Re: Rosie (Special Medical Procedure)
[2011] FamCA 63
•28 January 2011
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were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify Rosie shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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, endocrinologist, the Family Report writer, and the Independent Children’s Lawyer.
While Rosie currently identifies as male, for the purpose of these Reasons for Judgment I shall refer to her by her female name and use the female pronoun.
The application before me has been brought by Rosie’s parents, proposing treatment by an eminent endocrinologist at a leading hospital, to induce masculine development.
At the first return date I made orders inviting the Office of the Public Advocate and the Department of Human Services to intervene. Neither chose to do so.
Although the parents’ application initially sought that they be authorised to consent to a particular hormonal treatment for Rosie, the proposed treatment was subsequently reviewed by Rosie’s endocrinologist who, with a view to minimising any potential negative mood and behavioural side-effects sometimes experienced with hormonal treatment, altered his view as to the most appropriate treatment. The amended application envisaged a more gradual treatment process, authorising her parents to consent on Rosie’s behalf as follows:
(a)That under the guidance of Rosie’s treating medical practitioners including but not limited to her Endocrinologist (“Professor W”) and her Psychologist (“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)That at a time considered appropriate by Rosie’s treating medical practitioners, and being no sooner that 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 and psychiatrist from time to time.
I shall explain in further detail below the treatments referred to in the application.
No orders were sought for any surgical intervention. While Rosie has discussed with the professionals a consideration of a mastectomy and genital surgery, neither are being pursued at present.
At the end of the hearing, I advised the parties that I proposed allowing the parents’ application, although the precise form of the orders was deferred until after these Reasons.
BACKGROUND
Rosie is the eldest child of the mother and father. Her younger brother, W, is presently aged 14 years. Her father works in a managerial role and her mother as a teacher.
The parents separated in mid-2010, but have an amicable relationship. They are committed to co-parenting their children, and are united in their approach to this application. They live close to each-other. The children come and go informally between the two homes in a shared care arrangement.
Rosie was a healthy baby, although described by her father as a “difficult and unhappy infant” and by her mother as a “mixture of vivacious friendliness and explosive anger”. Her father described her social behaviour at home as “difficult” throughout her childhood and adolescence, and marked with “anger, rebellion and unhappiness”. He said that Rosie now identifies that a major contributor to her anxiety and distress has related to her gender identity issues.
Rosie first indicated issues with gender identity at approximately two years of age. While being bathed by her father, she asked him whether it would be possible for her to go to the hospital in order to have an operation which would give her a penis. The father described her tone as “imploring and serious”. He described her as having no interest in “girls’ stories” as a toddler, but identifying with the boys in stories, or wanting to play the role of a boy in made-up stories. She never played with dolls or “female toys”.
By the age of three, Rosie insisted she was a boy and wanted to be addressed as “[male name, X]”. At four she adopted the name “[male name, Y]”, and at eight years old settled on the name “[male name, Z]”, the name she wishes to maintain once she has commenced the physical transition this application seeks.
At around the age of three, and then throughout her childhood, Rosie also began to display numerous behaviours which indicated that she identified as a male. Her father recalled that Rosie would look upon the masculine figures of truck drivers and builders with “undisguised admiration”. Her interests and identification were directed to traditionally male activities and skills. She asked her mother to have her hair cut short in a boyish style. As a compromise, her mother instructed the hairdresser to cut Rosie’s hair short at the back, leaving the front long. Shortly after, Rosie herself cut the rest short, and she has worn it in a short boy-like fashion since then.
Also, from about three, Rosie insisted on dressing only in male clothing and wanted her mother to purchase items only from the boys’ section of stores. The mother swore, for example, that Rosie “has never worn girls’ underpants”.
The mother recounted one occasion when Rosie was approximately five years old when she chose to wear a dress and jewellery. She told her mother it was “just for dress-ups”. After a little while, she “became overcome with disgust at her appearance” and quickly changed back into her male clothes. Since then, Rosie has dressed only in male attire, save on one occasion when she was forced by her kindergarten teacher to wear a dress for a Christmas play.
When Rosie was a toddler, her parents consulted their General Practitioner about her wish to be a boy. They were reassured that it was just a phase that Rosie would grow out of.
Her father described Rosie as a “fairly quiet and polite” student in primary school. It seems that she excelled in English and was a talented musician, having begun drum lessons at the age of 11. (She is now part of a band with three 16-year-old boys.)
