Re: Matthew [2018] FamCA 161 (16 March 2018)

Last Updated: 25 January 2019

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order File Number is suppressed

REPRESENTATION



By Court Order the names of solicitors have been suppressed

ORDERS

IT IS DECLARED

1. That in the circumstances of this case, where the subject child has been diagnosed as suffering from Gender Dysphoria, where treating practitioners have agreed that the subject child is Gillick competent, where it is agreed that the proposed treatment is therapeutic and where there is no controversy, no application to the Family Court is necessary before Stage 3 treatment for Gender Dysphoria can proceed.

IT IS ORDERED

2. That the application filed 30 November 2017 is otherwise dismissed.
3. That the full name of Matthew, his family members, his hospital, his medical practitioners, his school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of Matthew’s parents’ lawyers, and any other fact or matter that may identify Matthew, shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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.
4. That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.

Note: The form of the order is subject to the entry of the order in the Court’s records.



IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Matthew has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).



Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FILE NUMBER: By Court Order File Number is suppressed

Applicants

REASONS FOR JUDGMENT

1. The application before the Court relates to proposed surgery for a minor child known as Matthew, aged 16 years, who was born genetically female but identifies as male. A double mastectomy is proposed.
2. M’s parents have applied to the Court asking for a finding that he is competent within the parameters of Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112 (“Gillick competent”) to consent to the proposed Stage 3 treatment.
3. It is necessary to explain the distinction between this application, and the application which was ultimately dealt with by the Full Court in Re: Kelvin (2017) FLC 93-809 (“Re: Kelvin”) where the Full Court held that it was not necessary for an application to be made to the Family Court in relation to the competence of a child where the treatment proposed fell into the category of Stage 2 treatment for Gender Dysphoria.
4. Stage 2 treatment, or “gender affirming hormone treatment”, for a child with Gender Dysphoria is accepted to involve the use of either oestrogen to feminise the body in those who have a female gender identity, or the use of testosterone to masculinise the body in those who have a male gender identity. Stage 2 treatment does not involve surgical intervention.
5. This application involves Stage 3 treatment which is surgical in nature. Stage 3 treatments include, but are not limited to:
   1. Chest reconstructive surgery (also known as top surgery);
   2. Phalloplasty;
   100. Hysterectomy;
   4. Bilateral salpingectomy;
   5. Creation of the neovagina; and
   6. Vaginoplasty.
6. The applicants in the present case acknowledge that the treatment proposed is Stage 3 treatment and thus not specifically within the decision in Re: Kelvin. Thus the question which arises is whether it is necessary for the Court to make a finding that the subject child is Gillick competent before the treatment can proceed.
7. An Independent Children’s Lawyer (“ICL”) was appointed for Matthew.
8. The Department was served with the application and given the opportunity to intervene in the proceedings, but the Department advised the Court that they did not wish to be heard. An email sent by the solicitor for the applicants to the Department on 1 March 2018 stated, inter alia:

Her Honour has listed [this matter] for hearing before her on 14 March 2018.

She has indicated that she considers the questions to be (in this order):

1. Whether gender dysphoria is a medical condition?

2. Whether the subject child has gender dysphoria?

3. Is the treatment therapeutic?

4. Is there a controversy?

5. Must the application be made to the court?

Her Honour has indicated that one of her primary considerations will be whether the treatment is therapeutic. I think it is fair to say that it appears likely that the application will be dismissed if her Honour determines that the treatment is therapeutic.

I am writing so that you are fully apprised of the position, in case the Secretary wishes to appear at the hearing on 14 March.

9. On 7 March 2018 a representative of the Department responded, inter alia, “I am instructed that, notwithstanding this development, the Secretary will not be seeking to intervene in these proceedings.”
10. The Court was assisted by comprehensive written submissions on behalf of the applicants and the ICL.

THE EVIDENCE

11. The applicants relied on an affidavit by each of them, as well as affidavits of Dr D (plastic and reconstructive surgeon), Dr S (psychiatrist), Dr Y (endocrinologist), Associate Professor R (paediatrician) and Dr E (psychiatrist).

CONSIDERATION

12. Logically, the questions to be determined in this application are these:
    • Is Gender Dysphoria a medical condition?
    • Does the subject child have Gender Dysphoria?
    • Is the treatment prescribed therapeutic?
    • Is there a controversy?
    • If the treatment is therapeutic, is it necessary for an application to be brought to the Family Court, seeking a finding that the child is Gillick competent, before the proposed treatment can proceed?
13. Some of these questions have been posed and answered by the High Court and successive Full Courts but logic dictates that the questions be formally posed and answered.

