Re: Matthew

[2017] FamCA 74

FAMILY COURT OF AUSTRALIA

RE: MATTHEW [2017] FamCA 74

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Gender dysphoria in adolescents – Determination of whether the child is competent to consent to Stage 2 treatment for the administration of testosterone.

Family Law Act 1975 (Cth) s 67ZC

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

APPLICANTS: The Mother and the Father

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 15 February 2017

JUDGMENT OF: Rees J

HEARING DATE: 13 February 2017

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

IT IS DECLARED

1. That the child A, known as Matthew, who was born on … 2002, is competent to consent to the administration of testosterone for the purpose of treatment of Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) (“DSM-5”).

IT IS ORDERED

1. That the full name of Matthew, 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were initiated, the name of Matthew’s parents’ lawyers, and any other fact or matter that may identify Matthew, shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of a Judge, it being noted that each party shall be handed one full copy of these Orders with the relevant details included, to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.

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

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re Matthew has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order File Number is suppressed

The Mother and the Father

Applicants

REASONS FOR JUDGMENT

1. The Mother and the Father (“the applicants”) are the parents of Matthew who was born in 2002, then known as [female name] A. Matthew identifies as male and wishes to commence the administration of therapeutic testosterone for the purpose of treatment of gender dysphoria, also known as Stage 2 treatment. The applicants ask the Court to determine that Matthew is competent to authorise the surgery.

2. In the alternate, the applicants ask the Court to order that they can authorise the procedure.

3. An Independent Children's Lawyer (“ICL”) has been appointed for Matthew. There were no respondents in this matter.

4. The parties referred to guidelines published by the World Professional Association for Transgender Health, Standards of Care. Those guidelines set out the generally accepted stages of intervention for gender dysphoria as follows:

   1.   Fully reversible interventions. These involve the use of GnRH analogues to suppress oestrogen or testosterone production and consequently delay the physical changes of puberty. Alternative treatment options include progestins (mostly commonly medroxyprogesterone) or other medications (such as spironolactone) that decrease the effects of androgens secreted by the testicles of adolescents who are not receiving GnRH analogues. Continuous oral contraceptives (or depot medroxyprogesterone) may be used to supress menses.

   2.   Partially reversible interventions. These include hormone therapy to masculinise or feminize the body. Some hormone-induced changes may need reconstructive surgery to reverse the effect (e.g. gynaecomastia caused by oestrogens), while other changes are not reversible (e.g. deepening of the voice caused by testosterone).

   3.   Irreversible interventions. These are surgical procedures.

   A staged process is recommended to keep options open through the first two stages. Moving from one stage to another should not occur until there has been adequate time for adolescents and their parents to assimilate fully the effects of earlier interventions.

5. Matthew has not commenced Stage 2 treatment. His treating doctors recommend that the testosterone therapy start.

6. At the hearing, all parties submitted that the evidence established that Matthew was competent to consent to the proposed surgery.

7. The role of the Court is to determine whether Matthew is competent to consent to the proposed treatment in accordance with the established law. If Matthew is found to be competent, the Court does not approve or endorse the planned treatment. That decision is taken by Matthew and his parents.

THE LAW

1. The issue of the role of the Family Court of Australia in cases involving childhood gender identity disorders was definitively explored in the decision of Re Jamie (2013) FLC 93-547 (“Re Jamie”) by Bryant CJ, Finn and Strickland JJ. In separate judgments their Honours each determined that in cases where the proposed treatment is irreversible without surgical intervention, the issue for the Court is to determine whether the child is competent within the meaning of the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick competent”). Their Honours held unanimously that in the event that the Court finds that the child is Gillick competent, then the authority of the Court is not required to authorise the treatment.

2. At paragraph 140 of Bryant CJ’s judgment in Re Jamie, her Honour said:

   I summarise the decision that I have reached in relation to these matters:

   a)Stage one of the treatment of the medical condition known as childhood gender identity disorder is not a medical procedure or a treatment which falls within the class of cases described in Marion’s case which attract the jurisdiction of the Family Court of Australia under s 67ZC of the Act and require court authorisation.

   b)If there is a dispute about whether treatment should be provided (in respect of either stage one or stage two), and what form treatment should take, it is appropriate for this to be determined by the court under s 67ZC.

   c)In relation to stage two treatment, as it is presently described, court authorisation for parental consent will remain appropriate unless the child concerned is Gillick competent.

   d)If the child is Gillick competent, then the child can consent to the treatment and no court authorisation is required, absent any controversy.

   e)The question of whether a child is Gillick competent, even where the treating doctors and the parents agree, is a matter to be determined by the court.

   f)If there is a dispute between the parents, child and treating medical practitioners, or any of them, regarding the treatment and/or whether or not the child is Gillick competent, the court should make an assessment about whether to authorise stage two having regard to the best interests of the child as the paramount consideration. In making this assessment, the court should give significant weight to the views of the child in accordance with his or her age or maturity.

3. Finn J said, at paragraph 188:

   If the court was completely satisfied of the child’s capacity to consent to stage two treatment, it would be unnecessary for it to have to authorise the treatment. That could be left to the child. But if the court had any doubt about that capacity, then it would have to determine for itself the question of whether the stage two treatment should be authorised.

