Re: Mitchell
[2017] FamCA 185
•27 March 2017
FAMILY COURT OF AUSTRALIA
| RE: MITCHELL | [2017] FamCA 185 |
| FAMILY LAW – CHILDREN – SPECIAL MEDICAL PROCEDURE – Where the applicants are the parents of a child diagnosed with Gender Dysphoria – where the child wants to commence stage two treatment for Gender Dysphoria – determination of whether the child in Gillick competent - where the Court is satisfied that the child is competent to fully understand the nature and consequences of the proposed treatment and to make his own decisions with respect to that treatment - where the applicants have a right of reinstatement for a declaration of Gillick competency upon the decision of the Full Court in Re Kelvin [2017] FamCA 78. |
Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth)
| Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Re Daniel [2017] FamCA 155 Re Jamie [2013] FamCAFC 110; (2013) 50 Fam LR 369 Re Kelvin [2017] FamCA 78 |
Secretary, Department of Health & Community Services (NT) v JWV and SMV (1992) 175 CLR 218
| 1st APPLICANT: | The Mother |
| 2nd APPLICANT: | The Father |
FILE NUMBER: By Court Order File Number is suppressed
| DATE DELIVERED: | 27 March 2017 |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 15 March 2017 |
REPRESENTATION
By Court Order the names of Counsel and Solicitors have been suppressed
Orders
That the name of the child, Mitchell born ... 1999, Mitchell’s family members and their occupations, the hospital, Mitchell’s medical practitioners, Mitchell’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of the applicant’s lawyer and any other fact or matter that may identify Mitchell shall not be published in any way, and only anonymised Reasons for Judgment and orders (with coversheets excluding the registry, file number and lawyers names and details as well as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 for provision to the treating medical practitioners and to enable their execution, and one coversheet of Reasons for Judgment that includes the file number and the lawyers’ names.
That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.
That the applicants be at liberty to provide a copy of the un-anonymised orders and the un-anonymised Reasons for Judgment to all persons involved with Mitchell’s treatment.
That upon the Court being satisfied that the child Mitchell born … 1999 is competent to consent to the medical treatment described in the Initiating Application filed 9 March 2017, the applicants’ Initiating Application filed 9 March 2017 be otherwise dismissed with a right of reinstatement upon the determination by the Full Court of the Case Stated in Re Kelvin [2017] FamCA 78 in the event that there are unresolved issues that require determination by a judge.
AND THE COURT NOTES
That the treatment described in the applicant’s Initiating Application filed 9 March 2017 is the following treatment for gender dysphoria:-
Stage two hormonal treatment with testosterone to masculinise his body.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Mitchell 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 and the Father |
Applicants
REASONS FOR JUDGMENT
INTRODUCTION
Mitchell is aged 17 years and three months. Although biologically female, Mitchell has lived as a male in all aspects of his life since 2016. In August of that year Mitchell was diagnosed with Gender Dysphoria in adolescents and adults in accordance with the criteria in DSM-V.
Mitchell wishes to commence stage two treatment for Gender Dysphoria. That treatment requires the administration of testosterone in such dose, manner and frequency as determined by his treating medical practitioners. The purpose of that treatment will be to masculinise Mitchell’s body.
As a result, Mitchell’s parents have made an application to the Court seeking orders or declarations such as will enable Mitchell to commence that treatment. In addition, Mitchell’s parents seek orders for an abridgement of time for the listing of the matter and to preserve the confidentiality of the proceedings and to restrict the persons who should be permitted to search the Court file.
These are my Reasons for Judgment with respect to those applications.
MATERIAL RELIED UPON
The applicants rely upon the following material:-
·Initiating Application filed 9 March 2017;
·Affidavit of the mother filed 9 March 2017;
·Affidavit of the father filed 9 March 2017;
·Affidavit of Dr K filed 9 March 2017;
·Affidavit of Dr P filed 9 March 2017;
·Email from Dr P dated 15 March 2017 (Exhibit A-1).
BACKGROUND
Mitchell was born in 1999 and is aged 17 years. He has a younger sibling who is aged 14 years. Mitchell lives with his sibling and parents.
In her Affidavit filed 9 March 2017, Mitchell’s mother deposes that since his early childhood, Mitchell has always been a “tom boy”, has had mostly male friends and preferred activities often associated with boys, such as football, basketball, Lego, video games and playing with action figures.