Her mother described difficulties though for Rosie during her primary school years “because of her masculine appearance”. Other students sometimes challenged her if she went into the girls’ toilets or used the girls’ changing room at the swimming pool. She chose not to use the girls’ toilets at school and would instead “hold on” until she returned home at the end of the day. That, and her avoidance of activities where she had to “identify as a female or expose her body”, had a negative impact on her overall schooling experience. Eventually she refused to participate in school camps and sports.
Rosie first began to experience puberty when she was approximately 10 years old. Her mother noticed an increase in her “distress and discomfort”. Her mother recounted that Rosie started to become “angry” and “defiant”, would call her names and tell her that she hated her if she sought to set boundaries or have her participate in the household. Her mother also recalled that Rosie “became jealous and resentful of her brother, claiming that we favoured him”.
Her father described how Rosie would ride her bike in circles for hours until it became too dark, and how at 11 years old she would spend hours bouncing on the trampoline “in all weather and particularly at night in the dark”.
Rosie experienced her first period shortly before her twelfth birthday. Her mother described her as subdued and quite depressed. She would not speak about it but “became increasingly more unhappy” from that time. Her father described Rosie suffering both physical and psychological pain during her periods as they were “a reminder of her female body and an insult to her masculinity”. Her father described that “to watch her during her periods is to see the cruelty of her situation amplified to its extreme”. Her parents were gravely concerned that she was at risk of increased self-harm at those times.
Rosie also had significant breast development by age twelve. Her father described how initially Rosie would “round her shoulders, contort her posture and cross her arms” to hide her breasts. By age 13 she was wearing sports bras to flatten her breasts and progressed to wearing a special but extremely uncomfortable vest when she was fourteen.
Her mother swore that by the time Rosie finished primary school “she seemed to be in a constant state of dread and panic”. She found the start of high school fraught with stress, and she suffered from sleeplessness and bouts of diarrhoea in the mornings before leaving for school.
She developed a good relationship with a youth worker at school, who was as a great support to her. She was also able to use the staff toilets, which helped relieve her significant anxiety. She made some friends and joined the band. Nevertheless, her behaviour declined. Her father described her as increasingly “tormented, angry and anti-social” at home.
Both parents recounted that by about fourteen, Rosie was out of control. She would leave the house without telling them where she was going. She would be gone for many hours and often at night, with her mother driving around the streets searching for her. She would “fly into a rage” when they would question her.
Rosie’s school attendance deteriorated. In August 2010 she dropped out of school as she could no longer stand being in an environment in which she felt “alienated, uncomfortable and left out from the other boys.” Her mother described that although Rosie continued her studies at home, she seemed to have lost the passion for education, and had become more and more consumed by the need to change her body to the masculine form with which she identifies.
In early 2009 Rosie had disclosed to her mother that she had an issue with “binge eating”. Her mother took her to see a psychologist with expertise in eating disorders. Rosie only saw the psychologist for a few sessions. Although she did not discuss her gender identity issues, at around that time she sought a referral from her General Practitioner to a gender dysphoria specialist. She was referred to a specialist psychiatrist, Dr H who saw her approximately monthly from January 2010 to mid 2010.
Once Rosie started discussing her gender identity issues with experts, her parents understood that much of her troubled behaviour was related to her gender identity disorder. They saw some improvements in Rosie once she was able to talk openly about the issues. Rosie expressed to one psychiatrist her sense of support from her parents, and the relief that the treatment issues were now being considered. Her mother swore that Rosie was ‘like a different person” since consulting with Dr H.
However it was still far from plain sailing. Rosie continued to exhibit distress. In April 2010, she took an overdose of Panadol and was admitted to the Monash Medical Centre for two days. She told her mother that she had taken the capsules in an attempt to make herself vomit after binge eating. She spoke about it to a number of professionals in the context of a suicide attempt.
In September 2010, she consumed so much alcohol that she passed out. When her mother arrived after receiving a call from one of her friends, she found Rosie “wet from head to foot with vomit”. At around that time too, she told a psychologist that she had been cutting herself, as a “release of anger”.
In about mid-2010, Dr H referred Rosie to another psychiatrist Professor N, for a second opinion. Rosie then saw Professor W, an endocrinologist, and Associate Professor G, an obstetrician and gynaecologist. The Clinical Ethics Response Group of the relevant hospital met in September 2010 and supported Rosie’s wish to transition to male. This application, brought by the parents in December 2010, is the upshot.
