Re: Spencer
[2014] FamCA 310
FAMILY COURT OF AUSTRALIA
| RE: SPENCER | [2014] FamCA 310 |
| FAMILY LAW – CHILDREN – MEDICAL PROCEDURE – where medical experts have diagnosed the child with gender identity dysphoria – where the child has maintained the wish to be a boy since early childhood – where the child now wishes to commence stage two treatment – consideration of whether the child is Gillick competent – where the child’s treating medical experts and parents support the child commencing stage two treatment - consideration of whether it is within the Court’s power to make the declaration sought by the parents – where declaration made as to the child’s Gillick competence. |
| APPLICANT: | The Mother |
| RESPONDENT: INDEPENDENT CHILDREN’S LAWYER | The Hospital |
By Court Order the File Number is suppressed
| DATE DELIVERED: | 8 April 2014 |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 7 March 2014 |
REPRESENTATION
By Court Order the names of counsel and solicitors have been suppressed.
Orders
That pursuant to Rule 1.12 of the Family Law Rules (“the Rules”) the requirement pursuant to Rule 4.10 of the Rules that the Initiating Application filed 28 February 2014 be served on the prescribed child welfare authority be dispensed with.
That the full name of SPENCER (“the child”) born … 1996, the child’s family members and their occupations, the Hospital, the Independent Children's Lawyer, the child’s medical practitioners, the child’s school, this Court file number, the State of Australia in which the proceedings were initiated, the names of the parents' lawyers, and any other fact or matter that may identify the child shall not be published in any way, and only anonymised Reasons for Judgement and orders (with cover sheets excluding the registry, file number, and lawyers' names and details, as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 for provision to the treating medical practitioners and to enable their execution, and one cover sheet of Reasons for Judgement that includes the file number and lawyers' names.
That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.
IT IS DECLARED IN RESPECT OF THE CHILD SPENCER that she is competent to give informed consent to the following treatment for Gender Identity Dysphoria:-
(a)That under the guidance of Spencer’s treating medical practitioners including but not limited to Dr T (Paediatrician) and Dr P (Consultant Psychiatrist), Spencer undergo treatment using oral testosterone (Andriol) capsules 40mg daily for one month and then 40mg twice daily for two months, with the frequency to be adjusted as necessary;
(b)That under the guidance of Spencer’s treating practitioners as set out at order 4(a) herein, after the first two months of treatment, Spencer commence monthly intramuscular injections of Sustanon 250 in a dose of 0.5ml monthly, to be increased to 1ml monthly depending on any adverse side effects experienced by Spencer;
(c)That under the guidance of Spencer’s treating practitioners as set out at order 4(a) herein and if considered appropriate by Spencer’s treating practitioners, Spencer be treated using long-acting Reandron 1000 injections every three months and continue with this treatment being monitored to adjust the frequency as is necessary; and
(d)Any other hormonal and/or psychiatric or psychological treatment as recommended by Spencer’s treating paediatrician and psychiatrist from time to time.
That the Court shall provide a sealed copy of these Orders to the father, as soon as practicable by forwarding same to him by ordinary registered post to C/- the applicant’s solicitors.
That all applications shall be otherwise dismissed and the matter be removed from the list of cases awaiting determination.
That the Independent Children’s Lawyer shall explain the Orders to Spencer as soon possible and shall be discharged after that.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Spencer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA |
By Court Order the File Number is suppressed
| The Mother |
Applicant
And
| The Hospital |
Respondent
REASONS FOR JUDGMENT
Spencer is aged 17 years. Although born biologically female, Spencer has wished since early childhood to live as a boy. Spencer has been diagnosed with gender identity dysphoria. He now wishes to commence treatment to begin the process of masculinisation through the administration of testosterone (“stage two treatment”).
I am asked to determine whether or not Spencer is legally competent to consent to the stage two treatment and if so, to make a declaration as to such competence, and if not, then to authorise his mother to consent to that treatment on his behalf.
BACKGROUND
Spencer is the middle child of the mother and the father. He has an older sister, S (aged 21 years) and a younger sister H (aged 15 years).
