Chief Executive of the Ministry of Social Development v Young Person X

[2013] NZHC 3066

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004621 [2013] NZHC 3066

BETWEEN

CHIEF EXECUTIVE OF THE

MINISTRY OF SOCIAL DEVELOPMENT Applicant

AND

YOUNG PERSON X Respondent

Hearing:	18 November 2013
Appearances:	P K Hamlin for Applicant A G Mahon Counsel to Assist A K Finnie for Respondent
Judgment:	20 November 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 20 November 2013 at 11.00 am

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v YOUNG PERSON X [2013] NZHC 3066 [20 November 2013]

[1]      X is 15 years old and has had a childhood in which neglect, abuse and trauma have predominated. X was born male but for some time has expressed a strong desire to live as a female and, in particular, to begin medical treatment to start the transition to that life.1  She is currently under the guardianship of the High Court, with the Chief Executive appointed the Court’s agent. The Chief Executive has applied for an order enabling X to commence the use of hormone blockers, a medically reversible treatment resulting in the cessation of masculinisation.

[2]      A number of professional advisers are involved in X’s care. Three of them, paediatrician,  Dr  John  Newman,  psychiatrist,  Dr  Caleb Armstrong  and  clinical psychologist, Ms April Trenberth, provided reports for the purposes of this application. In addition, there was a meeting between Dr Newman and Ms Trenberth in advance of the hearing.

[3]      However, by the time of the hearing there were indications that X may be ambivalent about beginning the proposed treatment.  In an updating report filed prior to the hearing counsel for X, Mr Finnie, relayed a conversation he had with X last week in which X showed markedly less enthusiasm for commencement of the hormone blocking treatment. Then on Thursday 14 November 2013 X absconded from the one-on-one placement to which she had been moved the day before.  As at the date of the hearing on 18 November she had still not been found.

[4]      In light of this development Mr Hamblin, for the Chief Executive, amended the application to seek only a permissive order that would enable such treatment to be commenced rather than the order originally sought that treatment be commenced. For the reasons that follow I declined to make the order sought, though only as an

interim position. The matter will be reviewed again next year.

1  In accordance with the practice adopted by most of the parties involved in X’s care, I use the

personal pronouns she and her when referring to X.

[5]      Dr Newman advocated the commencement of hormone blocking treatment so as to relieve X’s distress at the development of masculine characteristics. He thought that X’s reported ambivalence could be explicable either on the basis that X was uncertain about any kind of treatment at this stage or (more likely) that she had decided to pursue the unorthodox and less safe course of seeking oral contraceptives on the street, a course that Dr Newman had specifically counselled against. Although there had previously been concern to ensure that any treatment was started as early Dr Newman indicated that because of the stage that X has now reached in terms of physical development timing was not to be regarded as critical.

[6]      Psychiatrist, Dr Caleb Armstrong, who was been engaged at a relatively late stage as a result of the previously engaged psychiatrist being unavailable for the hearing, considered that X met the criteria for gender identity disorder, whilst acknowledging X’s other significant mental health and behavioural issues.

[7]      Clinical psychologist, Ms April Trenberth had previously expressed serious reservations  about  proceeding  with  the  proposed  treatment.  In  essence,  she considered  that  X’s  numerous  psychological  issues  arising  from  early  neglect, trauma and abuse underlie X’s gender identity issue and should have been addressed much earlier. She considered that addressing the gender identity issue through hormone blockers risked adding to X’s psychological problems rather than solving them.

[8]      Notwithstanding this view, at the meeting between Dr Newman and Ms Trenberth, agreement was reached that that X should commence the hormone blockers.  This agreement was recorded in a joint memorandum of counsel dated 15

November 2013. The agreement represented a significant change in Ms Trenberth’s position and at the hearing she explained that she had agreed to support the plan only because   she   viewed   the   outcome   as   a   fait   accompli,   given   X’s   apparent determination to pursue it, not because she agreed with it on clinical grounds.

[9]      Before me, however, Ms Trenberth expressed the view that X’s current ambivalence provided an opportunity to revisit the whole issue of whether hormone blockers should be introduced or whether a better outcome might be achieved by addressing his other problems through psychotherapy before embarking on hormone blocking treatment.

[10]     At the conclusion of this evidence I was doubtful that the permissive order being sought would be appropriate. There was uncertainty over what X actually wanted.   In addition, there was inadequate information as to when, how and by whom the ultimate decision to begin treatment would be made.

A further development

[11]     The issue was resolved for me with a development late in the day. Just before the afternoon adjournment Mr Finnie received from Child, Youth & Family a copy of a note said to have been written by X and left with  her caregiver prior to her absconding.  This note significantly altered my view of the case.  In it X apologised for leaving and expressed her gratitude for all that the caregiver had done for him. She concluded “I don’t want the blockers for now”.

[12]     In the face of an unequivocal statement of this kind I could not contemplate making an order that allowed non-essential medical treatment for which consent was needed.  Counsel and the witnesses accepted this view.

[13]     However, it would be premature to reach a final decision at this stage.  X is still missing and it is unknown what her view will be when she is finally located. Further, Dr Newman has not had the benefit of a report by psychologist Pania Thompson which Ms Trenberth referred to in reaching her conclusions.  I therefore make the following orders:

(a)       As an interim step I decline to make the application sought at this stage;

(b)      The application is to be adjourned to a date in February or March

2014 to be allocated by the Registry;

(c)       I will have a telephone conference with counsel at 9 am on Monday,

2 December 2013 to discuss what further steps are to be taken in advance of the next hearing.   For the purposes of that telephone conference  Mr  Finnie  will  file  a  further   updating  report  and Mr Hamlin will file a memorandum outlining proposed arrangements;

(d)      I direct that Pania Thompson’s report of 3 July 2013 be released to

Dr Newman;

(e)       I make an order under s 133(2) Care of Children Act 2004 appointing

Ms Trenberth for the purposes of this proceeding.

P Courtney J