Treatment of Gender Dysphoria in Children, Leave to Intervene: Re Jamie [2012] FamCAFC 8

The Full Court of the Australian Family Court dealt with an application to intervene in a case of transsexualism treatment for children in Re Jamie [2012] FamCAFC 8. Jamie was born a nonidentical twin and was genetically male. However, when Jamie was two and a half years old, she began to identify as a female. By the time she started school, she lived exclusively as a female, wore girl’s clothes, went to the girl’s toilet, and was treated by her teachers and classmates as a girl. Jamie was diagnosed as having childhood gender identity disorder and her treatment team recommended that she, initially, be given puberty suppressing hormones and, secondly, oestrogen treatment. The matter went to trial before Dessau J, who concluded that the treatment was a special treatment that had to be approved by the court and which could not be consented to by the parents. Further, her Honour decided that she would only consent to the first stage of treatment and not to the oestrogen therapy, given that Jamie was very young and that the second stage of therapy could commence at a later time when Jamie may be able to make her own medical decisions. The matter has been appealed by Jamie’s parents to the Full Family Court, on the basis, amongst other things, that the treatment was not a “special medical procedure” and could be consented to by parents.

In Re Jamie concerns an application by a public authority to intervene in the matter. The public authority’s identity was not disclosed, but it wished to intervene in the matter given the public interest concerning the question of whether treatment for gender identity disorder was a “special medical procedure.” Importantly, an intervener becomes a party to the proceedings with all the rights, duties, and liabilities of a party (at [35]). For example, interveners can tender their own evidence and can appeal. Alternatively, the public authority argued that it should be allowed to act as amicus curiae, but an amicus is not a party and cannot call witnesses or produce evidence. Jamie’s parents contested the application for intervention.

The Full Court granted the intervention. The parents’ grounds of appeal were of significant public interest and the public authority could show that it had the necessary legal interest to be an intervener. The Full Court also said that it believed the public authority could bring evidence that the other parties may not bring and that there was merit in hearing such evidence.

The full appeal hopefully will be decided before year’s end. It raises an extremely important point: Can parents consent to treatment for gender dysphoria? Earlier cases have consistently held that such treatments can only be consented to by courts. In Re Alex [2004] FamCA 297, a 13-year-old genetic female wanted to undergo hormonal treatment for gender dysphoria. Nicholson CJ found that gender identity disorder was not a bodily malfunction or disease and, as such, he believed it was appropriate for the treatment to fall into the class of treatments that the courts need to authorise. The Family Court decided similarly in Re Brodie (Special Medical Procedures: Jurisdiction) [2007] FamCA 776 and Re Brodie (Special Medical Procedure) [2008] FamCA 334, where Carter J found that a treatment plan for gender dysphoria was not a procedure for treating a bodily malfunction or disease, and so must be consented to by the court (at [41]). In both Re Rosie (Special medical procedure) [2011] FamCA 63 and Re O (Special medical procedure) [2010] FamCA 1153, treatment was considered to be “special” even though the children were over 16 years old and competent to consent. The argument was raised again in Re Bernadette [2011] FamCAFC 50, but the Full Family Court dismissed the appeal as the child had since turned 18 and the courts found that it did not have jurisdiction.

While some find these treatments distressing, it is hard to see what it added by requiring courts to review cases where medical staff, parents, and the child all agree about the appropriate course of action. Gender identity disorder is real and it requires therapy in the same way that other psychiatric and nonpsychiatric conditions need to be treated. The classification of treatment for gender identity disorder as “special medical treatment” is akin to telling people with gender identity disorder that they don’t have a “real” problem. The court’s role to supervise disputes over the child’s best interests should always be protected, but mandating court intervention in all cases like Jamie’s is overly intrusive.

—Cameron Stewart

Failure to Warn of a Risk That Did Not Materialise: A Normative Causation Issue in Wallace v Kam [2012] NSWCA 82

In the 20th anniversary year of the Australian case of Rogers v Whitaker (1992) 175 CLR 479, it is somewhat surprising to see a decision arise that grapples with a novel issue regarding failure to advise and warn a patient of the risks inherent in an operation.

The novel issue can be stated simply enough:

  • Assume that an operation carries with it two risks, A and B.