THE LEGAL PRINCIPLES
Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act. One of the objects is to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
In deciding a particular parenting order, the best interests of the child are the paramount consideration (s 60CA). The primary and additional considerations for the Court in determining what is in the child’s best interests are set out in s 60CC(2) and (3).
It is generally within the bounds of a parent’s responsibility to be able to consent to medical treatment for and on behalf of their child. There are however certain procedures, referred to in the authorities as “special medical procedures”, that fall beyond that responsibility and require determination by the Court, as part of the Court’s parens patriae or welfare jurisdiction (see Secretary, Department of Health and Community Services the JWB and SMB (1992) FLC 92-293 (Marion’s case)). There was no dispute in this case that the procedures proposed fall within the definition of special medical procedures.
In 1995, s 67ZC of the Act was inserted, specifically providing that the Court has jurisdiction to make orders relating to the welfare of children. The child’s best interests remain the paramount consideration.
The procedure to be followed in applications for Medical Procedures is contained in Chapter IV, Division 4.2.3 of the Family Law Rules 2004.
Rule 4.09(1) provides that evidence must be given “to satisfy the court that the proposed medical procedure is in the best interests of the child”.
Largely following a list of matters expressed by Nicholson CJ in Re Marion (No.2) (1994) FLC92-448, Rule 4.09(2) provides that evidence must be included from “a medical, psychological or other relevant expert” to establish:
(a)the exact nature and purpose of the proposed medical procedure;
(b)the particular condition of the child for which the procedure is required;
(c)the likely long-term physical, social and psychological effects on the child:
(i) if the procedure is carried out; and
(ii) if the procedure is not carried out;
(d)the nature and degree of any risk to the child from the procedure;
(e)if alternative and less invasive treatment is available — the reason the procedure is recommended instead of the alternative treatments;
(f)that the procedure is necessary for the welfare of the child;
(g)if the child is capable of making an informed decision about the procedure — whether the child agrees to the procedure;
(h)if the child is incapable of making an informed decision about the procedure — that the child:
(i) is currently incapable of making an informed decision; and
(ii) is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future;
(i)whether the child’s parents or carer agree to the procedure.
Although each case mostly turns on its own facts, Gender Identity Disorder has been considered in several of the reported decisions including Re Alex: Hormonal Treatment for Gender Identity Dysphoria(2004) FLC 93-175, Re Alex(2009) 42 Fam LR 645, and Re Brodie (Special Medical Procedures) [2008] FamCA 334, and in each the procedures were permitted.
MATERIAL RELIED UPON
The applicant parents relied upon their Amended Initiating Application filed 11 January 2011, the affidavit of the father filed 1 December 2010m and the affidavit of the mother filed 1 December 2010.
They and the ICL otherwise relied upon:
·The affidavit of psychiatrist Professor N filed 3 December 2010
·The affidavit of psychiatrist Dr H filed 1 December 2010 (referred to in error in the parents’ application as “psychologist”)
·The affidavits of endocrinologist Professor W filed 1 December 2010 and 11 January 2011
·The affidavit of gynaecologist and obstetrician Associate Professor G filed 10 December 2010.
·The Family Report prepared by the Family Consultant dated 10 January 2011
Only the Family Report writer was required by the ICL for cross-examination.
PUBLICATION
It is important to protect Rosie’s identity. The substance of these proceedings is at the most sensitive end of matters concerning her welfare. Privacy is also more likely to protect and promote her mental health, given that issues of her gender identity have not been divulged to the world at large.
The matter first came before me for mention on 9 December 2010. On that day I made orders by consent which included that until further order the proceedings in this matter would be known as “Re [Z]” (subsequently changed by order of 17 January 2011 to “Re Rosie”), and reported in that way in the published list of daily cases. I shall now make more extensive orders to protect Rosie’s identity, as requested by her parents in their application.
Accordingly, in this judgment, she is referred to only as Rosie, her parents’ and brother’s identities are not disclosed, the hospital’s and the experts’ names are not disclosed, and I shall make orders to ensure that no details that could identify her are published or disclosed by a search of the court file, to any non-party without court order. Such orders shall also apply to the file number, the lawyers’ names, and the State of Australia in which the case was initiated. Only the parties shall receive a copy of these Reasons with some details (not names) on the coversheet, and one full set of orders, including names, to facilitate the proper execution of orders by the various medical practitioners.
