Re: Pat

[2017] FamCA 418

FAMILY COURT OF AUSTRALIA

RE: PAT [2017] FamCA 418

FAMILY LAW – MEDICAL PROCEDURES – Gender dysphoria – Application for the child to undergo Stage 2 treatment for gender dysphoria – Where the child is 17 years of age –Consideration of whether the child is Gillick competent.

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 Father and the  Mother

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 15 June 2017

JUDGMENT OF: Rees J

HEARING DATE: 14 June 2017

REPRESENTATION

By Court Order the names of Solicitors have been suppressed

Orders

IT IS DECLARED

1. That the child, Pat, who was born on … 1999, is competent to consent to the administration of oestrogen and progesterone 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 Pat, 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were initiated, the name of Pat’s parents’ lawyers, and any other fact or matter that may identify Pat, shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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: Pat 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

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The applicants are the parents of Pat, born in 1999. Pat identifies as female and wishes to commence the administration of therapeutic oestrogen and progesterone, which is referred to as Stage 2 treatment for Gender Dysphoria.

2. The applicants seek a declaration that Pat is competent to consent to the treatment. In the alternative, the applicants seek that the Court authorise Stage 2 treatment in accordance with s 67ZC of the Family Law Act 1975 (Cth).

3. Pat is currently 17 years of age and will be 18 in August this year.

4. An Independent Children’s Lawyer (“ICL”) has been appointed for Pat. The Department, although served with the application, was not involved in these proceedings as a respondent.

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 limited to determining whether the child is competent within the meaning of the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. This is referred to as Gillick competency. 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 stated:

   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 Pat is whether or not he is Gillick competent to consent to the proposed treatment. If Pat is determined to be Gillick competent, court authorisation for the proposed treatment 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. Pat’s mother and father both filed affidavits in support of their application. Affidavits prepared by Pat’s psychiatrist and endocrinologist were also filed.

2. Pat’s mother deposed that Pat is very aware of the irreversible changes that will result from undergoing Stage 2 treatment, and he is aware that surgery would be required to remove the breasts that will develop from the hormone treatment. She deposed that Pat understands the effect that the hormones will have on his genitals, and that he may become infertile as a result of the treatment. Pat has refused the suggestion to store his sperm for later use and has indicated that he will find other ways to have children in the future if he is so inclined. She deposed that Pat has researched significantly into the medical treatment required and she feels confident that Pat’s decision is well considered.

3. Pat’s mother stated “[Pat] is very decisive and I trust that his decision is final. [Pat] is intelligent and has engaged in an intellectual process to make up his mind”.

4. Pat’s father deposed “[Pat] is a mature teenager, and when [[Pat’s] mother] and I discussed [Pat’s] decision to transition to female, I felt very comfortable with that decision. I am completely supportive of [Pat’s] decision to transition to female and intend to support [Pat] in any way I can with that decision.”

5. Dr H is Pat’s endocrinologist. He annexed a report dated 24 February 2017 to his affidavit. He has seen Pat on two occasions between September and November 2016. Dr H outlined Pat’s reported history of gender dysphoria being present since early childhood and his reported social anxiety having a negative effect on his schooling.

6. Dr H reported that Pat is aware that he can commence Stage 2 treatment without the Court’s intervention once he turns 18 in August this year. However, Dr H indicated that Pat feels the need to commence hormone therapy as early as possible.

7. Dr H concluded that, in his opinion, Pat is Gillick competent. He reported:

   I believe that [Pat] is able to comprehend the nature of the treatment such that he is able to provide informed consent, according to the Gillick standard. [Pat] is aware of the potential benefits and negative effects of treatment, including the effects on fertility. [Pat] is aware that some of the effects of hormones may be permanent and could remain even if treatment is discontinued. [Pat] is cognisant of the fact that the treatment may have unforeseeable consequences. [Pat’s] expectations of treatment are realistic such that he does not expect treatment to address all future psychological and social difficulties that he may encounter.

8. Dr S is a psychiatrist who saw Pat on one occasion on 18 November 2016 and interviewed Pat’s parents. Dr S opined that Pat has demonstrated the requisite level of competency to be Gillick competent. He reported:

   With reference to the Gillick standard, [Pat] demonstrated to me he has done an enormous amount of research over several years and is well informed regarding the changes associated with feminising hormone treatment. He was well able to provide a full explanation, befitting his maturity and education, of the nature of Phase 2 treatment. 

9. Dr S opined that Pat demonstrated a clear understanding of the benefits and side effects of undergoing Stage 2 treatment. Dr S continued:

   [[Pat]] was able to show age-appropriate capacity to arrive at an informed decision, aware of that some unforeseen consequences may result, and that such treatment would not provide a panacea to all social and psychological difficulties currently experienced. He is free from any temporary factors such as pressure or pain that could impair his judgement. [Pat] is now resolute in his decision to commence medical transition. He was quite clear that until he commences this transition he prefers to retain “he/him” pronouns, as “she” wouldn’t yet feel right.

   It is my opinion [Pat] meets the DSM-V criteria for gender dysphoria and is competent to the Gillick standard to provide consent.

Determination

1. Pat will be an adult from August  2017 and competent to make any decisions in relation to his medical treatment. Nothing in the evidence suggests that his understanding and intelligence and his ability to understand the benefits and detriments of the treatment that he seeks and his doctors propose, will be any greater in two months’ time than it is at the present time.

2. Having regard to all of the evidence I am satisfied that Pat is competent to consent to Stage 2 treatment for gender dysphoria.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 15 June 2017.

Associate:   

Date:   15/6/2017