Spencer’s parents separated in 2011 and he has lived with his mother since that time. Spencer spends time with his father approximately once a month at his father’s home. Spencer’s father is supportive of the proposed treatment and has sworn an affidavit confirming his support for it.
Spencer was a healthy baby who met all of his developmental milestones. At the age of approximately three years Spencer preferred to wear shorts and T-shirts as opposed to dresses and preferred to play with the boys at his kindergarten. He exhibited a preference for playing with “building things” and “workman tools”.
At primary school Spencer played with children of both genders and progressed well academically. He also enjoyed playing basketball.
In Year 8 Spencer became resistant to attending school and on occasion, would refuse to leave the house. As a consequence, Spencer had a large number of absences from school. During this time Spencer started exhibiting suicidal tendencies.
In 2010 Spencer was referred to a psychiatrist for treatment for depression and anxiety. He was prescribed Seroquel medication to help with his anxiety. He did not react well to Seroquel and his mother sought a second opinion from another psychiatrist, Dr P.
By 2011, when Spencer was in Year 10, his mother described him as having become “completely disengaged and disinterested in school to the point that he would hardly ever get out of bed to attend school”. He began attending upon a psychologist, Ms W. During the course of his treatment by Ms W, Spencer communicated that he identified as a male.
By July 2012 Spencer had informed his mother that he wanted to live life as a male and be referred to as “Spencer”. Following his disclosure to his mother, his mother observed Spencer to be “less angry and agitated and was getting along with his family much better”.
In August 2012 Spencer’s school was notified of his decision to live life as a male. His school was supportive of that decision and arrangements were made for him to have a separate change-room for sport and the like.
In 2013 Spencer completed Year 11 through distance education.
Spencer commenced Year 12 in 2014. However, after the first few weeks of school Spencer became “disengaged and depressed” due to his feminine appearance and his anxiety at not having commenced testosterone treatment. As a result, Spencer stopped going to school. This application was filed to enable Spencer to commence testosterone treatment without further delay so that the disruption to his final school year may be minimised. Although separated, Spencer’s parents are united in their support for him to commence stage two treatment. The application is also supported by the Independent Children’s Lawyer.
THE PROPOSED TREATMENT
Spencer has been receiving specialist medical care for gender identity dysphoria since June 2012. At that time his psychologist, Ms W referred Spencer to Dr P, psychiatrist at the Hospital for assessment. Dr P works as a child and adolescent psychiatrist and psycho-therapist, and has significant experience working with children and adolescents who have gender identity development disorders.
Since September 2012, Dr P has seen Spencer and his mother on approximately eight occasions.
Dr P has assessed Spencer as a young person who meets the criteria for a formal diagnosis of gender identity disorder of adolescence, transexual type, female to male.
That diagnosis was confirmed by Dr K, consultant child and adolescent psychiatrist who provided a second psychiatric opinion upon referral of Spencer by Dr P. Dr K assessed Spencer and his mother on 15 August 2013. In her report dated 3 December 2013 Dr K confirmed that Spencer’s presentation is consistent with a diagnosis of gender identity dysphoria in adolescents (DSM-5).
Spencer has been treated by Dr T, adolescent physician, in relation to his gender identity dysphoria. Dr T proposes to treat Spencer with testosterone to masculinise his body. This is described as stage two treatment.
In her report dated 29 November 2013 Dr T states that the long-term physical, social and psychological effects of stage two treatment include:-
(a)Development of hair in the pubic area, armpits and on the beard area of the face;
(b)Changes in facial shape and appearance;
(c)Irreversible changing of the voice due to growth of the larynx and lengthening of the vocal chords;
(d)Muscle development;
(e)Increased oil production by the skin which may result in acne;
(f)Growth of the clitoris and an increased number of erections;
(g)Stopping the development of ova in the ovaries with loss of fertility;
(h)Stimulation of bone mineral density;
(i)Testosterone also affects behaviour by stimulating more assertiveness (sometimes aggression) and sexual desire.
