CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v YOUNG PERSON X [2013] NZHC 3066

CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v YOUNG PERSON X [2013] NZHC 3066 [20 November 2013]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO11D OF THE FAMILY COURTS ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEHTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY-COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-004621[2013] NZHC 3066BETWEEN CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTApplicantAND YOUNG PERSON XRespondentHearing: 18 November 2013Appearances: P K Hamlin for ApplicantA G Mahon Counsel to AssistA K Finnie for RespondentJudgment: 20 November 2013JUDGMENT OF COURTNEY JThis judgment was delivered by Justice Courtneyon 20 November 2013 at 11.00 ampursuant to R 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate..Introduction[1] X is 15 years old and has had a childhood in which neglect, abuse and trauma have predominated. X was born male but for some time has expressed a strong desire to live as a female and, in particular, to begin medical treatment to start the transition to that life.1 She is currently under the guardianship of the High Court, with theChief Executive appointed the Court's agent. The Chief Executive has applied for an order enabling X to commence the use of hormone blockers, a medically reversible treatment resulting in the cessation of masculinisation.[2] A number of professional advisers are involved in X's care. Three of them,paediatrician, Dr John Newman, psychiatrist, Dr Caleb Armstrong and clinical psychologist, Ms April Trenberth, provided reports for the purposes of this application. In addition, there was a meeting between Dr Newman and Ms Trenberth in advance of the hearing.[3] However, by the time of the hearing there were indications that X may be ambivalent about beginning the proposed treatment. In an updating report filed prior to the hearing counsel for X, Mr Finnie, relayed a conversation he had with X last week in which X showed markedly less enthusiasm for commencement of the hormone blocking treatment. Then on Thursday 14 November 2013 X absconded from the one-on-one placement to which she had been moved the day before. As at the date of the hearing on 18 November she had still not been found.[4] In light of this development Mr Hamblin, for the Chief Executive, amended the application to seek only a permissive order that would enable such treatment to be commenced rather than the order originally sought that treatment be commenced. For the reasons that follow I declined to make the order sought, though only as an interim position. The matter will be reviewed again next year.1 In accordance with the practice adopted by most of the parties involved in X's care, I use thepersonal pronouns she and her when referring to X.The expert views[5] Dr Newman advocated the commencement of hormone blocking treatment soas to relieve X's distress at the development of masculine characteristics. He thoughtthat X's reported ambivalence could be explicable either on the basis that X was uncertain about any kind of treatment at this stage or (more likely) that she had decided to pursue the unorthodox and less safe course of seeking oral contraceptives on the street, a course that Dr Newman had specifically counselled against. Although there had previously been concern to ensure that any treatment was started as early Dr Newman indicated that because of the stage that X has now reached in terms of physical development timing was not to be regarded as critical.[6] Psychiatrist, Dr Caleb Armstrong, who was been engaged at a relatively late stage as a result of the previously engaged psychiatrist being unavailable for the hearing, considered that X met the criteria for gender identity disorder, whilstacknowledging X's other significant mental health and behavioural issues.[7] Clinical psychologist, Ms April Trenberth had previously expressed serious reservations about proceeding with the proposed treatment. In essence, she considered that X's numerous psychological issues arising from early neglect, trauma and abuse underlie X's gender identity issue and should have been addressedmuch earlier. She considered that addressing the gender identity issue throughhormone blockers risked adding to X's psychological problems rather than solving them.[8] Notwithstanding this view, at the meeting between Dr Newman and Ms Trenberth, agreement was reached that that X should commence the hormone blockers. This agreement was recorded in a joint memorandum of counsel dated 15 November 2013. The agreement represented a significant change in Ms Trenberth'sposition and at the hearing she explained that she had agreed to support the plan onlybecause she viewed the outcome as a fait accompli, given X's apparentdetermination to pursue it, not because she agreed with it on clinical grounds.[9] Before me, however, Ms Trenberth expressed the view that X's currentambivalence provided an opportunity to revisit the whole issue of whether hormone blockers should be introduced or whether a better outcome might be achieved by addressing his other problems through psychotherapy before embarking on hormone blocking treatment.[10] At the conclusion of this evidence I was doubtful that the permissive order being sought would be appropriate. There was uncertainty over what X actually wanted. In addition, there was inadequate information as to when, how and by whom the ultimate decision to begin treatment would be made.A further development[11] The issue was resolved for me with a development late in the day. Just before the afternoon adjournment Mr Finnie received from Child, Youth & Family a copy of a note said to have been written by X and left with her caregiver prior to her absconding. This note significantly altered my view of the case. In it X apologised for leaving and expressed her gratitude for all that the caregiver had done for him. She concluded "I don't want the blockers for now".[12] In the face of an unequivocal statement of this kind I could not contemplate making an order that allowed non-essential medical treatment for which consent was needed. Counsel and the witnesses accepted this view.[13] However, it would be premature to reach a final decision at this stage. X is still missing and it is unknown what her view will be when she is finally located. Further, Dr Newman has not had the benefit of a report by psychologist Pania Thompson which Ms Trenberth referred to in reaching her conclusions. I therefore make the following orders:(a) As an interim step I decline to make the application sought at this stage;(b) The application is to be adjourned to a date in February or March 2014 to be allocated by the Registry;(c) I will have a telephone conference with counsel at 9 am on Monday, 2 December 2013 to discuss what further steps are to be taken in advance of the next hearing. For the purposes of that telephone conference Mr Finnie will file a further updating report and Mr Hamlin will file a memorandum outlining proposed arrangements;(d) I direct that Pania Thompson's report of 3 July 2013 be released toDr Newman;(e) I make an order under s 133(2) Care of Children Act 2004 appointing Ms Trenberth for the purposes of this proceeding.____________________P Courtney J