Parental Dispute over Gender Dysphoria Treatment for Teenager

Re: Imogen (No. 6) [2020] FamCA 761

Introduction

In Re: Imogen (No. 6) [2020] FamCA 761, Justice Watts of the Family Court of Australia found that Imogen, a teenager who had been diagnosed with Gender Dysphoria, was Gillick competent for the purposes of making decisions relating to her treatment for Gender Dysphoria. Justice Watts ordered that the proposed stage 2 treatment for Imogen’s Gender Dysphoria, which included the administration of gender affirming hormone therapy, was authorised by order of the Court.

Facts

Imogen, 16 years and 8 months old at the time of proceedings, was diagnosed as having Gender Dysphoria by her treating psychiatrist and had been assessed as being Gillick competent for the purposes of consenting to treatment for her Gender Dysphoria. The American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-5 Fifth Edition (DSM-5) provides that Gender Dysphoria is characterised by clinically significant distress experienced as the result of an incongruence between a person’s gender identity and their gender assigned at birth. Stages of gender affirming treatment are set out in the Australian Standards of Care and Treatment Guidelines: For trans and gender diverse children and adolescents (the Australian Standards).

Gillick competence refers to the English House of Lords decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (Gillick) and is a standard used to determine whether a child is able to consent to their own medical treatment without the need for parental permission or knowledge. In order to be deemed Gillick competent, a child must have “sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. The Gillick competence standard was affirmed by the High Court of Australia in Secretary, Department of Health Community Services v JWB and SMB (1992) 175 CLR 218 (Marion’s Case).

At the time of the proceedings, Imogen was taking stage 1 puberty suppression medication however had expressed a consistent desire to move to stage 2 gender affirming hormone treatment. While the Australian Standards conclude that the effects of stage 1 treatment are predominantly reversible, the effects of stage 2 treatment are irreversible. Some impacts of both stage 1 and stage 2 treatment, including on bone density and mineralisation, are currently unknown. Imogen’s mother disputes Imogen’s diagnosis and does not agree that Imogen is Gillick competent for the purposes of consenting to stage 2 treatment for her Gender Dysphoria. Imogen’s mother initially sought orders that the parties instruct treating medical practitioners to cease both stage 1 and stage 2 treatment for Imogen on the basis that Imogen did not fully understand the nature of stage 2 treatment, she was unable to sufficiently assess the risks associated with the treatment, and had a misplaced confidence in the positive effects of the treatment. At the conclusion of proceedings, Imogen’s mother neither consented to nor opposed Imogen commencing stage 2 treatment, and sought orders that Imogen’s father facilitate Imogen attending appointments with a psychologist or psychiatrist specialising in adolescents with “Complex Post-Traumatic Stress Disorder”, and that the relevant back to school programs and any mental health professionals Imogen may consult with receive a copy of the expert report obtained by Imogen’s mother.

Imogen’s father was supportive of and agreed with Imogen’s diagnosis. He sought orders that the Court grant Imogen “parental responsibility for herself for the purposes of consent to medical treatment” for her Gender Dysphoria, or alternatively that the administration of stage 2 treatment is authorised. This case also involved an Independent Children’s Lawyer (ICL), who sought orders to the effect that Imogen was competent to consent to the administration of stage 2 treatment or alternatively that the Court authorise by order the proposed treatment.

The Court requested the intervention of the Attorney-General in this matter pursuant to section 91(1)(a) of the Family Law Act 1975 (Cth) (the Act) with respect to particular questions of law. The Attorney-General made submissions to the effect that the Australian Standards incorrectly stated the current law in relation to the need for consent of parents or guardians to stage 2 treatment by stating that Court authorisation prior to the commencement of hormone treatment is no longer required and that although obtaining consent from parents or guardians is ideal, it is not required when the adolescent is considered to be competent to provide informed consent. The Australian Human Rights Commission (AHRC) also sought leave to intervene at the request of the Court. Neither the Attorney-General nor the AHRC sought any orders.

Issues

The Court identified a number of issues that required determination in this instance, including the following:

  1. Is an application to the Court mandatory?
  2. Does Imogen have Gender Dysphoria as described in the DSM-5?
  3. Is Imogen Gillick competent?
  4. What future treatment is in Imogen’s best interests?
  5. In what form should the order be made?

Evidence

In evidence, Imogen’s father relied on affidavits sworn by himself, by Imogen’s treating psychiatrist Dr C, and by Imogen’s treating endocrinologist Associate Professor J. Imogen’s mother relied on affidavits sworn by herself and Dr D’Angelo, an expert psychiatrist. The ICL relied on an affidavit by Associate Professor Winter, an academic with a background in therapy, who primarily gave evidence relating to research relied upon by the mother’s expert. The Attorney-General and the AHRC both filed written submissions.