The stage two treatment Dr T proposes to administer to Spencer is as follows:-
(a)Oral testosterone (Andriol) capsules 40 mg daily for one month and then 40 mg twice daily for two months, with the frequency to be adjusted as required;
(b)After the first two months of treatment, monthly intramuscular injections of Sustanon 250 in a dose of 0.5 ml monthly, to be increased to 1 mL monthly;
(c)At a later stage, Reandron 1000 injections every three months.
The proposed treatment will be monitored by Dr T and Dr P.
Dr T stated that if treatment is not carried out on Spencer his emotional state would deteriorate severely and there would be significant risk of self-harm. Further, Spencer’s physical appearance would remain feminine with menstruation continuing. Dr T postulated that this would most likely be “intolerable” for Spencer who has an affirmed gender identity that is clearly and unambiguously male.
MATERIAL RELIED UPON
The applicant relied upon the following material:
·Initiating Application filed 28 February 2014;
·Affidavit of L filed 28 February 2014;
·Affidavit of Dr T filed 28 February 2014;
·Affidavit of Dr P filed 28 February 2014;
·Affidavit of Dr K filed 28 February 2014;
·Affidavit of M filed 4 March 2014;
·Affidavit of J filed 7 March, 2014.
LEGAL PRINCIPLES
Section 60B(1) of the Family Law Act1975 (Cth) (“the Act”) 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 ss 60CC(2) and (3) of the Act.
Generally it is within the scope of a parent’s responsibility to consent to medical treatment for and on behalf of their child. However, there are certain procedures that fall beyond that responsibility and require determination by the Court, as part of the Court’s parens patriae or welfare jurisdiction (Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”).
Section 67ZC of the Act was inserted in 1995 specifically providing that the Court has jurisdiction to make orders relating to the welfare of children. The children’s best interests remain the paramount consideration.
The procedure to be followed with respect to applications requiring Court authorisation of medical procedures is set out at Division 4.2.3 of the Family Law Rules 2004 (“the Rules”).
Rule 4.09(1) provides that evidence must be given that satisfies the Court that the proposed medical procedure is in the best interests of the child.
The Full Court in Re Jamie (2013) FLC 93-547 (“Re Jamie”) confirms that if a proposed treatment falls within the ambit of Marion’scase, and if the child is not Gillick competent, the proposed treatment must be first authorised by the Court.
The Full Court considered what is known as stage two treatment of gender identity disorder in the decision of Re Jamie. The issues considered therein included whether the stage two treatment is a medical procedure for which consent lies outside the bounds of parental responsibility and thus requires 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.
In Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, it was said by Lord Scarman at 88-90:-
In the light of the foregoing 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. Emergency, parental neglect, abandonment of the child, or inability to find the parent are examples of exceptional situations justifying the doctor proceeding to treat the child without parental knowledge and consent: but there will arise, no doubt, other exceptional situations in which it will be reasonable for the doctor to proceed without the parents’ consent.
The Full Court in Re Jamie determined that a Gillick competent child could consent to such 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.
The next issue considered by the Full Court in Re Jamie was who should determine the question of Gillick competence. It was held by the Full Court that due to the nature of the stage two treatment, it is a matter for the Court to determine whether a child is Gillick competent. Following the reasoning of the High Court in Marion’s case, the Full Court held that this is so for two reasons. First due to the risk of making the wrong decision as to the child’s capacity to give consent and secondly, because the consequences of a wrong decision are particularly grave.
With respect to stage two treatment, the Full Court held that once the question of Gillick competence was established, the Court would have no further role.
As to how such proceedings are to be conducted, at paragraph 139 of the judgment, Bryant CJ held that in an application with respect to Gillick competence, the material in support would not need to be as extensive as an application for the Court to authorise treatment. Further, her Honour stated that she could “see no reason why any other party needed to be involved, absent some controversy. It would be an issue of fact to be determined by the Court on the material presented.”
THE HEARING
At the commencement of the hearing I raised with the parties the question of whether the application and documents in support should be served upon the relevant government department (being the prescribed child welfare authority) in accordance with Rule 4.10 of the Family Law Rules. Both senior counsel for the applicant and the Independent Children’s Lawyer submitted that that requirement should be dispensed with in accordance with the observations made by Bryant CJ at paragraph 139 of Re Jamie (referred to above).