IS GENDER DYSPHORIA A MEDICAL CONDITION?

14. The Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5) defines Gender Dysphoria as “the distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender. Although not all individuals will experience distress as a result of such incongruence, many are distressed if the desired physical interventions by means of hormones and/or surgery are not available.”
15. In Re: Jamie [2013] FamCAFC 110; (2013) FLC 93-547 (“Re: Jamie”), one of the questions posed to the Full Court was “Is childhood gender identity disorder a bodily malfunction or disease as defined in Marion’s Case?” In answering that question, Bryant CJ stated, at paragraph 69:

Gender identity disorder [as it was referred to at the time] is a psychological condition identified in DSM-IV (and the new DSM-5, published May 2013). It may be that in time to come, transsexualism will no longer be described as a disorder, but for the time being, and for the foreseeable future, the weight of professional opinion is that it represents a particular category of pathology or mental illness. [Footnotes omitted]

16. Her Honour also stated, at paragraphs 97 – 98:

It is undoubtedly the case that the majority in Marion’s case were speaking of medical treatment seeking to address disease or malfunctioning of organs. It is conceivable, therefore, that the majority did not have in contemplation at all that a psychiatric disorder would fall within a group of cases in which the court’s authorisation for treatment would be required. However I see no reason to limit their observations to a physical disease, particularly as Brennan J directly addressed the application of the principle to psychiatric disorders and considered it therapeutic provided the treatment is appropriate for and proportionate to the purpose for which it is administered.

Thus where the question is whether the treatment relates to a disease or malfunctioning of organs, including psychological or psychiatric disorders, then, in my view, if the treatment is in response to a disorder, even a psychological or psychiatric one, it is administered for therapeutic purposes.

17. Also in Re: Jamie, Finn J stated that nothing in the consideration of the majority in Marion’s case could be taken as limiting their observations to only physical, as opposed to psychiatric or psychological, disorders.
18. In Re: Kelvin, it was an agreed fact in the stated case that Gender Dysphoria is a medical condition and the Full Court was not required to determine that issue.
19. It is an established fact that Gender Dysphoria is a medical condition.

DOES THE SUBJECT CHILD HAVE GENDER DYSPHORIA?

20. It follows that if Gender Dysphoria is a defined psychological disorder, then a diagnosis of Gender Dysphoria in each particular case must be made by an appropriately qualified medical practitioner.
21. In relation to Matthew, Dr S, who is a Consultant Psychiatrist has made a diagnosis and sworn an affidavit in these proceedings.
22. I am satisfied that Matthew has Gender Dysphoria.

IS THE PROPOSED PROCEDURE THERAPEUTIC?

23. In Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 (“Marion’s Case”), the majority in the High Court, Mason CJ, Dawson, Toohey and Gaudron JJ, dealing with a procedure that would result in the sterilization of an intellectually disabled child, said:

But first it is necessary to make clear that, in speaking of sterilization in this context, we are not referring to sterilization which is a by-product of surgery appropriately carried out to treat some malfunction or disease. We hesitate to use the expressions “therapeutic” and “non-therapeutic”, because of their uncertainty. But it is necessary to make the distinction, however unclear the dividing line may be. [Emphasis added]

24. In a separate judgment in Marion’s case, Brennan J stated:

It is necessary to define what is meant by therapeutic medical treatment. I would define treatment (including surgery) as therapeutic when it is administered for the chief purpose of preventing, removing or ameliorating a cosmetic deformity, a pathological condition or a psychiatric disorder, provided the treatment is appropriate for and proportionate to the purpose for which it is administered. “Nontherapeutic” medical treatment is descriptive of treatment which is inappropriate or disproportionate having regard to the cosmetic deformity, pathological condition or psychiatric disorder for which the treatment is administered and of treatment which is administered chiefly for other purposes. [Emphasis added]

