Re: Rosie (Special Medical Procedure) - [2011] FamCA 63

FAMILY COURT OF AUSTRALIA

RE: ROSIE (SPECIAL MEDICAL PROCEDURE)

[2011] FamCA 63

FAMILY LAW – CHILDREN – Special medical procedures – gender identity dysphoria

APPLICANTS:

The Mother and the Father

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: By Court Order, file number is suppressed

DATE DELIVERED:

28 January 2011

JUDGMENT OF:

Dessau J

HEARING DATE:

17 January 2011

REPRESENTATION

By Court Order, names of representatives are suppressed

Orders

That the Mother and the Father shall be authorised to consent on Rosie’s behalf to treatment for her as follows:
(a)Under the guidance of Rosie’s treating medical practitioners including but not limited to her endocrinologist (“Professor W”) and her psychiatrist (“Dr H”), Rosie be administered a short-acting testosterone drug such as Sustanon 250 injection, commencing with a 0.5mL injection every two to four weeks and increasing to 1.0mL dosage as considered appropriate; and
(b) At a time considered appropriate by Rosie’s treating medical practitioners, and being no sooner than two months after the commencement of the Sustanon 250 injections, Rosie be administered a long-acting drug testosterone such as Reandron 1000 at such dosage and in such intervals as considered appropriate by her treating medical practitioners; and
(c) Any other hormonal and/or psychiatric or psychological treatment recommended by Rosie’s treating endocrinologist, psychiatrist and any other treating medical practitiners from time to time.
2.That the full name of Rosie, her family members, the hospital, the Independent Children's Lawyer, her medical practitioners, her school, this Court’s file number, the Family Consultant, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify Rosie shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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.
3.That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.
4.That otherwise all existing applications shall be dismissed, the case removed from the list of cases awaiting finalisation, and the appointment of the Independent Children’s Lawyer shall be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Re: Rosie (Special medical procedure) is approved 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

Applicant

REASONS FOR JUDGMENT

INTRODUCTION

Rosie is an almost 17-year-old girl who has been diagnosed with Gender Identity Disorder. She identifies as and desperately wants to live as a male. The treatment to enable that to occur is supported by her parents, psychiatrists,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re: Rosie (Special Medical Procedure)

Details

AGLC: Re: Rosie (Special Medical Procedure) [2011] FamCA 63
Case: [2011] FamCA 63
Decision Date: 28 January 2011

CaseChat Overview and Summary

This matter came before Dessau J concerning a special medical procedure proposed for a child named Rosie. The dispute involved the authorisation for Rosie's parents to consent to this treatment, which included hormonal therapy and psychiatric or psychological support. The court was tasked with determining whether to grant this authorisation and to make consequential orders regarding the proceedings and the privacy of the parties involved.

The central legal issue before the court was whether Rosie was capable of making an informed decision regarding the proposed medical treatment, applying the principles established in *Gillick v West Norfolk A.H.A* [1986] A.C.112. This required an assessment of Rosie's understanding and intelligence in relation to the proposed procedure, its potential risks, and consequences. The court also considered the evidence of Rosie's treating medical practitioners and a Family Consultant regarding her capacity and wishes.

Dessau J applied the *Gillick* principle, finding that Rosie possessed a sufficient understanding and intelligence to comprehend the proposed treatment. This conclusion was supported by evidence from her endocrinologist, psychiatrist, and a gynaecologist, all of whom indicated that Rosie was articulate, intelligent, and had a well-researched understanding of her condition and treatment options. Despite a Family Consultant noting some emotional immaturity attributable to psychological issues, this was not considered to impair her capacity to make an informed decision about the treatment. Rosie's deep-seated and unwavering wish for the treatment, coupled with her understanding of its physical and psychological implications, led the court to find her "Gillick competent."

