Lisa (a pseudonym) [2024] NSWCATGD 17

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lisa (a pseudonym) [2024] NSWCATGD 17 Hearing dates: 10 September 2024 Date of orders: 18 September 2024 Decision date: 08 October 2024 Jurisdiction: Guardianship Division Before: A Britton, Deputy President Dr B McPhee, Senior Member (Professional) S Bullock, General Member (Community) Decision: The Tribunal is not satisfied that it is necessary to carry out the proposed treatment on Lisa in order to save Lisa's life or to prevent serious damage to Lisa's psychological or physical health. Therefore, the Tribunal cannot give consent under s 175(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), to the carrying out of the proposed treatment. Catchwords: GUARDIANSHIP – application to NCAT under s 175 of the Children and Young Person (Care and Protection) Act 1998 (NSW) in respect of transgender child – whether gender affirming hormone therapy constitutes "special medical treatment" – whether gender affirming hormone therapy treatment is reasonably likely to render child permanently infertile – whether the Tribunal is limited to considering the effect of proposed treatment on the child's fertility up to age 16 GUARDIANSHIP – discretion to consent to special medical treatment (gender affirming hormone therapy) under s 175(3) of the Children and Young Person (Care and Protection) Act 1998 (NSW) – whether necessary to carry out gender affirming hormone therapy in order to save the child's life or to prevent serious damage to the child's psychological or physical health – gender affirming hormone therapy not necessary in order to save the child's life or to prevent serious damage to the child's psychological or physical health – Tribunal cannot give consent to gender affirming hormone therapy WORDS AND PHRASES – "reasonably likely" – Children and Young Persons (Care and Protection) Act 1998 (NSW), s 175(5) Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 9, 175, 175(1), 175(2)(b), 175(3), 175(5), 175(5)(a), 175(5)(a)(i)-(ii), 175(5)(c)-(d) Children (Care and Protection) Act 1987 (NSW), s 208 (repealed) Civil and Administrative Tribunal Act 2013 (NSW), s 45(4)(c) Cases Cited: Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29 Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530 Re the Will of Bridget [2018] NSWSC 1509 Texts Cited: Children (Care and Protection) Further Amendment Act 1988 (NSW); NSW, Parliamentary Debates, Legislative Council, 13 October 1988, 2202 (Virginia Chadwick, Minister for Family and Community Services) I De Nie, NM van Mello, E Vlahakis, C Cooper, A Peri, M den Heijer, A Meißner, J Huirne, KC Pang, "Successful restoration of spermatogenesis following gender-affirming hormone therapy in transgender women" (2023) 4(1) Cell Reports Medicine Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision Royal Children's Hospital Melbourne "Australian Standards of Care and Treatment Guidelines: For Trans and Gender Diverse Children and Adolescents", Version 1.4 S Bertelloni, G I Baroncelli, M Ferdeghini, F Menchini-Fabris, G Saggese, "Final height, gonadal function and bone mineral density of adolescent males with central precocious puberty after therapy with gonadotropin- releasing hormone analogues" (2000) 159(5) European Journal of Pediatrics, 369-374 World Professional Association for Transgender Health (WPATH), "Standard of Care for the Health of Transgender and Gender Diverse People", Eighth Edition Category: Principal judgment Parties: Hunter New England Local Health District (Applicant) Lisa (Respondent) Ministry of Health NSW (Joined Party) Representation: Counsel: