Gender Dysphoria and the Family Court – a case study 

Gender Dysphoria and the Family Court – a case study 

 

Background of the Imogen case

Recently, the Family Court had to make a ruling on the topic of “Gender Dysphoria” in regards to a child called Imogen (previously known as Thomas), aged 16 and 8 months old and to her future medical treatment regarding gender reassignment. Imogen (No. 6) [2020] FamCA 761 (10 September 2020) 

Imogen had been diagnosed with “Gender Dysphoria” and assessed as Gillick Competent by the child’s treating medical practitioners.Gillick competence” is a term originating in England and Wales and is used in medical law to decide whether a child (under 16 years of age) is able to consent to their own medical treatment, without the need for parental permission or knowledge.

Prior to the commencement of the court proceedings, Imogen was taking stage 1 puberty suppression medication and according the child’s father had expressed a consistent, persistent and insistent view that the child wished to move to stage 2 gender affirming hormone treatment.

Imogen lived with the father and had not spend time with the mother since 2018. Imogen’s father was supportive of the child’s “decision” to move to stage 2 gender affirming hormone treatment however Imogen’s mother disputed Imogen’s diagnosis and/or that Imogen was Gillick competent. The mother maintained that Imogen does not completely and sufficiently understand the nature of the treatment proposed, and is unable to assess the risks associated with stage 2 treatment, despite the child being aged 16.

The questions the Court had to consider were:

      • Is an application to the Court mandatory?
      • Whether mandatory or not, once an application is made and if Imogen is found to be Gillick competent, can she make her own decisions about her treatment?
      • If so, what order, if any, should be made in respect of the issue of Gillick competence? 
      • If Imogen’s consent is not sufficient and the Court is required to make an order that is in Imogen’s best interests, should that order grant Imogen “parental responsibility” to make her own decision or should an order authorising treatment be made? 

 

Gillick Competent 

In this case, Imogen’s Gillick competence was assessed by Imogen’s treating psychiatrist which included the following headings in the report:  

        1. “Able comprehend and retain both existing and new information regarding the proposed treatment”;
        2. “Able to provide a full explanation, in terms appropriate to her level of maturity and education, of the nature of phase 2 treatment”;
        3. “Able to describe the advantages of phase 2 treatment”;
        4. “Able to describe the disadvantages of phase 2 treatment”;
        5. “Able to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when she should proceed with phase 2 treatment”;
        6. “Able to understand that the decision to proceed with phase 2 treatment could have consequences that cannot be entirely foreseen at the time of the decision”;
        7. “Able to understand that phase 2 treatment will not necessarily address all or any of the psychological and social difficulties that she had before the commencement of treatment”;
        8. “Being free to the greatest extent possible from temporary factors that could impair judgment in providing consent to the procedure”. 

 

The above number of factors were the same factors that were considered by Johnston J in Re Lincoln (No. 2) [2016] FamCA 1071 and Tree J in Re Elliott [2017] FamCA 1008 at [22], except that those lists did not explicitly include: “Able to understand that the decision to proceed with phase 2 treatment could have consequences that cannot be entirely foreseen at the time of the decision.”

Dispute between the parents on medical treatment for their teenage child

The Father initiated the application to the Court seeking that Imogen be granted parental responsibility for herself for the purpose of consent to medical treatment for Gender Dysphoria alternatively, the Father sought orders that the Court authorise the administration of stage 2 treatment for Gender Dysphoria. 

The Mother in her response sought orders that the treating medical practitioners cease both stage 1 and stage 2 treatment for Imogen and argued that Imogen was not Gillick competent. 

Decision made by Court

The Court made the decision that Imogen was Gillick competent to provide consent to Stage 2 treatment, and be administered the proposed stage 2 treatment, in such manner and with such frequency as defined by her treating medical practitioners. 

Conclusion – more Family Court involvement in these cases

The Case of Imogen concludes that an application to the Family Court is mandatory if a parent or a medical practitioner of an adolescent disputes:

        1. The Gillick competence of an adolescent; or
        2. A diagnosis of gender dysphoria; or
        3. Proposed treatment for gender dysphoria,

 

Also:  whether or not there are any findings of Gillick competence, if there is a dispute about diagnosis or treatment, the court will:

        1. Determine the diagnosis;
        2. Determine whether treatment is appropriate, having regard to the adolescent’s best interests as the paramount consideration; and
        3. Make an order authorising or not authorising treatment on best interest considerations;

 

And: if a parent or legal guardian does not consent to an adolescent’s treatment for gender dysphoria, a medical practitioner, who is willing to do so, must not administer treatment to an adolescent who wishes it, without court authorisation.

 

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