  • The doctor, in breach of his duty, fails to warn his patient of both A and B.

  • Risk A is a significant one, which would have caused the patient to refuse the surgery.

  • Risk B is a relatively insignificant one, which would not have caused the patient to refuse the surgery.

  • In the absence of the warnings of risks A and B, the patient agrees to the surgery.

  • The more significant risk A does not manifest itself; however, the less significant risk B does.

Should the doctor be liable for risk B? We note, however, that the structure below requires some assumptions not immediately available in the decision under discussion. As Allsop P noted at [11], it was only possible for the Court of Appeal to finalise the matter by assuming that Mr. Wallace was not warned of the risk of catastrophic paralysis and, if so warned, he would not have undergone the operation, and by coming to a view about the operation of s 5D(1)(b) on the facts as they stand.

Wallace v Kam [2012] NSWCA 82 came before the New South Wales Court of Appeal, as an appeal by Mr. Wallace from his claim heard before Harrison J of the New South Wales Supreme Court, the matter then being known as Wallace v Ramsay Health Care [2010] NSWSC 518.

The Facts and the Claim

In 2004, Mr. Wallace had undergone an L4–L5 posterior lumbar interbody fusion procedure with pedicle screw fixation, under the care of Dr. Kam, a neurosurgeon. A further surgical procedure was performed the following morning as a result of him experiencing extreme pain and paralysis in both legs upon regaining consciousness after the surgery. Mr. Wallace’s difficulties persisted after the further surgical procedure and he was subsequently diagnosed as having suffered bilateral femoral neurapraxia, that is, local nerve damage to the anterior femoral or thigh region of both legs, caused by lying prone for an extended period during the surgery (at [35]).

In the claim against Dr. Kam, Mr. Wallace alleged failures to warn of two material risks. Those were a 5 percent risk of paralysis (given the site of the surgery) and a risk of bilateral femoral neurapraxia (given that Mr. Wallace was required to lay face down on the operating table for an extended period during the surgery, which took some six hours).

The trial judge found that Dr. Kam had breached his duty of care to Mr. Wallace in failing to warn of the risk of bilateral femoral neurapraxia. However, the trial judge was not satisfied that Mr. Wallace would have declined the surgery had he been warned of that risk (at [37]).

On appeal, Mr. Wallace argued that had he been warned of both risks and, in particular, the risk of a catastrophic outcome of paralysis, he would not have undergone the surgery. He argued that the suggested breach in failing to warn of the risks of the operation caused the harm that Mr. Wallace suffered (at [39]).

The primary argument in favour of permitting recovery was that the duty to warn should not be subdivided, because the decision to undergo treatment is a single decision made by assessing all of the appropriate information: It could not be sensibly partitioned. A second related argument is that the risks were not entirely distinct ([at 169]).

A Gap in the Findings

The trial judge expressly found a failure to warn of the risk of bilateral femoral neurapraxia. Dr. Kam conceded that he should have done so. There was a breach of duty (at [46–47]). However, given a finding that Mr. Wallace would have proceeded with the operation even if warned of this risk, the trial judge held that causation was not established (at [156]).

Regarding the failure to warn of the 5 percent risk of paralysis, the trial judge made no finding as to whether Dr. Kam had failed to warn Mr. Wallace of the 5 percent risk of paralysis or whether such risk was material (see [49, 50, 60, 67]). Nor did the trial judge make a consequential finding as to whether Mr. Wallace, if warned of the risk of paralysis, would have consented to the operation. This was because his Honour considered that any failure to warn of a risk of a catastrophic outcome was causally irrelevant given that this risk did not eventuate (at [157]). The Court of Appeal did not require a finding on that issue in order to deal with the litigation.

The Minority View—Beazley JA

Justice Beazley was of the view that where there is more than one material risk—and a finding is made that a patient would not have undergone surgery if warned of other material risks—it is difficult to see reasons in logic or policy why a negligent doctor should not be liable notwithstanding that a different risk eventuated ([at 148]).