I turn now to the evidence, following the considerations in Rule 4.09(2) although, for convenience, in a slightly different sequence.
(b)The particular condition of the child for which the procedure is required
In about mid-May 2010, consultant psychiatrist Dr H, diagnosed Rosie as satisfying all diagnostic criteria for Gender Identity Disorder, specifically Gender Identity Disorder 302.85 as defined in the DSM IV TR. He described her as suffering Gender Identity Disorder of “significant severity”. Her scores on the Utrecht Gender Dysphoria Scale placed her in the transsexual range.
Rosie had been referred to Dr H by her GP in late-2009. Dr H is the head of unit at the gender dysphoria clinic of an established and respected public health provider, a member of a state mental health review board, and a clinical fellow and senior lecturer in the psychiatry department of a reputable university. Dr H also has a private psychiatric practice and extensive experience in gender identity and transsexual issues. He is a member of a world professional association for transgender health, and holds a senior position on the board of an Australian and New Zealand transgender health association. He is widely published in this field.
Dr H described Rosie giving a history of gender variant behaviour dating back to childhood. She identified as male as long as she could remember. She told him that when she started menstruating, she thought her “life would end”. She hated breast development and was “terrified” of turning into a “curvaceous woman”. She described intermittently binding her breasts to conceal them. She said she was attracted to females more than males. She said she was taken as a male “all the time, more or less” and her female body felt “foreign and strange”.
Dr H noted a history that included a binge-eating disorder, depression, self-harm and in the past, panic attacks. He was of the opinion that those issues related to her gender dysphoria and that her level of psychological functioning was likely to improve with gender treatments.
In June 2010, Dr H referred Rosie to psychiatrist Professor N for a second opinion. Professor N is a professor of developmental psychiatry and director of a centre for developmental psychiatry and psychology at a large teaching university. She has held various important professional offices, received prizes, and is widely published in various areas of psychiatry. She has expertise in the area of gender development and gender identity disorder.
Professor N agreed with Dr H’s diagnosis of gender identity disorder. In her opinion, Rosie presented with a “clear history and features” of gender identity disorder of early onset. She would benefit from hormonal treatment.
(a) The exact nature and purpose of the proposed medical procedure
Professor W is the Senior Endocrinologist at the large and well-regarded hospital where Rosie will be treated. He is widely published in the area of gender disorders, presents at international meetings, and has been involved in the management of a number of young people experiencing transsexualism. He holds a number of distinguished appointments, including at a relevant institute and university.
Professor W provided a proposed treatment plan for Rosie in his report of 4 November 2010. He noted that, in line with the U.S. Endocrine Society’s treatment guidelines for the hormonal treatment of transsexual persons, because Rosie was already 16 (now almost 17), it would be appropriate to commence treating her with cross-sex hormone therapy (in this case testosterone), without the preliminary step of treating her with a “puberty-blocking” drug (or a GnRH analogue). Only testosterone would suppress pituitary gonadotrophin production, and therefore ovarian activity. He set out a proposed regime of injections.
In an updated report dated 10 January 2011, Professor W reviewed his proposed treatment plan, in an effort to minimise possible side-effects, such as mood swings and aggressive behaviour that some people experience when commencing hormonal treatment. He determined a “more cautious approach” that would enable him to “monitor and modify” Rosie’s treatment should she suffer adverse side-effects to the hormonal treatment.
In Professor W’s opinion, it would be in Rosie’s best interests to commence treatment with a shorter-acting form of testosterone, such as a Sustanon 250 injection, administered every two to four weeks, at an initial dose of 0.5mL, increasing to 1.0mL according to Rosie’s tolerance. If Rosie is happy with the effects of the Sustanon treatment after several months, Professor W would administer the Reandron 1000 (testosterone) as originally proposed.
Professor W’s long-term plan is to treat Rosie with the long-acting testosterone drug every 12 weeks, administered by intra-muscular injection. He proposed starting with the 2mL injection which is half the full dose, to ensure it is well tolerated, increasing it to 4mL every 12 weeks, assessing efficacy by measuring her female sex hormone after four to six weeks, and checking that menstruation has been suppressed after the first few months. If the female sex hormone is not adequately suppressed with 12-weekly administration, he will slightly increase the administration, (10 to 11-weekly), until he finds the frequency and dose that achieves the desired effect.