All witnesses gave oral evidence, and Dr C and Dr D’Angelo prepared a joint statement pursuant to rule 15.69 of the Family Law Rules 2004 (Cth) however both adopted different diagnostic frameworks, methods and conceptualisation of the experience of Gender Dysphoria.

Applicable legal principles

Justice Watts referred to several relevant cases which demonstrate the development of the law in this area over recent years. In Marion’s Case, the High Court of Australia adopted the approach of the House of Lords in Gillick by concluding that a child is capable of giving informed consent provided they achieve a sufficient understanding and are of sufficient intelligence to enable them to fully understand the proposed treatment. An important distinction was made, however, in relation to therapeutic and non-therapeutic procedures in which the Court concluded that non-therapeutic procedures would require court approval notwithstanding the consent of a Gillick competent child, the child’s parents and the treating medical practitioners. This was particularly important in instances where the procedure required invasive, irreversible and major surgery, involved a significant risk of making the wrong decision either as to the child’s present or future capacity to consent or about the best interests of a child who cannot consent, and where the consequences of such a wrong decision are particularly grave.

In Re Jamie (2013) FLC 93-547 (Re Jamie), the Full Court of the Family Court of Australia held that while stage 1 treatment for Gender Dysphoria should be considered therapeutic, stage 2 treatment falls within the scope of Marion’s Case due to the significant risk that the wrong decision may be made in regards to the child’s capacity to consent to treatment, and the possibility that the consequences of such a decision could be particularly grave. Notably, this decision was reversed in Re Kelvin (2017) FLC 93-809 (Re Kelvin) in which the Full Court of the Family Court of Australia held that, given the current state of medical knowledge, stage 2 treatment for Gender Dysphoria should be considered therapeutic. On that basis, if the child, the parents and medical practitioners agree that the child is Gillick competent then there is no need for the Court to make a determination in that respect and the child can consent to stage 2 treatment. If the child is not Gillick competent and the child’s treating practitioners agree, the child’s parents can consent to stage 2 treatment on the child’s behalf without first seeking court approval.

Reasoning

Is an application to the Court mandatory?

On the basis of the decision in Re Kelvin, an application to the court is not necessary provided that there is no dispute between the child, the parents and treating medical practitioners as to the child’s Gillick competence, diagnosis of Gender Dysphoria or the appropriate treatment for Gender Dysphoria. If a parent or medical practitioner of an adolescent disputes any of these things, however, Justice Watts held that an application to the Court would be mandatory. Upon such an application, the Court should make a finding of Gillick competence and, if there is a dispute about diagnosis or treatment, determine the appropriate diagnosis and treatment. The Court should then make an order authorising or not authorising treatment pursuant to section 67ZC of the Act, which provides for the making of orders in relation to the welfare of a child. The paramount consideration in making such determinations and orders, the Court held, is what is in the best interests of the child.

Does Imogen have Gender Dysphoria as described in the DSM-5?

The DSM-5 sets out that in order for a diagnosis of Gender Dysphoria to be made, a person must experience distress stemming from a marked incongruence between their experienced or expressed gender and their assigned gender. Such distress must be experienced by the person for at least six months and must be clinically significant and associated with impairment in social, occupational or other important areas of functioning. Part A of the definition of Gender Dysphoria in the DSM-5 sets out a number of criteria, two or more of which must be met in order for a diagnosis to be made. Both Dr C, Imogen’s treating psychiatrist, and Dr D’Angelo, Imogen’s mother’s expert, agreed that Imogen’s condition fulfils at least two of the criteria in Part A of the definition of Gender Dysphoria. Dr C also asserted that Imogen met the criteria in Part B of the definition of Gender Dysphoria, being that the distress is clinically significant and associated with impairment in important areas of functioning, on the basis that Imogen has consistently expressed that her Gender Dysphoria is the source of her distress.

In contrast, Dr D’Angelo concluded that Imogen’s distress was attributable primarily to a post-traumatic mental health condition, and that it was impossible to determine whether Imogen’s Gender Dysphoria was causing clinically significant distress given that the consequences of exposure to developmental trauma, such as family violence, can be severe and ongoing. He made this finding on the basis that Imogen’s mother alleged that Imogen’s father had been physically abusive towards her and their children, with Imogen’s younger sister having reported such violence to her treating health professionals and to the Department of Family and Community Services. Imogen’s sister had subsequently been diagnosed with complex trauma as a result of the family violence, although Imogen’s father maintained he acted within the course of normal parental discipline. The Court accepted that Imogen’s mother’s version of events in relation to the family violence was the most likely.

The Court concluded that Dr C, as Imogen’s treating psychiatrist, would have greater insight into the sources of her distress. On this basis, Justice Watts rejected Dr D’Angelo’s assertions and found that Imogen had Gender Dysphoria in line with the definition in the DSM-5.

Is Imogen Gillick competent?