Her Honour characterised the facts in this case as being one where the failure to warn was of a material risk with very serious consequences should it occur and with a high risk of occurrence (at [150]). She expressed the view that in such a case, if it were to be found that a patient would not have undergone surgery if warned of the risk, then (applying the factual/normative causation framework set out in s 5D Civil Liability Act 2002 (NSW)) it would be appropriate that the scope of the defendant’s liability extend to the harm in fact caused (at [150]). Section 5D states:

  1. (1)

    A determination that negligence caused particular harm comprises the following elements:

    1. (a)

      that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and

    2. (b)

      that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).

Justice Beazley would have allowed the appeal and remitted the matter for rehearing to permit findings to be made as to whether Dr. Kam had disclosed the risk of a 5 percent catastrophic outcome and whether, if warned, the appellant would have had the operation (at [155]).

The Majority View—Allsop P and Basten JA

There were some differences between the approaches taken by Allsop P and Basten JA, who formed the majority. The judgement of Allsop P followed the structure of analysis required by s 5D Civil Liability Act 2002 (NSW), by addressing the factual and normative limbs of the causation analysis.

Factual causation, which involved an enquiry as to what Dr. Kam said and what Mr. Wallace would have done had full and adequate disclosure been made (at [11]), was easily dealt with, with Allsop P noting that the harm was factually caused (under s 5D(1)(a)) by the manifestation of an inherent risk that was related to the duty that was breached (at [14]). His Honour considered that “the harm here did not occur by the acts or omissions of a third party, or by misapplied anaesthetic or by some random act or circumstance of the day distinct from the duty to warn” (at [14]).

As to normative causation, which involves a value judgement (at [12]), his Honour found against the patient. In so finding, the President of the Court of Appeal appears to have focused on a consideration of the relationship between the two risks—paralysis from one cause and nerve damage from another—and whether or not these risks were separate and distinct or interrelated and interconnected risks that should not be separately examined or analysed (at [30]). In this case, his Honour considered that the risks were separate and distinct. Allsop P said (at [18–19]):

If, however, the risks can be seen as separate and distinct, that is one not bearing on the likelihood of the other occurring, or having no other relevant medical relationship or connection or no known relevant connection for the patient, the policy reasons behind the approach of Gummow J being transferred to the enquiry under s 5D(1)(b) are powerful. By this approach, recovery is limited to risks coming home that were material and that should have been disclosed, and that were not acceptable, in the sense that the patient would not have been willing to hazard that risk for the benefits of the procedure.

It is undoubted that the duty is a single comprehensive duty, but the harm for which the doctor should be held liable is the just and appropriate consequences of his or her breach of failing to warn of inherent risks. That, however, should not extend to harm from risks that the patient was willing to hazard, whether through an express choice or as found had their disclosure been made. This limits recovery to what was an unacceptable risk (or risks) and harm therefrom that has (or have) not been the subject of a warning.

Allsop J noted that in this case there was no suggestion that the neurapraxia was medically related to the risk of catastrophic paralysis—that is, the two risks were taken to be distinct risks, albeit part of the various matters that should have been disclosed (at [21]). His Honour then concluded that extending Dr. Kam’s liability through the enquiry under s 5D(1)(b) would not be appropriate, particularly given that the trial judge clearly found that the risk of nerve damage, although undisclosed, was acceptable to Mr. Wallace (at [23]). This was because “the rule of responsibility seeks to hold the doctor liable for the consequences of material risks that were not warned of that were unacceptable to the patient” (at [23]).

Obiter remarks were made by Allsop P to the effect that the outcome of the normative causation question might be different where the different risks could not be disentangled (at [18]).

In any given case, the facts will need to be examined in a complete enquiry under both (1)(a) and (b) in order that the relationship, if any, between the individual risks be understood. If one risk, being part of a body of risks about all of which there should have been warning, comes home it may be viewed, depending on the precise facts, in particular the medical connection between the risks or the importance of the relationship of the risks to the patient, as not merely the manifestation of that individual risk, but as part of a whole body of inter-related and inter-connected risks that should not be separately examined or analysed. Nor should the examination of the risks disclosed and what risk comes home be examined over-finely. These are medical questions, set in a context of the human and professional activity of warning of risks, the analysis of which is unlikely to be assisted by over refinement.