Most significantly, Professor W asked that he be given “some flexibility” in how he initiates the testosterone therapy, to minimise the side-effects for Rosie.
Associate Professor G, an obstetrician and gynaecologist who has considerable experience with young people with disorders of sex development and gender identity disorders, saw Rosie in August and September 2010. She agreed with the treatment program initially proposed by Professor W.
Although Professor G was not subsequently made aware of the change to Professor W’s proposal, she had acknowledged that the details regarding the frequency of testosterone injections would be managed by the endocrinologist and that the exact frequency of the dosing would ultimately vary, depending on the dose required to suppress menstruation. I am satisfied that she acknowledged Professor W as the best qualified and best placed to adjust the treatment, and given that his revised program envisages a “more cautious approach”, it does not require further comment from her.
According to Professor W, the treatment as outlined above will:
…induce the growth of facial and body hair, deepen the voice, induce muscular development and increased strength, cause an increase in both the length and diameter of the clitoris, stimulate sebaceous gland activity in the skin (perhaps exacerbating [Rosie’s] acne) and have behaviour effects such as increased libido, increased assertiveness and increased physical energy.
Professor W noted that ovulation and menses will cease, but the effect on the ovaries will be fully reversible if treatment is stopped. Rosie’s fertility will be temporarily impaired, but in a fully reversible way. He reported that Rosie was not concerned about that and was happy to defer thinking about it until a later stage.
Professor W described the benefits of the treatment for Rosie as “mainly psychological”. She will have a sense of being taken seriously and being supported and will derive satisfaction from the desired sexual development, instead of sexual development that causes her distress. Professor W understood Rosie’s view that she will have more ambition, a greater will to live, and be able to feel more content.
(e)If alternative and less invasive treatment is available – the reason the procedure is recommended instead of the alternative treatments
Professor W considered alternative treatments. As noted, a preliminary step of treating Rosie with a “puberty-blocking” drug was considered inappropriate at her age, as only testosterone will suppress her pituitary gonadotropin production and ovarian activity.
It was Professor W’s evidence that the treatment he proposed was less invasive than alternative treatment which would include a subcutaneous implant of the GnRH analogue, followed by the GnRH analogue and testosterone.
Professor W also noted that the benefit of treating Rosie with testosterone from the outset, rather than with a GnRH analogue first, was that she will avoid “menopausal” symptoms that she would almost certainly experience if she had her oestrogen levels precipitously reduced with no other sex hormone replacement. To her benefit, she will also avoid the risk of losing bone mineral density.
Professor W also considered alternative forms of testosterone administration, other than by injection. In his opinion, oral administration or application of a gel on the skin would not be sufficiently potent to suppress ovarian function.
The gynaecologist, Professor G, agreed that Rosie would not benefit from “puberty blockers” alone, as they would not achieve “any masculinisation”. She noted that although existing guidelines recommend the use of “puberty blockers”, it is in the context of persons younger than Rosie who are yet to experience the full onset of puberty.
Professor G also confirmed Professor W’s opinion that alternative forms of testosterone administration by gel or patches would not be “as effective or appropriate” for Rosie.
The psychiatrist Professor N noted that the use of testosterone treatment may lead to irreversible change such as increased body hair, but she had discussed that with Rosie who understood the changes.
I am satisfied on the evidence that there is no alternative or less invasive treatment appropriate for Rosie in treating her gender identity disorder. In reaching that decision, I do note Professor W’s evidence, referred to above, that although the testosterone treatment will cause ovulation and menstruation to cease, the effect on the ovaries will be fully reversible if treatment is stopped, and Rosie’s fertility only temporarily impaired, again in a fully reversible way.
(c) the likely long-term physical, social and psychological effects on the child:
(i) if the procedure is carried out; and
(ii) if the procedure is not carried out;
(d)the nature and degree of any risk to the child from the procedure;
I have already described the effects of the proposed treatment. All the experts agreed, and it was the parents’ position, that Rosie’s psychological health and general welfare is at risk, and will continue to be, without it. I accept that.
I have cited above Rosie’s comments to her treating psychiatrist, Dr H, that she is “terrified of turning into a “curvaceous” woman”, that she hated the development of her breasts, and thought her life would end when her periods started. She also described identifying as a male for as long as she could remember. She believed that she was born the wrong sex. She told Dr H that her female body felts “foreign and strange”. She was able to identify that her transgenderism had been the cause of significant distress, depression and binge eating.