His mother deposes that at age 10, Mitchell responded “no” and became tearful when asked if he wanted to “be a boy” and he later told his mother that he wished to block out those thoughts but always knew that something “wasn’t right internally”.
Further, Mitchell’s mother deposed that Mitchell was drawn to “boyish” clothing. She observed that he was a happy, high-achieving child but that his mental health began to decline with the onset of puberty. Mitchell became distressed by the development of his breasts and the onset of menstruation.
At age 15, Mitchell told his mother that he identified as a male. Following that disclosure to his mother, Mitchell commenced informing close friends and extended family that he wanted to be a male.
In 2016 Mitchell changed schools and now attends a private school where he identifies as a male. He uses male toilets, wears a binder for his chest and has commenced taking medication to suppress his periods. He has lived completely as a male for the past 12 months, including changing his gender in his part-time employment.
Mitchell commenced treatment with Dr P, Paediatrician at the X Hospital’s Gender Unit in 2016. Upon assessment by Child and Adolescent Psychiatrists Dr M and Dr K Mitchell was diagnosed with meeting the criteria for Gender Dysphoria with an affirmed male identity.
Mitchell now seeks to commence stage two treatment for Gender Dysphoria which requires the administration of the male hormone testosterone.
Mitchell is supported by both his mother and father to commence that treatment and both parents have sworn affidavits in support of the current application.
LEGAL PRINCIPLES
In the decision of Re Jamie [2013] FamCAFC 110; (2013) 50 Fam LR 369 (“Re Jamie”) the Full Court considered what is known as stage two treatment of gender dysphoria. The Full Court there considered whether the stage two treatment is a medical procedure for which consent lies outside the bounds of parental responsibility, therefore requiring the imprimatur of the Court. In determining that issue the Full Court considered the question of the child’s capacity to consent to stage two treatment; that is the question of whether a Gillick competent child could consent to the procedure.
The term “Gillick competence” comes from the decision of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick”), where it was said by Lord Scarman at pages 188 to 189:-
…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.
The High Court confirmed in the decision of Secretary, Department of Health & Community Services (NT) v JWV and SMV (1992) 175 CLR 218 (“Marion’s case”) that the view of the House of Lords in Gillick represents the common law in Australia.
The Full Court in Re Jamie determined that a Gillick competent child could consent to stage two treatment. In considering that question, Bryant CJ stated:-
134. In my view, it would be contrary to the Convention on the Rights of the Child, and to the autonomous decision-making to which a Gillick competent child is entitled, to hold that there is a particular class of treatment, namely stage two treatment for childhood gender identity disorder, that disentitles autonomous decision-making by the child, whereas no other medical procedure does. The High Court in Marion’s case, adopting the formulation in Gillick, held at 237 that a child is 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”.
135. I see no basis for reading this down because the treatment is for childhood gender identity disorder. Indeed, one might think that, of all the medical treatments that might arise, treatment for something as personal and essential as the perception of one’s gender and sexuality would be the very exemplar of when the rights of the Gillick-competent child should be given full effect.
(Original emphasis).
It was held by the Full Court in Re Jamie that the question of Gillick competence is a matter for the Court to determine. That this is so is for two reasons:-
·first, due to the risk of making the wrong decision as to the child’s capacity to give consent; and
·second, because the consequences of a wrong decision are particularly grave.
The Full Court in Re Jamie held that once the question of Gillick competence is established, the Court would have no further role with respect to determination as to stage two treatment.
At the commencement of the hearing I was informed by counsel appearing for the applicants that the application had been served upon the Department and the Office of the Public Advocate (the “OPA”). There was no appearance by the Department or the OPA at the hearing.
I was provided with a letter from the OPA dated 14 March 2017 addressed to the applicants’ solicitor. That letter confirmed that the Principal Legal Officer of the OPA had been provided with materials and had spoken with the child’s treating consultant psychiatrist regarding the proposed treatment. It set out the matters raised by the Principal Legal Officer with Dr K and confirmed that the OPA did not intend to appear at the hearing of this matter.
Dr P, Mitchell’s paediatrician, gave brief oral evidence in relation to his consultation with and assessment of Mitchell.
The applicable standard of proof is the balance of probabilities in accordance with s 140 of the Evidence Act 1995 (Cth).
Proposed treatment and effects
In his report dated 2 December 2016 (annexure KP-3 of the Affidavit of Dr P filed 9 March 2017) Dr P indicates that the proposed treatment for Mitchell is testosterone to masculinise his body. There are a number of different formulations of that treatment and the exact form of treatment to be used and method of administration will be individualised for Mitchell.