Basten JA agreed with Allsop P save on the question of whether the civil liability legislation provisions demanded a rigid separation of physical and policy considerations in assessing causation, although he noted that this difference did not affect the outcome in this case (at [181]). In relation to the normative causation question, his Honour also concluded that it was not appropriate to extend liability in this case, commenting as follows at [173]:

As a matter of principle, if the purpose of requiring payment of compensation is to require the defendant to bear the cost of the harm eventuating from his or her negligent conduct, it is far from clear why that burden should be imposed in circumstances where the harm could only have arisen from breach of another element of the duty. Once the trial judge was not persuaded that a warning as to bilateral femoral neurapraxia would have led to a postponement of the operation, why should the practitioner bear responsibility for breach of a separate duty to warn of a risk which did not materialise? Recovery in such circumstances appears opportunistic.

Comment

Basten JA suggested in his reasons that if the approach argued for by Mr. Wallace was accepted at [174, emphasis added]:

The causal relationship would be established by a finding (yet to be made) that, if warned of the potentially catastrophic risk, the appellant would not have undergone the procedure. On that analysis, any harm which resulted from the operation would have been sufficient to attract compensation. Whether the harm which in fact resulted was a risk as to which a warning should have been given would appear not to be a relevant consideration, once it is found that, if a warning as to that risk had been given, the appellant would nevertheless have proceeded with the operation. The same result would follow if the warning had in fact been given and, consistently with the finding of the trial judge, the appellant had proceeded to undergo the operation. However, it is hard to identify a principled basis upon which a practitioner should be made legally responsible to pay compensation to a person who suffered an adverse outcome as to which he or she had been properly advised and had accepted. By contrast, there is a clear justification for imposing liability on a medical practitioner in respect of the harm suffered where an adverse outcome of which a warning should reasonably have been given, but was not, has come to pass. The principle which supports recovery in the latter case cannot, without some significant variation or expansion, justify recovery in the present case.

Despite these concerns as to finding a principled basis for analysis, his Honour went on to find at [175] that “if the exclusion of something which otherwise qualifies as a necessary condition of the injury depends on a normative judgement, then it is appropriately excluded in the present case, pursuant to s5D(1)(b) and (4).”

It is not immediately clear why the scope of liability provisions could not similarly be applied to determine the limits of liability in the circumstances described above by Basten JA, regarding any harm that resulted from the operation. The scope of liability analysis requires a court to openly consider policy arguments as to whether and why responsibility for harm should be imposed on the negligent party. Such policy considerations might include reference to the literature and empirical studies referred to by Basten JA at [178] as to what patients want to know, how they make decisions, and whether the information provided is meaningful so as to advance autonomous decision-making (Gogos et al. 2011).

Wallace v Kam may well prove to be a suitable vehicle for consideration of these interesting and finely balanced issues by the High Court of Australia.

—Tina Cockburn and Bill Madden

Financial Harm and “Serious Harm” to Self, as a Criterion for Involuntary Treatment of Mental Illness

The Mental Health Act 2007 (NSW) permits detention and treatment of mentally ill persons without consent, in circumstances where the treatment is considered “necessary for the person’s own protection from serious harm” (s 14) and where there is no less restrictive alternative (s 12). All of Australia’s mental health acts are couched in similar terms, though the exact wording varies from jurisdiction to jurisdiction (Callaghan and Ryan 2012).The “serious harm” of the NSW Act is not defined and medical practitioners have been unsure about its scope for the purposes of permitting involuntary treatment. The recent Supreme Court case of Re J (no. 2) [2011] NSWSC 1224 has provided some clarification of the issue.

Mr. J was a 62-year-old man who exhibited an irritable and elevated mood consistent with mania (at [51]). Three months prior to his admission to hospital, he had been diagnosed with pancreatic cancer and, with six months to live, he had received a $700,000 payout on his life insurance. He had begun spending money in an unrestrained manner and there was evidence that his mental illness may have been affecting his ability to make financial judgments. His wife and doctors considered he was at risk of dissipating his money unwisely (at [6, 7]) in his final months. Mr. J had tried to buy property, donated money to charity, “given money to women in Thailand,” purchased international air tickets, and “given bank details and PIN numbers to friends to set up an international charity” (at [55]). Though there were reports that Mr. J may have been threatening to others (at [50]), the two doctors who assessed him both recommended involuntary treatment because of a risk to himself either “financially,” “to his reputation,” or by “misadventure” (at [45–47]).

