Gender dysphoria treatment: Capacity to consent and the role of the court

Re: Martin [2015] FamCA 1189 (23 December 2015)

Summary

The parents of a 16 year old child (identifying as male) sought a declaration that their son was competent to consent to stage two cross-sex hormone treatment for gender dysphoria. Justice Bennett of the Family Court of Australia followed the approach set out by the Full Court of the Family Court in Re: Jamie [2013] FamCAFC 110 (Re Jamie) of considering whether the child was competent to consent to the treatment according to the test in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. While considering herself bound by Re Jamie, her Honour expressed strong criticism of the Full Court’s decision and of the current position under Australian law which requires a court authorisation before stage two treatment for gender dysphoria can be undertaken.

Facts

The application was brought by the child’s mother and father and was supported by the child’s treating medical practitioners, including a paediatrician and adolescent medicine practitioner, and a consultant child and adolescent child psychiatrist. The evidence was uncontested and both the parents and treating medical practitioners were supportive of the child undergoing stage two testosterone hormone therapy treatment.

The parents gave evidence that the child identified as male and had expressed “stereotypically male” characteristics and interests from an early age. Further, the parents described the child as becoming “introverted, a recluse, depressed and dark” around the age of 12, and telling his mother in mid-2014 that he was assigned as a girl at birth but felt that he was a boy. Evidence was also given of the child having expressed suicidal ideations. In late 2014, the child was diagnosed with and underwent counselling for gender dysphoria. The child’s psychiatrist attested to the child having “a strong persistent and enduring experience of himself as a boy at his core” and being acknowledged by his family, friends and the broader community as male.

As a result, the child wished to undergo stage two treatment with testosterone to facilitate his physical transition from female to male. Both doctors agreed that the treatment sought was necessary for the ongoing welfare of the child and that without treatment the child would be at risk of increasing depression and suicidal ideation.

Decision

Justice Bennett noted that the treatment for gender dysphoria is generally administered in two stages, the first being reversible and the second involving some irreversible elements. In this case the hormone treatment being sought was designed to bring about physical changes from female to male – notably the development of male secondary sex characteristics such as the growth of facial and other body hair, masculinisation of voice and appearance, and a suppression of the development of female organs and characteristics.

Following the decision of the Full Court in Re Jamie, her Honour noted that the position under Australian law is that while the first stage of gender dysphoria treatment does not require court authorisation provided there is no controversy between the child, the parents and the relevant medical practitioners, the irreversible nature of the second stage of gender dysphoria treatment means that the child must be Gillick competent to consent to the procedure or, if such competence is lacking, that the court (rather than the parents) must give consent.

Her Honour noted that in accordance with the principles set out in Gillick, the court’s assessment of competency must be based upon whether the young person has the requisite intelligence and appreciation of the contemplated procedure to be able to give informed consent. In assessing whether to make the declaration sought in this instance, her Honour took into account the following:

• the fact that the child met the diagnostic criteria for gender dysphoria with an “affirmed male gender identity”;
• evidence given by the child’s psychiatrist that the treatment would lead to various improvements in the child’s social and psychological experience;
• evidence given by the parents and doctors regarding the child’s capacity to consent to the treatment sought, in particular that which addressed the child’s understanding of the risks inherent in the treatment; and
• the fact that there was no less invasive treatment that would allow the masculinisation of the child’s body.

On this basis her Honour found that the child had the requisite intelligence and understanding of the procedures involved to give his informed consent within the meaning of Gillick and that it would be in the child’s best interests to make the declaration sought.

Commentary

While the court’s decision in this case was based on uncontested evidence and followed the existing law, her Honour raised an important question as to the role of the court in such cases. In particular, her Honour queried whether the requirement set out by the Full Court in Re Jamie that the court must consider a child’s capacity to consent to stage two gender dysphoria treatment is based on a proper reading of the High Court of Australia’s decision in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion’s case) which accepted Gillick into Australian law.

Her Honour was critical of the Full Court’s reasoning in Re Jamie, stating that it equated stage two gender dysphoria treatment (which she considered to be a “therapeutic” procedure) with the “non-therapeutic” sterilisation of a child who could not consent to such irreversible treatment at issue in Marion’s case. Her Honour noted that in apparent reliance on the plurality’s decision in Marion’s case, the Full Court in Re Jamie concluded that because stage two gender dysphoria treatment is “irreversible medical treatment” and “there is a significant risk of the wrong decision being made as to the child’s capacity to consent to treatment and where the consequences of such a wrong decision are particularly grave…”, the question of a child’s Gillick competency to consent to it remains a question for the court. Her Honour considered this to be an incorrect reading of Marion’s case and noted that the Full Court’s conclusion was contradictory:

On the one hand, the Full Court accepted that gender dysphoria in adolescents and adults is a recognised psychological or psychiatric condition for which there is a recognised regime of therapeutic treatment. On the other hand, the Full Court decided that there was a need for the court to authorise and consent to the treatment in the event of a finding that the young person lacks Gillick competency. As Marion’s case makes clear, and as the Full Court in Re Jamie found, the treatment of a disease (including a psychiatric condition) does not call for Court authorisation.

Her Honour suggested that given that the treatment of a disease (including a psychiatric condition such as gender dysphoria) does not require court authorisation, the only relevant question should be whether the child has capacity to consent or whether the parent(s) should be asked to do so (a question which, she suggested, can be answered by the medical practitioners who are accustomed to making such judgments on a daily basis).

Her Honour further noted in relation to the procedure for assessing Gillick competency set out by the Full Court in Re Jamie, which requires the court to make a declaration “as an issue of fact to be determined by the court on the material presented”, that in reality it was difficult to see what the court would do other than to approve the treatment which is explained and recommended to it by competent and qualified clinicians. Her Honour suggested that in a case such as this, where the application was uncontested and uncontroversial, it was difficult to see how the interests of the child were served by compelling the child’s parents to make an application to the court to approve the treatment being recommended. Her Honour also criticised the emotional and financial costs for families, children and medical practitioners in requiring such applications to be made.

It is worth noting that this is not the first time the court has felt compelled to query its role in such applications. In Re Jamie itself, Chief Justice Bryant noted that “[i]t seems harsh to require parents to be subject to the expense of making application [sic] to the court with the attendant expense, stress and possible delay when the doctors and parents are in agreement but I consider myself to be bound by what the High Court said in Marion’s case…”. Based on Justice Bennett’s criticisms of the Full Court’s interpretation of Marion’s Case, it seems that further consideration of these issues by another appeal to the Full Court or legislative intervention may be warranted.

The full text of the decision can be found here.

Emily Rich, Solicitor at King & Wood Mallesons.