Re: Jamie  FamCA 455 (16 June 2015)
The Family Court of Australia has found that 15 year old “Jamie”, the subject of the often-cited decision of the Full Court of the Family Court in Re: Jamie  FamCAFC 110 (Re Jamie 2013), was competent to consent to the stage two treatment for gender dysphoria and authorised her to make her own decision in relation to that treatment. This case is one of many being heard by the Family Court following the decision in Re Jamie 2013 that whilst court authorisation is unnecessary for stage one treatment for gender dysphoria, the nature of stage two treatment requires the Court to determine the child’s “Gillick competence” to make the decision.
Jamie was assigned as a male at birth but identified as a female from a very young age. She was diagnosed with gender dysphoria in 2007 and wished to undergo stage two treatment for that condition (involving the administration of oestrogen and endogenous testosterone blockers). Jamie commenced stage one of the treatment (involving the administration of puberty suppression hormones) in around 2011, following a decision of the Family Court permitting her parents to consent to Jamie undergoing that treatment.
The 2011 decision was appealed by Jamie’s parents who argued that it should be set aside because the Court went beyond its jurisdiction in authorising them to consent to Jamie’s treatment. The Full Court handed down its decision on the appeal in Re Jamie 2013, determining that court authorisation was unnecessary for stage one treatment, but that the nature of the stage two treatment required the Court to determine that the child is “Gillick competent”. The term “Gillick” refers to the English case of Gillick v West Norfolk and Wisbech Area Health Authority  AC 112 (later held by the High Court of Australia in “Marion’s case” to be applicable in Australia) where Lord Scarman held that “the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.
In the present case, Jamie’s parents sought orders (among others) that Jamie be declared competent to give informed consent to the stage two treatment. The application for stage two treatment was particularly urgent as Jamie was becoming increasingly distressed about the physical differences she experienced between her own non-feminised, pre-pubertal body and that of her age peers. Jamie’s parents also sought a declaration that a court authorisation would not be required where there was no controversy regarding the diagnosis, the child’s wishes, and the child’s competence to consent (as in this case), contrary to the decision in the Re: Jamie 2013 appeal.
Justice Thornton found, on the balance of probabilities, that Jamie was competent to consent to stage two treatment for gender dysphoria and authorised her to make her own decision in relation to that treatment. Her Honour accepted the unchallenged evidence of Jamie’s parents and treating doctors in finding that she was Gillick competent. Jamie was found to have demonstrated the intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences of the stage two treatment, which included infertility.
Evidence of Jamie’s parents and treating doctors on competence accepted
Her Honour accepted the evidence of Jamie’s parents and treating doctors in support of a finding that she was Gillick competent. In respect of the evidence of Jamie’s mother, the Court noted that although she “was not a medical expert”, she “has had the advantage of observing and interacting with Jamie since her birth”. Jamie’s mother deposed that Jamie first began identifying with the female gender as a toddler and that her family had been discussing the advantages, disadvantages and risks of stage two treatment with her treating doctors for many years. Jamie’s mother also attested to Jamie having “a full understanding of what the treatment entails, its risks and benefits and how it will affect her”.
Her Honour also accepted the evidence of Jamie’s treating doctors (one a child and adolescent psychiatrist and the other the Head of Gender Dysphoria at Jamie’s treating hospital) that Jamie met the diagnostic criteria for gender dysphoria and was Gillick competent in that she was able to give thorough, thoughtful and mature consideration to the risks and benefits of the proposed treatment. The doctors also warned that if the treatment was not permitted, Jamie’s anxiety symptoms would increase and she would be at an increased risk of depression and self-harm behaviour. Justice Thornton accepted their evidence that Jamie was Gillick competent, understood the risks of the oestrogen treatment “as well as any other person could, including that of an informed adult” and had decided to proceed with the treatment as an independent agent without pressure from her parents or others.
Interestingly, her Honour took into consideration a letter written by Jamie to the Court, imploring them to allow her to commence stage two treatment. Although her Honour did not consider the letter as evidence, she stated it was “important because it articulate[d] Jamie’s views”.
Application that court authorisation not required absent controversy rejected
Counsel for the applicants did not press the argument that where the diagnosis, and the child’s wishes and capacity to consent, were not in dispute. Her Honour noted that she would have been bound by the Full Court decision in Re Jamie 2013 to reject that application, and counsel accepted that at the outset. Accordingly, her Honour did not grant the declaratory relief sought. Her Honour also noted that, in any event, it is not clear that the Court has the power to make such a declaration without a statutory conferral of such a power under the Evidence Act 1995 (Cth).
This case is particularly noteworthy as we see Jamie, the subject of the significant and often-cited Re Jamie 2013 decision, back before the Family Court to seek approval for further treatment in accordance with the process mandated by the Full Court.
It is one of a number of cases which have been brought seeking declarations that a child is competent to consent to stage two treatment for gender dysphoria following the Full Court’s decision in Re Jamie 2013 that stage one treatment does not require court approval, but stage two treatment does. Jamie’s case is an interesting example of this not only because she was the child in issue in Re Jamie 2013 but also because: (a) Jamie was on the younger end of the spectrum of those seeking declarations of Gillick competency for stage two treatment; and (b) the Court considered Jamie’s own views as expressed in her letter to the Judge, when usually the Court only considers the evidence of the child’s parents and treating doctors.
The outcome of most of these decisions has been in favour of the child. In all of the reported cases in 2015, it was found that the children (aged between 15 and 17 years old) were competent to consent to the stage two treatment. However, the Family Court itself has questioned the need for it to be involved in these decisions at all and has acknowledged the possibility of law reform in this area, particularly noting the high burden of the legal process on children and their parents/guardians.
The issue of whether a court authorisation to a medical procedure is required absent controversy around the issue remains controversial.
See the case note on Re: Martin  FamCA 1189 for further discussion on these points.
The full text of the decision can be found here.
Laurice Elten, Solicitor at King & Wood Mallesons