The court ordered that Rosie's Mother and Father be authorised to consent on Rosie's behalf to the proposed hormonal treatment, including short-acting and long-acting testosterone injections, and any other recommended hormonal, psychiatric, or psychological treatment. Strict non-publication orders were made to protect Rosie's identity, with only anonymised reasons and orders to be released to non-parties. Existing applications were dismissed, the case removed from the list, and the appointment of the Independent Children's Lawyer discharged.

Orders

Orders of the court

That the Mother and the Father shall be authorised to consent on Rosie’s behalf to treatment for her as follows:

(a) Under the guidance of Rosie’s treating medical practitioners including but not limited to her endocrinologist (“Professor W”) and her psychiatrist (“Dr H”), Rosie be administered a short-acting testosterone drug such as Sustanon 250 injection, commencing with a 0.5mL injection every two to four weeks and increasing to 1.0mL dosage as considered appropriate; and

(b) At a time considered appropriate by Rosie’s treating medical practitioners, and being no sooner than two months after the commencement of the Sustanon 250 injections, Rosie be administered a long-acting drug testosterone such as Reandron 1000 at such dosage and in such intervals as considered appropriate by her treating medical practitioners; and

(c) Any other hormonal and/or psychiatric or psychological treatment recommended by Rosie’s treating endocrinologist, psychiatrist and any other treating medical practitiners from time to time.

2. That the full name of Rosie, her family members, the hospital, the Independent Children's Lawyer, her medical practitioners, her school, this Court’s file number, the Family Consultant, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify Rosie 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.

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

4. That otherwise all existing applications shall be dismissed, the case removed from the list of cases awaiting finalisation, and the appointment of the Independent Children’s Lawyer shall be discharged.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As regards the actual administration of Reandron 1000, once it starts, it is possible that Rosie will experience some pain from each injection, which could last approximately one day. Professor W’s evidence was that Reandron 1000 will cause testosterone levels in the blood to fluctuate less than with shorter acting injections which may cause “emotional disturbances”. In any event, the more cautious approach of starting treatment with Sustanon 250, and closely monitoring Rosie for any adverse side-effects of the hormonal treatment, is designed to reduce such emotional disturbances. (g)If the child is capable of making an informed decision about the procedure – whether the child agrees to the procedure In considering whether a child is capable of making an informed decision, the authorities have adopted the principle in Gillick v West Norfolk A.H.A [1986] A.C.112, where the House of Lords held that a minor 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”. In this case, Rosie not only agrees to the treatment, but she has researched it and is ardently seeking it. Her parents and all the experts agree that she is capable of making an informed decision about it. Rosie’s treating psychiatrist, Dr H, had no concerns in relation to her intellectual capacity, and noted that her psychological/psychiatric test results indicated she had the capacity to provide informed consent, with an understanding of the potential risks. The psychiatrist, Professor N, noted that Rosie presented as articulate and intelligent with a “demonstrated … high level of understanding of her dilemma” and a “well–researched understanding of the treatment options”. Professor N found that her “insight into her current situation was intact” and that she is “well aware of the nature of her condition … able to give a clear and comprehensive account of her gender dysphoria”. Professor W’s evidence was that Rosie was able to express her opinion about wanting the proposed treatment and that she “understands what the consequences will be”. The gynaecologist Professor G expressed the opinion that Rosie appears to be “Gillick competent” and able to make an informed decision. The Family Consultant reported that Rosie’s wish to have the treatment is “deep seated and unrelenting” and has been “unwavering” since discovering it as a possibility. In the Family Consultant’s opinion, Rosie’s wishes should be followed. She noted though that while Rosie is intellectually bright, “she appears to have the emotional maturity of someone of slightly less than her chronological age”. That appeared to be attributable to “significant psychological issues” which “limit her capacity at times to look at issues objectively”. Still, the Family Consultant did not consider that Rosie’s capacity to make the decision about the treatment was in any way impaired. She noted that Rosie understands the “physical implications” and “psychological issues” of the proposed treatment as well as any person of her age, despite her relative immaturity.

Ratio Decidendi

Legal Principle Established

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