Rosie was referred by Dr H to a psychologist Mr B. His report was only attached to Dr H’s affidavit. No-one objected.
Mr B described Rosie’s self-reported history as consistent with gender identity disorder. He described her as reporting “psychological distress”, as evidenced by her statement to him that she was “embarrassed to be me”. Rosie disclosed to Mr B that she began to experience panic attacks in late 2009. She described a binge eating problem at around that time, as well as “low mood, increased appetite, [and] disturbed sleep”. She said that her first suicide attempt was in late 2009 when she took the Panadol capsules.
Rosie also disclosed to Mr B that since early 2010 she had engaged in “a bit of cutting” on her leg as a “release of anger”. She was unable to identify what it was that she was angry about and which caused her to act out in self-harm.
Mr B was satisfied that psychological testing of Rosie indicated no concerns regarding her intellectual functioning. In his view, her suicide attempts appear to have occurred in the context of distress associated with her gender dysphoria.
As noted already, Professor W’s evidence was that the benefits of the proposed treatment for Rosie would be “mainly psychological”. She would feel she was being taken seriously and supported in her desire to live as a male. She would also experience satisfaction from undergoing male sex development. She reported to Professor W that she would have increased ambition and “a greater will to live”.
The Family Report writer is an experienced Family Consultant, a psychologist attached to this Court, who was able to provide a broader assessment, beyond the medical and psychiatric aspects. She addressed Rosie’s views and needs, as well as key issues for the family associated with Rosie’s gender identity disorder. She also considered Rosie’s ability to cope with the physical and psychological issues arising from the proposed treatment, and the capacity of the family to cope with and support her through the process. The Family Consultant poignantly described Rosie’s experience over many years as “excruciating psychological pain over the gender issues she faced”, and that she had “suffered immensely with the contradiction of being in a female body”.
The Family Consultant’s evidence was that there was unlikely to be any benefit to Rosie of refusing and or delaying the treatment, considering her age and level of physical development. She stated that Rosie had considered the relevant issues already for many years and had in many respects lived as a male her whole life. She noted that Rosie was finding the anguish of living as a male in a female body “increasingly intolerable”.
Like the other professionals, the Family Consultant was significantly concerned about Rosie’s mental health and general welfare should the treatment not progress with some urgency, noting that “her need to move forward in her quest to establish a male identity is all consuming”.
The Family Consultant noted that at present Rosie “has no clear routine, binge eating, walking and pacing at will and irrespective of the hour.” And, while she appeared to have “high order intellectual ability”, her desire to commence the proposed treatment was dominating her life and facilitating her “avoidance of any planning for the future academically or career wise”. The Family Consultant noted that such plans were “crucial for an adolescent of her age and intelligence”.
In her professional opinion, if the application were refused, there would be a significant risk that Rosie would “further engage in self harming or suicidal acts”. To delay the process would not benefit her and would place her at the same risk. And, although there was a risk that the treatment may bring with it more issues for Rosie, the risks of not embarking on treatment were “far greater”.
Regarding Rosie’s ability to cope with the physical and psychological issues associated with the proposed treatment, including her capacity to make the changes necessary to live as a male, the Family Consultant said that while Rosie has “significant psychological issues which she needs to deal with”, if she receives the appropriate counselling, and it is consistent, her ability to deal with the changes “will be sufficient”.
The Family Consultant stressed the need for Rosie to be wholly supported by the professionals, her family, and a counsellor, as although Rosie anticipates her physical change in a “wholly positive light”, the actual global effect of the proposed treatment cannot be perfectly predicted. She strongly recommended that each family member engage in counselling to assist them through the process.
Rosie has shown some reluctance to counselling in the past. In the Family Consultant’s opinion, she is likely to be more open, once supported in her decision to transition to male, and the Family Consultant was satisfied she will be well encouraged and supported by her parents in that respect.
Rosie told Professor W that the result of being refused the treatment she desperately sought would be “unimaginably bad”, and that she would feel desperate and distressed. She envisaged that such a determination would likely result in her failing school. In Professor W’s opinion, the risk to Rosie of delaying or otherwise refusing the proposed treatment will be an “increased risk of self harm and a greater likelihood of a return to the eating disorder she experienced in the past”.
Professor G agreed with Professor W and the other experts that the proposed treatment was necessary for Rosie’s welfare.