The likely long-term physical, social and psychological effects of the proposed testosterone treatment on Mitchell include:-
·Development of hair in the pubic area, armpits and on the beard area of the face;
·Changes in facial shape and appearance;
·Irreversible changing of the voice, due to the growth of the larynx (Adam’s apple) and lengthening of the vocal chords;
·Muscle development;
·Increased oil production by the skin, which may result in acne;
·Growth of the clitoris and increased number of erections;
·Stopping the development of ova (eggs) in the ovaries, with loss of fertility;
·Stimulation of bone mineral density;
·Behavioural change as testosterone stimulates more assertiveness (sometimes aggression) and sexual desire.
Dr P confirmed in his report that there may be effects of testosterone that are not currently known or anticipated. He states that the long-term outcomes are still being studied. Dr P identified the following risks with respect to the proposed treatment:-
·Acne;
·Mood swings;
·Heart disease;
·Polycythaemia (increased red blood cells);
·Liver problems and rarely, malignant liver tumours;
·Thinning of the skin in the genital area (longer term).
In addition to the above effects, Dr P states that “the effects of testosterone on the 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”.
Further, Dr P observed that in the event that Mitchell chooses to cease testosterone treatment in future, some of the effects of that treatment will not be reversible and that there is a risk of regret.
Is Mitchell Gillick Competent?
The issue for determination by the Court is the question of whether Mitchell is capable of making his own decision in respect of the proposed stage two treatment; that is, does Mitchell have sufficient understanding and intelligence to enable him to understand fully the proposed treatment?
Mitchell has been under the care of Dr P since July 2016. Since that time, Dr P has consulted with Mitchell on three occasions, the first for approximately two-and-a-half hours and the second and third appointments each of approximately one hour’s duration. Dr P was unequivocal in his assessment that Mitchell is Gillick competent. In his report, Dr P assesses Mitchell’s capacity as follows:-
[Mitchell] has been consistent in articulating his wish for testosterone treatment. We have had numerous discussions about the treatment and the risks and benefits that are known. This includes the risk of regret and the impact on fertility. [Mitchell] engages in relevant discussion on the topic of testosterone and asks pertinent questions.
Dr P confirms in his report the nature of the discussions he has had with Mitchell regarding the proposed treatment. Mitchell has been provided with detailed information regarding the mode of administration, the reversible and irreversible effects, the risks and the relevant pathways to accessing the proposed treatment. In addition Dr P has provided Mitchell with a written information sheet as to the proposed treatment and provided him with the opportunity to ask questions in relation to the treatment.
Dr P confirmed that at the third appointment with Mitchell on 4 November 2016 he engaged in further discussion with Mitchell and his parents about the proposed testosterone treatment. He confirmed that Mitchell’s understanding about the effects of testosterone is very good and that that knowledge reflects the extensive research Mitchell had already undertaken in respect of the proposed treatment. Further, Dr P confirmed that he had discussed Mitchell’s proposed treatment with both Dr M and Dr K and confirmed that both support Mitchell’s proposed treatment.
During his oral evidence, Dr P confirmed that in February 2017 Mitchell attended upon Dr D, gynaecologist, for consultation regarding Mitchell’s fertility and the impact of the proposed treatment on his fertility. Dr P produced a report provided by Dr D (Exhibit A-1) in relation to her consultation with Mitchell. That report confirms that the issues discussed by her with Mitchell included:-
·Human reproduction in age-appropriate terms;
·Background infertility rate of approximately 15 per cent;
·Assisted reproductive technologies – ovulation induction, ovarian cryopreservation, in vitro-fertilisation, donor gametes, testicular tissue cryopreservation, sperm storage;
·Pathways to parenthood – biological, adoption, fostering, aunt/uncle, significant adult in child’s life;
·Decision-making around fertility;
·Effect of testosterone on ovaries – menstrual suppression secondary to endometrial thinning, suppression of ovulation, ovarian morphology changes which are reversible on ceasing testosterone;
·Other impacts of testosterone use – muscle mass, acne, voice changes, hair changes, clitoromegaly, libido changes, emotional changes;
·Contraception required if sexual activity with pregnancy risk occurs, as cross-hormones don’t provide contraceptive cover;
·Surgical options for the future – chest surgery, genital reconstructive procedures.
The report of Dr D concludes as follows:-
[Mtichell]…appeared to have a very mature approach to all discussions today.