Again, Dr C and Dr D’Angelo disagreed as to whether Imogen met the threshold for Gillick competence. Dr C concluded that Imogen was Gillick competent, on the basis that she was:

  • able to comprehend and retain both existing and new information regarding the proposed treatment;
  • able to provide a full explanation, in terms appropriate to her level of maturity and education, of the nature of stage 2 treatment;
  • able to describe both the advantages and disadvantages of stage 2 treatment;
  • able to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when she should proceed with stage 2 treatment;
  • able to understand that stage 2 treatment will not necessarily address all or any of the psychological and social difficulties that she had before the commencement of treatment;
  • free to the greatest extent possible from temporary factors that could impair judgment in providing consent to the procedure.

Dr D’Angelo, on the other hand, concluded that Imogen was not Gillick competent. He based these conclusions on Imogen’s perceived defensiveness throughout his interviews with her, particularly in response to an assertion he made that she was not competent to independently consent to stage 2 treatment for her Gender Dysphoria. He was also of the opinion that Imogen demonstrated only a superficial knowledge and understanding of the likely medical and mental health risks of gender affirming hormones, and that she was not aware of the potential seriousness of the risks associated with stage 2 treatment.

Justice Watts concluded that Imogen’s defensiveness with Dr D’Angelo was understandable in the circumstances given she only had two virtual consultations with him via an audio-visual link, and held that Imogen was Gillick competent and thus able to provide consent to stage 2 treatment for her Gender Dysphoria. Justice Watts noted that Imogen was “an adolescent of intelligence and maturity, and has demonstrated a sophisticated ability to recognise that gender issues impact on all of the areas in which she feels distress, as well as recognising that there are other issues also impacting on her.”

What future treatment is in Imogen’s best interests?

Dr C recommended that Imogen commence gender affirming hormone therapy and continue with that therapy as long as necessary for her mental health and wellbeing. It was his opinion that Imogen’s experienced gender identity was stably established as female and failing to accept and affirm her as such would place her ongoing mental health at significant risk. Dr C argued that any risk to Imogen’s health and wellbeing posed by stage 2 treatment was mitigated by the improvements to her mental health and social re-engagement that would be facilitated by a reduction in her Gender Dysphoria, and asserted that the suffering Imogen may experience by being denied gender affirming treatment carried a far greater risk of harm than any potential risks stemming from such treatment. Dr C also recommended that Imogen attend ongoing individual outpatient reviews and therapeutic sessions in conjunction with a regime of any necessary and beneficial prescribed psychotropic medications.

In contrast, Dr D’Angelo recommended suspending all hormone therapy for at least 12 months while Imogen underwent intensive psychotherapy addressing issues other than, and including, her gender identity. Dr D’Angelo was of the opinion that treating Gender Dysphoria as a stand-alone diagnosis takes it out of the context in which is has been developed, and that psychotherapy would assist Imogen into gaining greater insight into who she was as a person and the sources of her distress prior to undertaking potentially irreversible treatments.

Justice Watts concluded that Dr C’s recommendations were consisted with the current accepted approach to treatment for Gender Dysphoria and thus held that such treatment would be in Imogen’s best interests. He noted that he had reservations about the basis of Dr D’Angelo’s recommendations as they were made on the premise that Imogen does not have Gender Dysphoria, an assertion that the Court ultimately did not accept. Justice Watts ordered, therefore, that the proposed stage 2 treatment of Imogen for her Gender Dysphoria was authorised by the Court.

In what form should an order be made?

Imogen’s father sought an order that Imogen be granted parental responsibility for herself in relation to her medical treatment for Gender Dysphoria in accordance with section 64B of the Act, while the ICL sought an order from the Court authorising the proposed treatment. In this instance, Justice Watts made an order consistent with those proposed by the ICL, concluding that this was a more effective way to eliminate any uncertainty that Imogen’s medical practitioners may have when providing treatment to her in future. Additionally, it was held that an order authorising treatment was consistent with the view that disputes in respect of treatment for Gender Dysphoria are best dealt with under section 67ZC of the Act, as opposed to a “parental order” under section 65D of the Act. The Court also ordered that Imogen’s father must do all things necessary to facilitate Imogen attending a “back to school” program and must provide Imogen’s mother an update in writing with respect to Imogen on a monthly basis.

Compliance Impact

Organisations should be aware that medical practitioners seeing an adolescent under the age of 18 should not initiate stage 1, 2 or 3 treatment for gender dysphoria without first ascertaining whether the child’s parents consent to the proposed treatment. In the event that there is a dispute between parents, children and treating medical practitioners in relation to a child’s Gillick competence, or a diagnosis of or treatment for Gender Dysphoria it may be necessary to apply to the Courts for a determination in relation to that dispute. Without such a determination, a medical practitioner may be criminally or civilly liable in the event that the child is found not to be Gillick competent.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au

 

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