25. The above passage from Brennan J’s judgment in Marion’s case was cited with approval by the majority in Re: Kelvin.
26. In Re: Kelvin, Ainslie-Wallace and Ryan JJ referred to the decision in Re: Jamie and said:
    210. Although it was submitted by the public authority in Re Jamie that the proposed treatment to be administered in stages 1 and 2 was not to address a malfunction or disease of the body, and, consistent with Marion’s case, was thus non-therapeutic, the Court found that Gender Identity Disorder [as it was referred to at the time] is a psychological condition recognised in both the DSM-IV and DSMV. Bryant CJ said:
         98. Thus where the question is whether the treatment relates to a disease or malfunctioning of organs, including psychological or psychiatric disorders, then, in my view, if the treatment is in response to a disorder, even a psychological or psychiatric one, it is administered for therapeutic purposes. ...
    211. So too at [176] Finn J considered that nothing in Marion’s case restricted the consideration of therapeutic and non-therapeutic procedures to those addressing only bodily as opposed to psychological malfunction or disease.
    212. This finding having been made, it followed that the proposed treatment was solely therapeutic, having no non-therapeutic application. [Emphasis added]
27. Thus, their Honours found that Stage 2 treatment, being in response to a psychological disorder, is therapeutic.
28. The Family Law Rules 2004 (Cth), relating to applications for medical procedures, defines a medical procedure application as an application “seeking an order authorising a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease”.
29. The Oxford English Dictionary defines “therapeutic” as “Relating to the healing of disease, administered or applied for reasons of health, having a good effect on the body or mind contributing to a sense of well-being”.
30. Ainslie-Wallace and Ryan JJ, in Re: Kelvin, further stated:
    222. ... Brennan J [in Marion’s case] defined therapeutic treatment by the twin considerations of purpose and proportionality. Thus, as Bell writes [in her article “Children with Gender Dusphoria and the Jurisdiction of the Family Court” [2015] UNSWLawJl 15; (2015) 38(2) University of New South Wales Law Journal 426] at 441 “the question of proportionality goes to determining the initial, fundamental question of whether the treatment is therapeutic, which is determined ‘as a question of medical fact’. It is not balanced against undertaking a therapeutic treatment” ...
31. Dr R, Associate Professor and Paediatrician at the X Hospital, reported:

The World Professional Association for Transgender Health Standards of Care Version 7 report that for many transgender individuals surgery is essential and medically necessary to alleviate their gender dysphoria. It states that for many individuals, relief from gender dysphoria cannot be achieved without modification of their primary and/or secondary sexual characteristics to establish greater congruence with their gender identity. [Footnotes omitted]

...

The presence of breasts in a trans male adolescent can be a source of significant distress due to the incongruent appearance breasts create when presenting as male. It is common for trans males to experience stigma, discrimination, exclusion, bullying, harassment and abuse. ... Some trans males feel such distress regarding the presence of their breasts that they self harm by cutting their breasts or other aspects of their body. Other patients report suicidal ideation and suicide attempts in relation to their inability to appear masculine due to the presence of their breasts.

...

With surgical chest reconstruction, distress is alleviated. Many of my patients report an increasing ability to attend school or other educational/vocational activities, engage with their peers and other members of their community. They also report improved mood and anxiety and thoughts of self harm and suicide ideation.

32. Dr D, a Plastic and Reconstructive Surgeon, provided a report in which she stated:

[Matthew] identifies as a male, but has ongoing conflict and anguish at the presence of female secondary sex characteristics. Surgical and hormonal therapies that remove female and or strengthen male sex characteristics can help reduce this conflict.

...

This procedure is the next logical step for [Matthew] in his transition to a male appearance. He sees his future as a male, so continuing his transition will have a positive effect on his social and psychological outlook as he will not only feel more congruous with his outward appearance, but he will be better able to be perceived and treated as a male.

33. Dr D stated, “I believe the procedure is necessary for the mental and physical well being of [Matthew]”.
34. Dr S reported generally in relation to the advisability of withholding therapeutic treatment for Matthew, but not specifically in relation to the Stage 3 treatment, in the following terms:

The more long term psychological effects may result in his adjustment disorder evolving into a more pervasive major depression, a worsening of his social phobia, which in turn will markedly affect his ability to socialise and attend school. This may lead to a worsening of suicidal ideation and perhaps a suicide attempt caused by the dissonance between his female appearance and his perceived gender as a male.

35. Specifically in relation to the proposed Stage 3 treatment, Dr S reported:

The procedure will reduce his psychological pain, as his breasts are a prominent reminder of his female gender which is incongruent with his own self-identification as male. This is likely to reduce his dysphoria, improve his self esteem and social confidence as well as reduce his suicidal ideation.

36. Dr S was asked to give his opinion on the effect on Matthew if the procedure was not carried out. He stated:

The short term psychological effects would likely be extreme distress, low mood and the potential for worsening suicidal ideation. The more longterm psychological effects will be a chronic depressed and anxious state markedly affecting his ability to socialise and function. This may lead to a worsening of suicidal ideation and perhaps repeated suicide attempts caused by the dissonance between his female physical appearance versus his perceived gender as a male.