Having regard to the comments of the Full Court in Re Jamie and the material filed in support of the current application (to which I will refer in greater detail later in this judgment), I am satisfied that it is appropriate to dispense with the requirement of Rule 4.10.
IS SPENCER GILLICK COMPETENT?
The evidence of Spencer’s treating doctors overwhelmingly supports a finding that Spencer is Gillick competent.
Dr P, who has treated Spencer since September 2012 and has had approximately eight appointments with him stated at paragraph 7 of his report dated 27 December 2013 as follows:-
[Spencer] certainly agrees to undertake treatment…he has been seeking treatment for over the period of the last year. He has been consistent and insistent in his request to receive testosterone treatment.
I believe that [Spencer] is able to make an informed decision about undertaking treatment with testosterone.
Although he had previously been experiencing significant depression and feeling anxious and unsettled in social situations, I believe that he does have an age-appropriate mature understanding of the treatment required.
I have been asked to consider whether [Spencer] meets the criteria for decision-making in respect of his own health which would be consistent with the ‘Gillick competent’ criteria. I understand that this requires that the young person have a high level of maturity and insight such that they are able to make their own decision in relation to such matters as medical treatment …
I believe that [Spencer] does have the insight and maturity to understand the nature of the treatment with testosterone as proposed. He is aware of the perceived positive changes that will result with his bodily development: that his muscle bulk will increase, that his voice will change and that he will have a masculine pattern of body hair. He is aware that his bone density will increase. He is aware that commencing testosterone will not of itself reduce the size of his breasts, and he would like to seek surgery at some time in the future to do so.
I believe that he is aware that testosterone treatment will affect the development of his ovaries and that he will not produce ova (eggs) from his ovaries whilst on testosterone treatment.
Later in his report, Dr P observed:-
[Spencer] has done a lot of research using the web, some resources provided by his mother and discussions with myself and medical staff at the hospital, into the nature of gender identity disorder and the hormonal and other treatments available. I believe he does understand the effect of commencing Zolidex treatment and testosterone treatment and the respective potential benefits and risks.
At page 8 of the report Dr P noted:-
He is aware that there are some risks associated with testosterone treatment including a remote possibility of liver damage and the effect upon his reproductive capacity. He has been able to discuss at an earlier stage the possibility of harvesting ova later and should he wish to have a child using his own genetic material. … I believe [Spencer] does express a very clear and consistent opinion that he wishes to commence testosterone treatment, understanding that this is not an absolutely irreversible course of action. He has been unwavering in his request for testosterone treatment over recent times. [Spencer] acknowledges that other people may have changed their mind about transgender treatment and expressed regret but that he cannot conceive that this would happen to him.
Spencer attended Dr K for a second psychiatric opinion upon the referral of Dr P. In relation to the issue of Spencer’s “Gillick competence”, Dr K made the following observations:-
[Spencer] appears to be of average intelligence. [Spencer] 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 [Spencer] is Gillick competent and is capable of making an informed decision about the treatment. He understands that the stage two treatment is only partially reversible and that changes like deep voice and facial and body hair will persist should he stop the treatment. I believe [Spencer] has also been given opportunity to discuss fertility with the appropriate specialist…. [Spencer] is capable of making an informed decision.
Spencer’s treating paediatrician Dr T has also provided a report which confirms her assessment of Spencer’s competence to consent to the stage two treatment. In her report dated 29 November 2013 Dr T states:-
[Spencer] is very well-informed with regards to his treatment options and even before seeing myself at the hospital he had done much of his own research into the available options for masculinisation using testosterone. [Spencer] has been the driving force for commencement of assessment and treatment and initiated contact with medical staff. He is very keen to commence testosterone treatment as soon as possible.