Mr. J, who was an involuntary patient, applied for discharge from hospital and, when that application was refused, he appealed the refusal to the Mental Health Tribunal (MHRT). At the same time, Mr. J’s treating team asked for a financial management order to be made under the Trustee and Guardian Act 2009 (NSW) (ss 46, 47). The MHRT made an order for Mr. J’s continuing detention. The application for a financial management order was adjourned and no such order was ever made. Mr. J appealed against the detention order to the Supreme Court.

Allowing the appeal, White J stated that under the Mental Health Act “involuntary detention is to be a measure of last resort to protect against harm” (at [97]), and the issue in question was whether continued involuntary detention could be justified on the grounds that Mr. J might suffer financial harm by spending money when he was not capable of making a proper judgment about it due to mental illness. White J did not accept that the pattern of Mr. J’s expenditure was self-evidently a result of his mental illness and suggested that the reported changed attitude to spending in this previously frugal man might also have been due to him having now only a few months to live and having received a substantial sum of money as a cash payout (at [85]). In any case, White J held that if Mr. J’s judgment was affected by mental illness, “protection could have been provided by a financial management order if the Tribunal … were satisfied that the plaintiff was not capable of managing his affairs” (at [97]). Given that that alternative was available, White J held that the patient’s continued involuntary detention could not be justified merely on the basis that it was necessary to prevent him squandering his money. The court was not persuaded that the team had any other grounds to detain the patient. Accordingly, White J found that continued detention of the patient would have been unlawful and ordered his immediate discharge (at [112–113]).

In addition, although it was not disputed by the parties that “financial harm” should be included as a “serious harm” for the purposes of ordering involuntary detention, the Court expressed considerable scepticism about this interpretation. An explanatory note in the Mental Health Legislative Amendment Act 1997 specified that the term “serious harm” was envisaged to include “financial harm or harm to reputation” that had figured in an earlier iteration of the Act, however White J declined to rule on whether this legislative history should be taken into account. Without recourse to the explanatory note, White J doubted that “harm to a person’s finances” would qualify as “serious harm” and noted that “there was much to be said for the [argument] that serious harm … refers to … either physical harm or psychological harm” only. However as the issue was not argued by the parties, the question was set aside (at [89–93]).

In addition, White J commented on the extent to which symptoms of mental illness itself could constitute “serious harm” that might be used to justify involuntary detention. Responding to a claim by the treating team that the patient’s detention could be justified on the basis of the need to treat his mood instability, White J agreed that “section 14 would permit the continued involuntary detention of a person suffering from mental illness if that were necessary to protect the person from serious harm, being the harm associated with the illness itself.” Though he noted that “it would be necessary to consider the extent to which the illness was a harm for the person and to assess its seriousness” (at [101]).

Many psychiatrists take the view that the “serious harm” to be considered must be the sort that arises as a consequence of the illness, not the sort that is inherent to the illness. This approach would allow consideration of a patient’s perceived likelihood of suicide or the potential for physical deterioration, but would preclude consideration of the harms associated with the symptoms of the mental illness per se. Such harms might include the direct impact of a person’s abusive hallucinations or distressing delusions or severely depressed mood. This statement from Re J strongly suggests that this approach is overly restrictive and might unlawfully prevent many patients from accessing treatment under an involuntary order.

—Sascha Callaghan and Christopher James Ryan

The Human Right to Be Protected From Suicide: Rabone and another (Appellants) v Pennine Care [2012] UKSC 2

The right to suicide as a corollary of the general right to self-determination has received considerable public and judicial attention in the United Kingdom. It is now clear that under U.K. law, suicide is among the choices an autonomous individual is lawfully permitted to make and it will be unlawful for the state to obstruct that choice.

However, the recent decision in Rabone and another (Appellants) v Pennine Care [2012] UKSC 2 confirms that, while there is no general obligation on the state to prevent suicide, such an obligation will arise in certain circumstances as part of the state’s obligation to protect the “right to life” under article 2 of the European Convention on Human Rights 1950 (the Convention), and it may extend to voluntary psychiatric patients where coercive powers may be used to detain the person in hospital.

