Marion’s case is that the discussion of the significant risk of an incorrect assessment being made pertained to whether sterilisation was a special category of non-therapeutic surgical intervention which fell outside the scope of a parent to consent on behalf of a child who was unable to himself or herself to consent. It was not about the capacity of the child to understand fully what treatment is proposed and to make an intelligent choice and to consider other options and the consequences thereof. This is apparent from the reasons of the plurality in Marion’s case at [49] to [53] inclusive which commence:-
49. As a starting point, sterilisation requires invasive, irreversible and major surgery. But so do, for example, an appendectomy and some cosmetic surgery, both of which, in our opinion, come within the ordinary scope of a parent to consent to. However, other factors exist which have the combined effect of marking out the decision to authorise sterilisation as a special case. Court authorisation is required, first, because of the significant risk of making the wrong decision, either as to a child's present or future capacity to consent or about what are the best interests of a child who cannot consent, and secondly, because the consequences of a wrong decision are particularly grave.
[3] [186] per Finn J. and [137] per Bryant CJ and also [196] per Strickland J.
And which continue (references and footnotes omitted):-
50. The factors which contribute to the significant risk of a wrong decision being made are:
(i) The complexity of the question of consent. […] there is no
unproblematic view of what constitutes informed consent. […] The
fact that a child is disabled does not of itself mean that he or she cannot give informed consent or, indeed, make a meaningful refusal. And there is no reason to assume that those attempting to determine the capacity of an
intellectually disabled child, including doctors, may not be affected by commonly held misconceptions about the abilities of those with intellectual disabilities […] and note the striking results of unconscious race, class and gender bias on decisions to sterilise which are recorded […] There is no doubt that some sterilisation operations have been performed too readily
and that the capacity of a child to give consent (and, later, to care for a child) has been wrongly assessed both here and overseas, historically and at the present time […]
(ii) The medical profession very often plays a central role in the decision to sterilise as well as in the procedure itself. Indeed the question has been "medicalised" to a great degree […] We agree with Nicholson C.J. in Re Jane that, as with all professions, there are those who act with impropriety as well as those who act bona fide but within a limited frame of reference. And the situation with which they are concerned is one in which incorrect assessments may be made [..] The second concern is that the decision to sterilise, at least where it is to be carried out for contraceptive purposes, and especially now when technology and expertise make the procedure relatively safe, is not merely a medical issue. This is also reflected in the concern raised in several of the cases reviewed, that the consequences of sterilisation are not merely biological but also social and
psychological. The requirement of a court authorisation ensures a hearing from those experienced in different ways in the care of those with intellectual disability and from those with experience of the long term social and psychological effects of sterilisation.
(iii) The decision by a parent that an intellectually disabled child be sterilised may involve not only the interests of the child, but also the independent and possibly conflicting (though legitimate) interests of the parents and other family members […]There is no doubt that caring for
a seriously handicapped child adds a significant burden to the ordinarily demanding task of caring for children […]Subject to the overriding criterion of the child's welfare, the interests of other family members, particularly primary care-givers, are relevant to a court's decision whether to authorise sterilisation. However, court involvement ensures, in the case of conflict, that the child's interests prevail.
51. The gravity of the consequences of wrongly authorising a sterilisation flows both from the resulting inability to reproduce and from the fact of being acted upon contrary to one's wishes or best interests. The fact of violation is likely to have social and psychological implications concerning the person's sense of identity, social place and self-esteem. As the Court said in In re Grady, a decision to sterilise involves serious questions of a person's "social and biological identity". As with anyone, reactions to sterilisation vary among those with intellectual disabilities but it has been said […] that "sterilized mentally retarded persons tend to perceive sterilization as a symbol of reduced or degraded status". Another study found […] that:
"Existential anxieties commonly associated with mental
retardation are likely to be seriously reinforced by
coercive sterilization of those who have had no children.
Common sources of these anxieties include low self-esteem,
feelings of helplessness, and need to avoid failure,
loneliness, concern over body integrity and the threat of
death."
52. The far-reaching consequences of a general rule of law allowing guardians to consent to all kinds of medical treatment, as well as the consequences of a wrong decision in any particular case, are also relevant. As Nicholson C.J. pointed out in Re Jane in the passage quoted […] such a rule may be used to justify other procedures such as a clitoridectomy or the removal of a healthy organ for transplant to another child.
53. For the above reasons, which look to the risks involved in the decision, particularly in relation to the threshold question of competence and in relation to the consequences of a wrong assessment, our conclusion is that the decision to sterilise a minor in circumstances such as the present falls outside the ordinary scope of parental powers and therefore outside the scope of the powers, rights and duties of a guardian under s.63E(1) of the Family Law Act. This is not a case where sterilisation is an incidental result of surgery performed to cure a disease or correct some malfunction. Court authorisation in the present case is required. [..]