[Spencer] is Gillick competent to make the decisions regarding commencement of stage two [testosterone] treatment. This has been demonstrated during our consultations where [Spencer] has engaged in sophisticated discussion around the issues of his gender identification, fertility preservation and the long term consequences of treatment both in terms of physical and psychological health and wellbeing. [Spencer] is aware that one of the options for transitioning is to do so socially without utilising hormonal treatment. [Spencer] expresses that this will not be tolerable for him as the incongruence between his gender identity and his physical appearance causes significant distress. He is an intelligent young man about to complete his VCE and has been particularly resourceful in gaining knowledge of hormonal options and their physiological effects. He understands the benefits and possible side effects of treatment including the possibility of regret in the context of irreversible physical changes from testosterone treatment.
On the basis of the evidence of Spencer’s treating medical practitioners, as well as the opinion of Dr K (who provided a second opinion) I am satisfied that Spencer is Gillick competent.
In light of that finding, I need not consider the matters raised in paragraphs 2 and 3 of the applicant’s Initiating Application.
POWER TO MAKE DECLARATION
Although not raised by senior counsel for the applicant, Finn J in Re Jamie questions the power of the Court to make declarations such as that sought by the applicant in this case.
At paragraph 190 of her judgment in Re Jamie, Finn J notes:-
In my view, it would not be in accord with the reasons of this court, or indeed within any power contained in the Act, for it to make the declaration sought by the parents in their amended notice of appeal. Nor would the order which they seek in the alternative to the declaration be in accord with the reasons of any member of this court.
The declarations sought by the parents in Re Jamie were that:-
(i)the treatment for the medical condition known as childhood gender identity disorder is not a special medical procedure with attracts the jurisdiction of the Family Court of Australia under s 67ZC of the Act; and
(ii)the parents of “Jamie” do not require permission from the Family Court of Australia or any other court of competent jurisdiction to authorise such treatment for their child as they may be advised is appropriate.
The issue of the Court’s power to grant declaratory relief has been considered in a number of cases, including Smith and Smith (1979) FLC 90-642 in which Lindenmayer J held that the Court had no power to grant declaratory relief sought and Duroux and Martin (1993) FLC 92-432 where the Full Court questioned the power to make a declaration with respect to paternity.
In Re Ross Jones; Ex parte Beaumont (1979) 141 CLR 504, a matter concerning the power to make declarations with respect to partnership interests, Gibbs J observed at page 78,103:
Once a proceeding is within the jurisdiction of the Family Court, the power of that court to make suitable orders for the disposition of the matter is very wide. It is hardly an exaggeration to say that if the court has jurisdiction in the present case, it can make whatever orders it regards as appropriate: see ss 34(1) and sec. 80(k).
The question of a court’s power was considered by Gaudron J in Knight v FP Special Assets Ltd (1992) 174 CLR. At paragraph 2 of that judgment Gaudron J said:-
It is contrary to long-established principle and wholly inappropriate that the grant of a power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.
Section 64B(2)(i) empowers the Court to make a parenting order dealing with any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Section 67ZC of the Act provides that the Court has jurisdiction to make orders relating to the welfare of children. In deciding whether to make such orders, the court must regard the best interest of the child as the paramount consideration.
The making of a declaration such as is sought by the applicant carries with it a heavy weight of responsibility. A declaration as sought will open the door to a new phase in Spencer’s life; the pathway to the physical transition to his affirmed gender will begin.
I am satisfied, having regard to the observations of Gaudron J referred to above, that the power “to make orders relating to the welfare of the children” includes the power to make a declaration such as is sought by the applicant.
Further, I am satisfied that it is in Spencer’s best interests that I make that declaration. The evidence before me from his treating doctors and his mother indicates that to do otherwise would gravely compromise Spencer’s health and wellbeing.
PUBLICATION
Orders were sought by the applicant to protect Spencer’s privacy. I am satisfied, particularly having regard to the deeply personal issue before the Court as well as Spencer’s history of anxiety and depression that such orders are appropriate in this matter. It is important that the issues around his gender identity are not divulged to the world at large.
Accordingly, I have made orders referring to him only as Spencer. The identities of his siblings and parents are not disclosed. Further his hospital, treating doctors, the lawyers involved in the matter and all other identifying features shall not be published.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 8 April 2014.
Associate:
Date: 8 April 2014
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