37. Dr E stated:

It is now common practice for assigned females with gender dysphoria to wear chest binders, which are compression garments that squash the breasts against the chest wall to reduce outward evidence of their existence, hence allowing the individual to more convincingly present as masculine and avoid being gendered by others as female. Binding often involves physical discomfort which is sometimes marked, restricts physical and social activities and can also be a cause of skin infections. It ultimately distorts the breasts and reduces the elasticity of the skin, making chest masculinisation surgery more problematic and less satisfactory in its end result.

The surgical procedure of chest masculinisation, popularly known as top surgery, involves removal of the breast tissue, repositioning of the nipples and contouring of the chest wall in a masculine form. Its therapeutic benefit is usually immediate and often profound. The social benefits are characteristically enormous. The individual is able to wear clothing that is congruent with their gender, has much less fear of being misgendered as a female or having their transgender status unwantedly discovered by others, and can move freely and participate in a broad range of desired social and sporting activities.

These changes bring about a very large reduction in stress and an (sic) marked improvement in self esteem. This in turn has a greatly positive impact on the mental health of these individuals, which reduces their risks of depression, anxiety, self harm and suicidality. They are able to function and participate much more productively in society and form healthy and enduring friendships and relationships.

It is therefore the case that Gender Dysphoria in Adolescents and Adults (DSM-5) is a clinical condition, and that for many assigned females with this condition the procedure of chest masculinisation surgery (top surgery) is a therapeutic and not merely a cosmetic procedure, and is of enormous benefit to the sufferer.

38. I am satisfied that the proposed treatment is for the purpose of treating a “bodily malfunction”, albeit psychiatric, and thus is therapeutic.

IS THERE A CONTROVERSY?

39. The majority in Re: Kelvin stated:

We note though that in answering that question we are not saying anything about the need for court authorisation where the child in question is under the care of a State Government Department. Nor, are we saying anything about the need for court authorisation where there is a genuine dispute or controversy as to whether the treatment should be administered; e.g., if the parents, or the medical professionals are unable to agree. There is no doubt that the Court has the jurisdiction and the power to address issues such as those.

40. It is clear that, where there is controversy about the proposed treatment, or where there is disagreement about the manner in which treatment should proceed, either between the parents, between the medical professionals or between the parents, child and medical professionals, it is the role of the Family Court to hear and determine that controversy.
41. In the present case, there is no controversy. Matthew, his parents and the medical professionals are all agreed that the proposed treatment is the appropriate and recommended course of action.

IS IT NECESSARY FOR THE COURT TO FIND THAT THE CHILD IS GILLICK COMPETENT TO CONSENT TO THE PROPOSED PROCEDURE?

42. The Full Court in Re Kelvin answered the questions stated:

Question 2: Where:

2.1 Stage 2 treatment of a child for Gender Dysphoria is proposed;

2.2. The child consents to the treatment;

2.3. The treating medical practitioners agree that the child is Gillick competent to give that consent; and

2.4. The parents of the child do not object to the treatment

is it mandatory to apply to the Family Court for a determination whether the child is Gillick competent (Bryant CJ at [136-137, 140(e)]; Finn J at [186] and Strickland J at [196] Re Jamie)?

Answer: No

43. In Re: Kelvin, Thackray, Strickland & Murphy JJ, in determining whether an application need be made to the Court for a determination of Gillick competency for Stage 2 treatment, said:

179. [In Re: Jamie] Bryant CJ relevantly stated:

136. The second and more vexing question posed is who should determine the question of Gillick competence. Is it the medical doctors, or is it necessary for an application to the court to be made for an assessment as to whether the child is competent to give informed consent to the procedure?
137. With some reluctance I conclude that the nature of the treatment at stage two requires that the court determine Gillick competence. In Marion’s case, the majority held that court authorisation was required first because of the significant risk of making the wrong decision as to a child’s capacity to consent, and secondly because the consequences of a wrong decision are particularly grave.
138. It seems harsh to require parents to be subject to the expense of making application 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.
180. It is said that her Honour has erred because nothing was said in Marion’s case about who should determine Gillick competence, and certainly it was not suggested that the court should be tasked with that responsibility.
181. That is entirely correct, but her Honour is not suggesting otherwise in those paragraphs. What her Honour is saying is that because court authorisation is required where there is the significant risk of making the wrong decision and the consequences of a wrong decision are particularly grave, it was also appropriate that the Court determine Gillick competence. In other words, the nature of the treatment requires that to be the case (also see Finn J at [185] – [186]).
182. Now, of course, if as appears to be the case, the nature of the treatment no longer justifies court authorisation, and the concerns do not apply, then there is also no longer a basis for the Court to determine Gillick competence. [Emphasis added]
44. Ainslie-Wallace and Ryan JJ summarised the propositions to be drawn from Marion’s Case in the following manner:
    199. For present purposes, the propositions to be drawn from Marion’s case are:
         • Sterilization (which is invasive, irreversible and major surgery) is medical treatment to which a legally competent person can consent (234);
         • It is primarily the prospect of surgical intervention which attracts the interests of the law because, without legally effective consent, such intervention would constitute an offence and a tort (232 – 235);
         • In the case of a child, a parent generally has, at common law and under the Act, power to consent to medical treatment of their child (237);
         • At common law, a parent is no longer capable of consenting on the child’s behalf when the child achieves a sufficient understanding and intelligence to enable him or her to fully understand what is proposed (Gillick competent) (237 – 238);
         • Where a child is not Gillick competent, the scope of parental power to consent to medical treatment is wide but does not extend to non-therapeutic sterilization (239 and 250);
         • The reasons why non-therapeutic sterilization of an incapable child is outside the parental power to consent to medical treatment are:

(a) It requires invasive, irreversible and major surgery;

(b) There is a significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about the best interest of a child who cannot consent; and

(c) The consequences of that wrong decision are particularly grave (250 – 252); and

• Where a child is not Gillick competent, it is necessary to apply to the court to authorise non-therapeutic sterilization in accordance with Part VII of the Act (257).

200. Marion’s case does not:

• Foreclose taking a similar approach to the necessity for authorisation of analogous non-therapeutic medical or surgical treatment for a child who lacks legal capacity;
• Address the situation of a Gillick competent child who refuses permission for medically necessary treatment; or
• Support court intervention in relation to therapeutic procedures to which a legally competent person can consent.

201. It follows that factors such as the gravity of the intervention only arise for consideration if the proposed treatment is non-therapeutic. We thus agree with the submission of the Royal Children’s Hospital that based on Marion’s case there is no reason in principle to distinguish between the approaches to be taken to the forms of therapeutic treatment of Gender Dysphoria. [Emphasis added]
45. Nothing in these statements is contrary to the judgment of the majority in Re: Kelvin.
46. It therefore follows that where appropriately qualified medical and health professionals are satisfied that a subject child is Gillick competent, and the treatment which is proposed is therapeutic, and there is no controversy, there is no necessity for this Court to determine whether the subject child is Gillick competent before Stage 3 treatment for Gender Dysphoria can proceed.
47. It also follows that where there is any controversy about whether a subject child is Gillick competent; about whether the treatment is appropriate; about whether the parents and the child consent to the proposed procedure or any other controversy, including but not limited to any controversy between treating practitioners, it is necessary for the conflict to be resolved by application pursuant to Part VII of the Family Law Act 1975 (Cth).

FORM OF ORDERS

48. Both the applicants and the ICL urged upon the Court that, in disposing of this application, it was not sufficient to simply dismiss the application. Both asked the Court to make declaratory orders.
49. Whilst it might be argued that strictly a declaration must create or testify to a right, I am conscious that this issue is of concern to a wider audience and that parents and treating practitioners look to the Court’s orders for guidance in these matters.
50. I note the observations of Gibbs J in R v Ross-Jones; Ex parte Beaumont [1979] HCA 5; (1979) 141 CLR 504 at 509 that:

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 s. 34(l) and s. 80(k).

44. Section 34(1) of the Family Law Act 1975 (Cth) provides that:

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.

51. I also note that The Honourable Robert French, writing extra judicially in a paper entitled “Declarations – Homer Simpson’s remedy – is there anything they cannot do?” [2007] Federal Judicial Scholarship 24, stated:

The powers of the courts, both Federal and State, to make declaratory orders are wide. They are constrained by the requirement that that they can only be used in the exercise of the jurisdiction of the courts in making them. ... The declaratory remedy has become well entrenched in both State and Federal judicial systems. It is now an indispensable tool in the administration of justice in both public and private law.

52. I propose therefore to conclude the proceedings by making a declaration that, in the circumstances of this case, no application to the Family Court is necessary before Stage 3 treatment for Gender Dysphoria can proceed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 16 March 2018.







Associate:



Date: 16 March 2018