Melanie Rabone was 24 years old when she was admitted to hospital after a suicide attempt in April 2005. In the six weeks prior to that admission, she had made two other suicide attempts and had spent two weeks in hospital in early March. After her April admission, Melanie was diagnosed with “a severe episode of a recurrent depressive disorder” and, after seven days on the ward, her treating team thought she showed sufficient signs of improvement to be allowed a short leave from hospital. Following a meeting with her psychiatrist, she was discharged into the care of her parents for two days, although her parents were apparently not in favour of that decision. In the late afternoon of the second day, Melanie left her parents’ house and hanged herself from a tree in a local park (see [4–21]).

Melanie’s parents brought an action against the Pennine Care NHS Trust for breach of article 2 of the Convention, which provides simply, that “Everyone’s right to life shall be protected by law.” This has been interpreted broadly by the European Court of Human Rights and is now understood to include a positive obligation on states to protect life in particular circumstances. In the health care setting, this obligation includes a general duty to have in place legal and administrative systems to protect hospital patients from professional incompetence. It also entails an obligation to take “preventative operational measures” to protect specific individuals from “real and immediate” risks to their life, in circumstances where the state is found to be responsible for the person (Osman v United Kingdom (2000) 29 EHRR 245).

This duty has been found to encompass an obligation to protect prisoners (Keenan v United Kingdom (2001) 33 EHRR 49), people in immigration detention (Slimani v France (2006) 43 EHRR 487), detained psychiatric patients (Savage v South Essex Partnership NHS Foundation Trust [2009] AC 681), and military conscripts (Kilinc v Turkey (Application No 40145/98)) from risk of suicide. The duty was also found in Mammadov v Azerbijan (Application No 4762/05) (2009), where the applicant’s wife set fire to herself during a police raid.

Conversely, the duty was found not to have been breached where a patient’s death was brought about by medical negligence, with the European Court of Human Rights holding that, where the state has made adequate provisions for ensuring high professional standards, errors of judgment or negligence by doctors in the treatment of a patient would not be sufficient to establish a breach of article 2 (Powell v The United Kingdom (2000) 30 EHRR CD 362).

The question for the court was whether the death of a voluntary patient whilst on leave from a psychiatric hospital was akin to a simple act of medical negligence for which no breach of article 2 would be found, or whether the fact that she was a psychiatric patient (although she was not detained) meant that the state had a specific operational duty to protect her.

The court said that the operational duty will arise wherever the state has assumed responsibility for an individual’s safety, as is clearly the case for detainees who are under state control. The obligations will be particularly stringent where the person is vulnerable because of his or her physical or mental condition (see Lord Dyson at [22]; Lady Hale at [102]), and where sufficient vulnerability exists, the duty may still exist even where the state has not assumed full control over the person—such as in the state’s general responsibility to protect children (Lord Dyson at [23]; Lady Hale at [104]).

The court drew a distinction between voluntary psychiatric patients and ordinary medical patients, noting that statutory powers of detention available under the Mental Health Act 1983 (UK) could be used to protect the former class of patients from harm, should they try to leave hospital. This indicated a high degree of control, even where these powers were not exercised. In addition, it was noted that the impact of mental disorder, psychoactive medication, and the hospital environment on patients’ decision-making capacity meant that mentally disordered patients were more vulnerable than general medical patients. Taken together, the factors gave rise to an operational duty to protect patients from known risks to their life, including the risk of suicide (Lord Dyson at [28–30]; Lady Hale at [105]).

The court took into account differing assessments of Melanie’s risk of suicide provided by expert psychiatric witnesses and held that even a “low to moderate” risk of suicide was “real and immediate” for the purpose of establishing a breach of the operational duty. The court determined that, notwithstanding Melanie’s right to personal autonomy, her request to leave hospital should not have been agreed to by her doctors and, if necessary, statutory powers of detention could and should have been used to protect her (at [43, 105]). Consequently, it was held that the trust failed to take all steps reasonably necessary to avoid a known risk to her life in breach of Article 2.

—Sascha Callaghan