According to Professor W, as Rosie’s hormone status changes she may experience “some emotional instability”, but her psychiatrist will be able to assist her. Her serum cholesterol and haemoglobin levels will be monitored, as testosterone can stimulate a rise. Her acne may worsen and she may require consultation and treatment from a dermatologist.
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.
I am confident that all of the evidence indicated that Rosie is capable of making an informed decision about the proposed treatment.
(h)If the child is incapable of making an informed decision about the procedure – that the child:
(i) is currently incapable of making an informed decision; and
(ii) is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future
Having found that Rosie is capable of making an informed decision, I do not need to consider this aspect further.
(i) Whether the child’s parents or carers agree to the procedure
Clearly the parents have been troubled by Rosie’s long-term suffering, and the difficulties that have ensued from time to time in their relationship with her. They have however been respectful and supportive of her need to transition to deal with her gender identity disorder. Both before and after the issue arose, they have sought out appropriate assistance for her, and have now engaged the finest medical experts to inform, advise, and support her and the family. In the final analysis, the family is unable to comprehend how any ensuing difficulties could be “any greater” than those already experienced.
While the mother and father separated in mid 2010, the Family Consultant reported that they are united in seeking this treatment for Rosie, and despite the enormous emotional and financial costs of these proceedings, their support is unwavering.
Rosie is very fortunate to have insightful parents, who love and respect her, and have been able to put her interests above their own, despite having to cope with her – at times – challenging behaviour, and the challenges of their own relationship breakdown.
Apparently some people close to the family and family members have recently been told of Rosie’s disorder. They too have responded supportively to her.
Rosie’s younger brother W supports her in her transition, although he has not been overly involved in the process. The Family Consultant noted that as Rosie, her behaviour, and her issues have tended “to dominate in the household”, with the family focus being predominately on her, at times W has missed out. He has been inclined to withdraw into his room and his own world. It is likely that counselling would benefit W, for his own sake, and to help him deal with the changes arising from Rosie’s treatment.
(f) That the procedure is necessary for the welfare of the child
For the reasons already given, the expert evidence is clear that the treatment to enable Rosie to live as a male is necessary for her welfare.
The Family Consultant encapsulated the evidence when she wrote that Rosie’s need for the process of becoming male to be commenced as soon as possible is “overwhelming”.
CONCLUSION
Rosie’s best interests are the paramount consideration in this case. In determining a child’s best interests, I must consider the factors set out in s 60CC of the Act. I have not addressed individual factors in detail in these reasons. Many are not relevant to the particular circumstances and issues of this case. Most pertinent are Rosie’s wishes, and the capacity of her parents to meet her needs and make decisions on her behalf. I am satisfied that the detailed reasons given above cover these, and any other relevant factors.
Every decision about a child carries a heavy weight of responsibility with it. An order that will result in a young person living in one gender when born into another carries a particular onus. That onus is considerably lightened in this case, by the level of expertise in those treating Rosie, the cautious approach towards treatment that they propose, the reversible nature of much of the treatment, Rosie’s unwavering views and her age, and the support of her parents who have exhibited a laudable capacity to put her interests ahead of their own.
In the course of the Family Consultant’s evidence, I made it clear that I would not make specific orders for Rosie to accept counselling in parallel to her treatment. My concern was that the orders could be difficult to implement if what could seem to be a condition of treatment might not be complied with at some point or another, for one reason or another.
It is important however that in explaining the orders to Rosie, her parents make clear to her the Court’s view, based on the expert evidence, that although she desperately seeks the changes she is about to experience, they will not solve every issue in her life. She has had to grapple with a complex range of issues, and new issues are likely to arise in the course of treatment. She needs to embrace the prospect of counselling as a positive support to her. Her family too deserve that support themselves, as well as the peace of mind that comes from knowing that she is being given every possible assistance.
I am satisfied that the orders sought are the orders that will best promote Rosie’s best interests.
ORDERS
The orders I propose, subject to submissions as to form, are as follows:
1.That the Mother and the Father shall be authorised to consent on Rosie’s behalf to treatment for her as follows:
(d) 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
(e) 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
(f) Any other hormonal and/or psychiatric or psychological treatment recommended by Rosie’s treating endocrinologist, psychiatrist and any other treating medical practitioners 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.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 28 January 2011.
Associate:
Date: 28 January 2011
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