Most respectfully, the reliance on the passage in Marion’s case referred to in [137], [186] and [196] of Re Jamie contains a contradiction and inconsistency. On the one hand, the Full Court accepted that gender dysphoria in adolescents and adults is a recognised psychological or psychiatric condition for which there is a recognised regime of therapeutic treatment. On the other hand, the Full Court decided that there was a need for the court to authorise and consent to the treatment in the event of a finding that the young person lacks Gillick competency. As Marion’s case makes clear, and as the Full Court in Re Jamie found, the treatment of a disease (including a psychiatric condition) does not call for Court authorisation. Therefore the only question is whether the infant can give the requisite authority or should the parents be asked to consent. That question can comfortably be answered by the medical practitioners, whose evidence forms the basis of this application and who must be called upon to make such judgments on a daily basis when treating other conditions.
Finally, the procedure for assessing Gillick competency, as envisaged by the Full Court in Re Jamie at [139] and which now appears in our rules, is a procedure in which the court makes a declaration as “an issue of fact to be determined by the court on the material presented” and, absent any apparent controversy, without a contradictor. It is difficult to see, in reality, what the court will do other than to approve of the treatment explained and recommended to it by competent and qualified clinicians.
In this entirely uncontroversial case, I have difficulty in identifying how the interests of the child are well served by compelling his parents to make the instant application. In Re F (1990) 2 AC 1, which was referenced by the majority decision in Marion’s case at [39], it was considered that certain features which made the court’s involvement in approving a sterilisation ‘highly desirable”, included that the court’s decision “should serve to protect the doctor or doctors who perform the operation, and any others who may be concerned in it, from subsequent adverse criticisms or claims”. If I extend that feature to the decision about whether the child in this case is Gillick competent, any potential criticisms and claims, including those for malpractice and/or in negligence, will attach to the opinions expressed by the clinicians. The fact that a court subsequently makes a declaration based on that uncontested and uncontradicted body of opinion, is more likely to be an aggravating factor rather than an exculpatory consideration. However, there is a crucial difference between the non-therapeutic sterilisation of a child who cannot consent to the procedure and the case at hand which involves therapeutic testosterone treatment for a child who is actively seeking treatment the withholding of which will have deleterious physical and mental health consequences for the child.
In the event that treating clinicians are not ad idem or wholly supportive of the treatment sought by a child, such as the child in the present case, it seems to me that the appropriate course would be for the clinicians to express qualified support for the treatment with the qualifications being directed to the matters which they find to be of real concern. Further, they can withhold treatment until an appropriate decision can be obtained from the court.
It remains that the Full Court’s decision in Re Jamie is binding on me a single judge so I will follow it whilst making the observation that these issues can await another appeal to the Full Court or legislative intervention.
Discussion
It is apparent from the reports by Professor P and Dr F that they were requested by the solicitor for the applicants to address the matters set out in Rule 4.09 of the Family Law Rules 2004 (Cth). That rule specifies the evidence required to support an application for a Medical Procedure Application. A Medical Procedure Application is defined in the Dictionary to the Family Law Rules as an application seeking an order authorising a major medical procedure for the child which is not for the purpose of treating a “bodily malfunction or disease”. An example of a major medical procedure is specified in the Rules as a procedure for sterilising or removing a child’s reproductive organs. In Re Jamie, Finn J stated [176] “there is nothing in their Honours” observations [in Marion’s case] which can, in my view, be taken as limiting their observations to only a physical, as opposed to a psychiatric or psychological malfunction or disease.”
Notwithstanding that the current application is not a Medical Procedure Application, I will summarise the evidence that the experts were requested to, and did, provide and do so out of respect for their mutual effort and also because it contains some of the evidence upon which I relied is concluding that the child in this case is, indeed, Gillick competent. The child meets the diagnostic criteria for gender dysphoria (DSM-V 302.85) with an affirmed male gender identity. The diagnosis was made by two child and adolescent psychiatrists within the Hospital one of whom is Professor P who describes the child as “definitely” meeting the relevant criteria. He is also of the view that the child meets the criteria for a diagnosis of gender identity disorder of adolescence (F64.1).
Gender dysphoria refers to the distress which may accompany the incongruence between one’s experienced or expressed gender (here, male gender) and the gender which one was assigned at birth or natal gender (here, female gender). Professor P explains that “gender dysphoria” is not now generally seen as a mental illness although some of the consequences of a young person who does not feel that they are living in the appropriate body, can produce profound emotional distress and social and relationship difficulties. In this case, the child is distressed that, although assigned female at birth, he experiences himself to be male and, as a result, he experiences significant distress about having a female body instead of a male body. The child seeks to be rid of the feminine aspects of his body, in particular his breasts, and wants to develop facial and body hair, a deeper voice and a male body muscular habitus. The child wants people to treat him as a boy consistently with how he experiences his inner, core identity.
The proposed treatment is to administer testosterone on a program and in a form which is individualised for the child. This may include capsules to be taken orally, intramuscular injections, pellets inserted beneath the skin and testosterone patches and gels which are applied to the skin. It is likely that the child will be given a low shorter acting doses to begin with and, if he tolerates those well, the doses will be increased and administered in a longer acting form.