Dr K also gives evidence as to her assessment of Mitchell’s understanding of the proposed treatment and the effects of that treatment. In her report dated 13 January 2017 (annexure PK-3 of her Affidavit filed 9 March 2017) Dr K states that she has consulted with Mitchell and his mother on a number of occasions during 2015 and 2016. She confirms the diagnosis that Mitchell has Gender Dysphoria in adults and adolescents in accordance with the criteria in DSM-V. As to Mitchell’s capacity to make an informed decision regarding the proposed treatment, Dr K states as follows:-
[Mitchell] is a bright young man who is able to demonstrate full understanding of the nature of the treatment, including side-effects and limitations and is actively requesting the treatment. In my opinion [Mitchell] is Gillick competent and is capable of making an informed decision about the treatment. He understands that some aspects of testosterone treatment are irreversible and that treatment will not have an effect on his breast size or some other physical characteristics. I believe that [Mitchell] would have had the opportunity to discuss the issues around fertility with a Gynaecologist. I believe that [Mitchell’s] mother has been supportive and at the same time has held an open mind in order to enable him to make an informed decision.
The evidence of Mitchell’s parents confirms that they have had lengthy and in-depth discussion with him about the proposed treatment and the potential impact of the treatment. Both mother and father fully support and consent to Mitchell being administered the proposed treatment with testosterone.
At paragraph 24 of her Affidavit, Mitchell’s mother observes Mitchell’s capacity to consent to the treatment as follows:-
[Mitchell] is 17 years old and is an intelligent boy who has been actively involved in his treatment and we believe is fully aware of what is involved and is keen to commence the treatment as soon as possible. Given the expected improvement in [Mitchell’s] mental health, it is imperative that [Mitchell] be given the opportunity to commence the treatment as a matter of urgency. Like any parents, we simply wish for our children to be happy and healthy. We have no doubt that the proposed treatment will best enable [Mitchell] to live the life that he wishes to do so and will lead to the best opportunity for him to live as a productive and happy adult.
That evidence is supported by Mitchell’s father.
I am satisfied having regard to the evidence of Mitchell’s treating medical practitioners and his parents that Mitchell has the necessary intelligence and understanding to enable him to consent to the proposed stage two treatment. I am satisfied on the balance of probabilities that Mitchell is competent to fully understand the nature and consequences of the proposed treatment and to make his own decisions with respect to that treatment.
Having made that finding I propose to dismiss the application with a right of reinstatement in the event that Mitchell’s parents seek to press their application for a declaration that Mitchell is Gillick competent. As noted in my judgment in Re Daniel [2017] FamCA 155, in earlier decisions of this Court there are varying views expressed by judges as to the Court’s power to make declarations as sought by the applicants. That issue is now the subject of a Case Stated to the Full Court in Re Kelvin [2017] FamCA 78. Given that that question is to be determined by the Full Court, in my view it is appropriate that I preserve the right of Mitchell’s parents to seek a reinstatement of their application for a declaration upon a determination of the issue by the Full Court.
In addition, given the very sensitive and personal nature of the applications before the Court, I will make orders preserving the confidentiality of these proceedings, including orders restricting those who may access the Court file.
THE ORDERS
That the name of the child, Mitchell born … 1999, Mitchell’s family members and their occupations, the hospital, Mitchell’s medical practitioners, Mitchell’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of the applicant’s lawyer and any other fact or matter that may identify Mitchell shall not be published in any way, and only anonymised Reasons for Judgment and orders (with coversheets 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 for provision to the treating medical practitioners and to enable their execution, and one coversheet of Reasons for Judgment that includes the file number and the lawyers’ names.
That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.
That the applicant be at liberty to provide a copy of the un-anonymised orders and the un-anonymised Reasons for Judgment to all persons involved with Mitchell’s treatment.
That upon the Court being satisfied that the child Mitchell born … 1999 is competent to consent to the medical treatment described in the Initiating Application filed 9 March 2017, the applicant’s Initiating Application filed 9 March 2017 be otherwise dismissed with a right of reinstatement upon the determination by the Full Court of the Case Stated in Re Kelvin [2017] FamCA 78 in the event that there are unresolved issues that require determination by a judge.
AND THE COURT NOTES
That the treatment described in the applicant’s Initiating Application filed 9 March 2017 is the following treatment for gender dysphoria:-
Stage two hormonal treatment with testosterone to masculinise his body.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 27 March 2017
Associate:
Date: 27 March 2017