Re: Oliver

[2016] FamCA 423

FAMILY COURT OF AUSTRALIA

RE: OLIVER [2016] FamCA 423

FAMILY LAW – MEDICAL PROCEDURES – Childhood gender dysphoria – Where the Court declares that the child is competent to consent to the administration of Stage 2 treatment.

Family Law Act 1975 (Cth) s 67ZC

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

APPLICANT: The Mother

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 31 May 2016

JUDGMENT OF: Rees J

HEARING DATE: 31 May 2016

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

IT IS DECLARED

1. That the child X, known as Oliver, who was born in 2001 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.

IT IS ORDERED

1. That the full name of Oliver, 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were initiated, the name of Oliver’s mother’s lawyers, and any other fact or matter that may identify Oliver shall not be published in any way, and only anonymised reasons for judgment and orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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.

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

Applicant

REASONS FOR JUDGMENT

1. The Mother seeks orders which would permit the child X (known as “Oliver”), who has been diagnosed with gender identity dysphoria, to consent to the administration of testosterone, referred to as “Phase 2 therapy for gender dysphoria”.

2. In the alternate, the mother seeks an order that the Court authorise the treatment.

3. Oliver’s father is unknown to the mother and to Oliver and not noted on his birth certificate.

4. The Secretary of the state welfare agency was served with the application and has appeared and indicated to the Court that the Secretary does not wish to take any further part in the proceedings. The Secretary was excused.

5. An Independent Children’s Lawyer (“ICL”) was appointed for Oliver. The ICL supports the mother’s application.

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 the Chief Justice and, 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 her Honour’s judgment, the Chief Justice 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 195–196:

   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. The issue therefore in relation to Oliver is whether or not he is Gillick competent to consent to hormone therapy.

6. The ability of a child to make his or her own decision in respect of medical treatment depends upon that child’s 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. Oliver’s mother, who is an allied health professional, swore an affidavit on 6 April 2016. She deposed that Oliver identified as male from the time he was about two years of age. Since January 2015, when Oliver told his mother, that he felt that he was a boy, Oliver has been referred by his general practitioner to a psychologist and he has continued to consult psychologists. He has also been assessed by a psychiatrist, Dr K, by a paediatrician, Dr P and, on referral from Dr P, by a further psychiatrist, Dr Z and a clinical psychologist, Dr C. Oliver has also been referred to a paediatric endocrinologist, Dr M, who commenced Stage 1 treatment with Oliver in August 2015.

2. Oliver’s mother deposed that Oliver is a very logical person who has no doubt about his gender. He has been assessed over and over again and is frustrated by not being able to access Stage 2 of his hormone treatment.

3. Oliver’s mother deposed that Oliver is completely aware of the effects of testosterone. He is aware that if he stops testosterone that some effects, such as his voice and facial hair, will be irreversible. Oliver is also actively seeking to preserve his fertility for his future.

4. Oliver’s mother deposed:

   [Oliver] has always been a cautious, as well as logically thinking, child growing up. From a very young age you could see him assessing a situation to see if it was safe and what consequences could happen. He always surprised me with his ‘big picture’ thinking. He still had fun and took risks, although they were calculated risks. [Oliver] would respect what I would tell him to keep him safe, so for example, he would not jump into water where he could not see the bottom. [Oliver] walked a short distance home with some friends in Year Six. He always came straight home, even if his friends become waylaid doing one thing or another. I could always trust [Oliver] that he would do the right thing. It was [Oliver] that friends would go to for help with a problem or if they were upset.

5. Oliver’s mother deposed:

   In high school he knew one of the students was harming themselves. He was unsure the best way to handle this as the student had asked him not to tell anyone. That night when he got home he talked to me about it and together we worked out the best way to handle it. The next day [Oliver] confided to the School Counsellor who approached this student on instructions of one of their teachers. In this way the student was supported and was able to stay safe and not feel betrayed. [Oliver] really is mature beyond his years. This has continued to be the case. I would describe [Oliver] as very sensible. If the bus fails to show or the train is cancelled to or from school, he remains calm and sorts it out as an adult would. [Oliver] never says one thing and goes off to do another. He has always been honest with me.

6. Oliver’s paediatric endocrinologist, Dr M, swore an affidavit and provided a report dated 12 February 2016.

7. Dr M deposed: “Following my first meeting with [Oliver] and his mother … in August 2015 I was satisfied that [Oliver] had a sufficient and age-appropriate understanding of puberty suppression and the longer term issues related to gender dysphoria.”

8. Dr M in her report said:

   [Oliver] 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 [Oliver] has sufficient knowledge and understanding of the effects of phase 2 therapy to proceed with that. He understands that many aspects of androgen therapy are 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.

9. Oliver has been assessed by Dr K, a consultant child adolescent and adult psychiatrist for a total of nine sessions.

10. In his report Dr K stated:

    [Oliver] was able to articulate his knowledge of what the Phase 2 treatment comprises, being most likely to consist of testosterone injections every several weeks. He understood that the schedule will depend upon the stage of treatment and the type of testosterone being prescribed. He also understood that there are medications available for some of the side effects of testosterone, should they occur. He impressed as being able to take in new information, retain it and integrate it with his existing knowledge.

11. Oliver was able to explain to Dr K the nature of the treatment, the advantages of the treatment and the disadvantages of the treatment, and express the view that the advantages of the treatment strongly outweighed the risks and disadvantages to him.

12. Dr K stated:

    He demonstrated the ability to understand that Phase 2 treatment will not necessarily address all of the psychological and social difficulties that he had before the commencement of treatment. [Oliver] expects that his stress, anxiety and depression will be much reduced but not completely cured. He was aware that it will take more time to resolve his grief over the death of his [sibling], and recognises that other young people at school may continue to be problematic for him.

13. Dr K stated “I believe that [Oliver] is free to the greatest extent possible from temporary factors that could impair his judgment in providing consent to the procedure.”

14. I am satisfied that Oliver is competent to consent to the procedure which is proposed and a declaration will be made accordingly.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 31 May 2016.

Associate:

Date:  31 May 2016