The treatment will result in a masculinisation of the child’s body with the development of male secondary sex characteristics which the clinicians say is appropriate and will lead to an improvement in the child’s social experience. He will become more confident moving amongst his peers in day to day activities such as at school and in other social situations. The child will feel much more confident in the personal and potential sexual relationships. Professor P reports the child says that he increasingly distressed at being aware of the difference between his own physical development and that of his peers, particularly as his friends are boys. As the child’s body has become more feminised, the child has withdrawn from most of his sporting and social activities. After treatment, however, the child will feel much more competent and confident in social situations and, Professor P believes, will be able to develop a more confident interest in his own sexuality and be able to explore interpersonal relationships. Psychologically, the treatment will result in a more masculine emotional experience for the child together with the likely stimulation of more assertiveness and sexual desire. Professor P opines that the child will experience profound relief at the masculinisation of his body.
If the treatment is withheld, the child’s body will continue to develop into that of a post-pubertal young woman with further breast development and other feminine changes. Socially, the child will remain increasingly isolated, anxious and distressed within himself and in the company of his peers. Professor P expresses the view that the child is likely to make himself even less available to participate in ordinary activities with his friends and same aged peers and will be unable to develop romantic interests, Dr F predicts that without the proposed treatment, the child’s “emotional state would likely deteriorate and thee would be an increased risk of self-harm and/or attempted suicide. She refers to the emotional impact of the child’s continued development of female body characteristics as “intolerable”. Consistently with Dr F’s opinion, Professor P predicts that if treatment is withheld:-
…[the child] will remain significantly distressed, anxious and depressed. He feels that not being able to access testosterone treatment which he feels is appropriate hormone treatment for his body, he is being deprived of the possibility of achieving his own developmentally appropriate personal goals. As he has become more socially isolated he has at times become very depressed and subject to feelings of intense worthlessness and hopelessness.. I believe these feelings will increase and intensify significantly without access to cross-gender hormone treatment. At times [the child] has felt that life is not worthwhile and he has been suicidal, and at times has been at significant risk of suicide. Self-harm is likely to persist without access to masculinisation of his body. Although he has managed his academic, social and psychological life well until recently, [the child] says he finds himself crying and describes very disturbed sleep and at times, poor concentration on schoolwork. I believe it is likely that such feelings (sic) hopelessness and feelings of low self-worth will continue to occur in an ongoing way without access to testosterone treatment.
The clinicians have discussed the risks of the treatment with the child and his parents and stepfather. In addition to Dr F, the child has had a consultation with Dr L, Gynaecology Fellow from the Hospital. Dr F reports that the child acknowledges the known risks and has assured her that he will act responsibly by seeking medical care if he notices adverse side effects, in the long term as well as in the medium or short term. The reversible and irreversible physical changes that the treatment will produce have been discussed with the child as has “the possibility of him experiencing regret for his decisions in the future.” As to the unknown risks associated with treatment, the paediatrician Dr F states that:-
The effects of this treatment on the child’s ovaries and other female organs over time is not well understood and the danger of inducing abnormalities such as ovarian cancer has not been extensively studied. Many female to male transgender people later have their ovaries and uterus removed by surgery, which eliminates any such risk. Others, however, may decide to retain their ovaries and uterus and it then becomes very important for them to be followed by a specialist who will monitor the ovaries and other female organs and screen for any changes that would require treatment.
There may be other effects that are currently not anticipated. The long term outcome is still being studied.
If [the child] chooses to cease testosterone treatment in the future, some of the effects of testosterone will not be reversible (risk of regret).
There is no less invasive treatment which will allow the masculinisation of the child’s body. Dr F reports that in due course the child “would also like to have both breasts removed and a bilateral oophorectomy[4] but that procedure is no part of this application.
[4] The surgical removal of both ovaries together with both of the patient’s Fallopian tubes.
Both doctors agree that proposed stage two treatment with testosterone is necessary for the ongoing welfare of the child. Professor P opines that, without treatment, the adverse emotional impact suffered by the child to date will continue and that the child will be “at risk of increasing depression and suicidal ideation.” By reference to research and the experience of clinicians overseas, Professor P expresses the opinion that “facilitating the development of the physical characteristics of the young person’s affirmed gender is highly likely to reduce the risk of significant mental distress and depression.”
Both doctors consider that the child is capable of making an informed decisions regarding stage two testosterone treatment and that the child wishes to proceed with the treatment a soon as possible. As indicated, the child’s parents agree to the treatment being commenced as soon as possible. I was informed by the parents’ lawyer that treatment should be able to be commenced on or about 12 January 2016.
Conclusion
The overwhelming evidence of the parents and the doctors is the child has the requisite intelligence and understanding of the procedures involved to give his informed consent. Following the authority of Re Jamie, there is little more that the court can do than to declare the child Gillick competent.
I am satisfied that it is in the child’s best interests to make the declaration sought.
In advance of the publication of a wholly anonymised version of the reasons, I direct that a copy of these reasons be provided to the applicants through their lawyer and to Professor P and Dr F marked “Strictly in confidence”.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.
Associate:
Date: 5 January 2016
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