4. Strickland J said, at paragraphs 195 to 196:

   In relation to stage two treatment, I agree that the therapeutic benefits of the treatment need to be weighed against the risks involved and the consequences which arise out of the treatment being irreversible, but that given the nature of the changes that would result for the child that treatment should require court authorisation. This would not be the case though where the child is able to give consent to the proposed treatment.

   Whether the child is able to fully understand and give informed consent to stage two treatment, and thus court authorisation is not required, is a threshold issue that the court must decide. This is because of the requirement by the High Court majority in Marion’s case that it is for the court to authorise medical treatment that is irreversible where there is a significant risk of the wrong decision being made as to the child’s capacity to consent to the treatment, and where the consequences of such a wrong decision are particularly grave.

5. Absent any controversy about whether or not there is a dispute in relation to the proposed treatment, the issue therefore in relation to Matthew is whether or not he is Gillick competent to consent to the proposed surgery. If Matthew is determined to be Gillick competent, court authorisation for the proposed surgery is not required.

6. The ability of a child to make his or her own decision in respect of medical treatment depends upon that child having sufficient understanding and intelligence to make the decision. It is a question of fact in each individual case and falls to be determined on the evidence of the individual capacity of the particular child. 

THE EVIDENCE

1. Matthew’s mother swore an affidavit on 18 November 2016. She deposed that Matthew is Year 8 at high school and that he has maintained a high standard of achievement in both academic and extra-curricular activities. When Matthew was in primary school he participated in debating and was the Vice-Captain of his school in Year 6. In Year 6, Matthew was in the top 20^th percentile of children of his age in New South Wales and received awards for numeracy and literacy. Matthew came second overall in his class in Year 6. At high school Matthew continued to do well academically and received a young science achievement award in Year 7. Matthew’s future academic plans include going to university.

2. Matthew’s mother described him as “a good decision maker” who has done well with school related decisions. She deposed:

   He is competent and clearly knows his identity. For example, [Matthew] makes decisions after researching and collating evidence. He weighs the pros and cons and respective application each category brings.

   [Matthew] has a mature outlook for his age and he uses all available evidence to make decisions about what is right for him.

3. Matthew’s mother deposed that Matthew had told her that he had known since he was about six years of age that he was transgender but that he wanted to be 110 per cent sure before he made a decision.

4. Matthew’s father swore an affidavit on 18 November 2016. He deposed that Matthew has a mature outlook for his age.

5. Dr D is Matthew’s consultant psychiatrist. Dr D relied on history obtained from Matthew and his parents. He reviewed Matthew three times and has also spoken to his general practitioner and his paediatrician. Dr D has made a diagnosis of gender dysphoria.

6. Dr D annexed a report to his affidavit dated 12 December 2016. He reported:

   I have assessed [Matthew’s] capacity in regard to commencing testosterone treatment and feel he is competent to the Gillick standard to provide consent. [Matthew’s] psychiatric symptoms, whilst at times distressing, are not severe enough to affect his ability to retain existing and new information. There is no evidence of delirium or dementia which may also confound his capacity.

   [Matthew] is able to outline in sufficient detail what testosterone therapy entails, which is appropriate to his level of maturity and education. He can quite clearly describe the advantages he sees to the treatment as well as the disadvantages. He is able to weigh these up and arrive at an informed decision regarding whether he should proceed with treatment. He understands that there may be unforeseen consequences or side effects of undergoing treatment. [Matthew] is aware that the procedure will not ameliorate all his psychological and social difficulties and to the greatest extent possible I believe he is free from pressure or pain that impairs his judgement.

7. Dr M is Matthew’s treating endocrinologist. She commenced discussions with Matthew in August 2016. After it was confirmed that Matthew met the DSM-5 criteria for gender dysphoria, Dr M supervised pubertal suppression therapy for Matthew.

8. Whilst Dr M acknowledged that an assessment of Matthew’s mental state is not within her expertise, she provided evidence about her discussions with Matthew.

9. Dr M annexed her report of 1 November 2016 to her affidavit in which she reported:

   [Matthew] has continued to firmly express the view that he wishes to continue living in a male role and pursue phase 2 therapy with androgen therapy. I am of the opinion that the gender dysphoria remains firmly entrenched and that [Matthew] has sufficient knowledge and understanding of the effects of phase 2 therapy to proceed with that. He understands that many aspects of androgen therapy and irreversible or only partially reversible. I have given him the opportunity to raise any questions or express any doubts about his intended course and he has said that he has none. He also understands that he could stop pubertal suppression at any time and not proceed with androgen therapy and return to a female gender role; he has firmly expressed that he does not wish to do that.

10. Dr M reported “… from an endocrinology perspective I feel that [Matthew] is sufficiently informed and capable of making this decision and I see no reason for phase 2 therapy not to proceed.”

11. Having regard to all of the evidence I am satisfied that Matthew is competent to consent to and authorise the treatment which has been recommended.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 15 February 2017.

Associate: 

Date:  15/2/2017