CHILD AND FAMILY SERVICES REVIEW BOARD

M.B.S.L.

v.

Youthdale Treatment Centres

REASONS FOR DECISION ON MERITS

Date: August 15, 2008

Citation: 2008 CFSRB 78

Indexed as: M.B.S.L. v. Youthdale Treatment Centres (CFSA s.124)

1On July 23, 2008, the Child and Family Services Review Board (the “Board”) received the application of M.B.S.L., d.o.b. July […], 1993 (the “Child”) for review of emergency admission to the Secure Treatment Program at the Youthdale Treatment Centre, pursuant to section 124(9) of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). All of the parties were informed of the Board’s intention to hear this application on July 25, 2008 at the Youthdale Treatment Centre, Toronto (“Youthdale”).

2At the hearing on July 25, 2008 the Child was represented by Lynda Ross, Counsel from the Office of the Children’s Lawyer. Youthdale was represented by Jordan Cutler, Barrister and Solicitor with Miller Thompson LLP.

ISSUE

3The Child was admitted on an emergency basis to the Secure Treatment Program (the “Program”) at Youthdale on June […], 2008. She was seeking an order releasing her from the Program on the basis that the criteria for emergency admission as set out in subsections 124(2)(a) to (e) of the Act had not been met.

PROCEDURAL MATTERS

4The parties declined to give opening statements. Ms. Ross indicated that the Child was contesting all five criteria as set out in subsections 124(2) of the Act.

5The evidence was a Document Brief from Youthdale with 6 tabs (Exhibit Y-1), a letter written by M.B.S.L. (Exhibit Y-2 ) and testimony from the following witnesses:

M.B.S.L. - the Child

C.L. - the Child’s Mother

D.L. - the Child’s Father

J. - Youthdale Crisis Support Team Member

BACKGROUND

6M.B.S.L. is a fourteen year old girl living sporadically with her mother, C.L., and her twelve year old sister, A., in C.. She has a twenty-one year old sister who is in her fourth year at the University of Ottawa and an eighteen year old brother who is currently living and working in Ottawa. Her mother is self-employed, works fulltime and operates her own café. Her mother is divorced from her father.

7M.B.S.L. has a strained relationship with her father who is very firm and was a member of the Canadian military. During the last eight months, M.B.S.L. has resided mostly with her father, D.L., and attended [School] in [ ]. She will be going into Grade 10. Recently she has been suspended from school in March, 2008 for smoking marijuana and in April or May of 2008, she was suspended for causing a disturbance on the bus when she dumped a bottle of water on another girl during a conflict.

8C.L. reports that there is a history of depression in the family. C.L. and her mother both suffer from depression. C.L. has suffered from social anxiety, panic attacks, shyness, migraines, and depression for most of her life. D.L. has been described by his ex-wife as being impulsive, manipulative, and susceptible to mood swings and in the past has had two psychiatric admissions. Their eldest son, Z., was diagnosed with ADHD in his childhood and has suffered from anger outbursts. A. also suffers from anger outbursts.

9For the past few years, M.B.S.L. has been acting out after a brief sexual encounter with an older teenager. She began self-harming by cutting her arms and wrists and has recently told her stepsister that she has cut the inside of her vagina. She has made two suicide attempts. In the summer of 2007, she was admitted to [hospital] for an overdose of antibiotics prescribed for a bladder infection. Before Christmas 2007, she was admitted to the local hospital in C. for emergency care after cutting both her wrists. She was taken to [another hospital] and remained on the adolescent psychiatric unit for five days.

10M.B.S.L. has been very flirtatious with men since early childhood. She has become sexually promiscuous and has abused drugs. She was suspended from school for smoking marijuana on school property. She has had two episodes of severe alcohol intoxication which required hospital treatment. At the age of nine, M.B.S.L. began suffering from eating difficulties. She would fast and then her mother would find food hidden inside her drawers and wardrobe. She has made allegations of sexual abuse against her father which could not be verified by the Children’s Aid Society.

11C.L. sought help for M.B.S.L. from her family doctor and was involved with counselling at N.P. and T.. Last fall she saw a private counsellor for a period of six weeks. M.B.S.L. was taken for counselling with Dr. C., a behavioural paediatrician in the G. area. M.B.S.L. did not cooperate with her and refused to take the medications she prescribed. The Children’s Aid Society of Guelph has been involved.

ANALYSIS

Criterion (a) the child has a mental disorder.

12A mental disorder, pursuant to the Act, is defined as a substantial disorder of emotional processes, thought or cognition, which grossly impairs a person’s capacity to make reasoned judgments.

13The Board received the Youthdale Admission Summary of Dr. M.S., Staff Psychiatrist, dated July […], 2008. Dr. M.S. gave a provisional diagnosis of borderline personality traits and wanted to rule out mood disorder, anxiety disorder, post-traumatic stress disorder, ADHD, and the possibility of antisocial personality traits. The stressors relate to a dysfunctional family, child/parent relational problems, and a high probability of sexual abuse. Dr. M.S. notes that over the last year, the Child has been very poor functioning, chronically self-harming and suicidal.

14In the Statement of Reasonable Grounds, Emergency Admission to Secure Treatment, Dr. M.S. believes that the child has a mental disorder, a substantive disorder of emotional process and thought. This is evidenced by poor judgement, dangerous acting out such as alcohol abuse to the point of dangerous intoxication, overdose with medicines, cutting different parts of her body, and promiscuous sexual behaviour. Dr. M.S. signed this statement indicating that “there are now reasonable grounds that all criteria for emergency admission to secure treatment at Youthdale are met”.

15The Board heard and received evidence about the Child’s behaviours that demonstrated grossly impaired judgement.

16C.L. testified that over the last few years, M.B.S.L. has changed in behaviour from a genuine happy-go-lucky child to one prone to suicidal tendencies, anger, aggression, mood swings and depression. She has a borderline eating disorder. Her eating habits have changed. She hoards food. She thinks she is fat; then goes on a binge. She has numerous cuts on her arms and she has admitted to her stepsister that she cuts herself on her genitals so that the cutting is not detected. She says that she likes the feel of the razor blade on her arm because it makes her feel alive. She has made journal entries saying that she wants to die and that she wished it would end.

17C.L. stated that M.B.S.L. abuses drugs and alcohol. M.B.S.L. has been suspended from school for using marijuana on school property. C.L. described an incident when she found M.B.S.L. on the floor incoherent, with her eyeballs rolling. She had no muscle tone and C.L. thought she had taken something for suicide. C.L. called 911 and rushed her to hospital. M.B.S.L. had downed a quantity of homemade vodka sufficient to cause alcohol poisoning.

18D.L. testified that he fears everyday that M.B.S.L. would harm herself. If left alone, he is afraid she would take off. During the past three or four months she has only been left alone on the way to and from school. She frequently skips school and he gets calls from the school two to three times a week. She was suspended from school in May for two days for assaulting a student by dumping a bottle of water on her while on the school bus. M.B.S.L. has been aggressive to him and her sister, A.. When told to go to her room, she kicked the laundry basket, grabbed items in the room and threw a bottle of water at him in front of the Children’s Aid worker. She has been verbally aggressive to both him and his wife. She tells them to “shut the f- up”. She calls him profane names. In May of 2008, the Catholic school she attends called and said that she was not wearing panties. Her religion teacher calls frequently reporting her negative behaviour throughout the whole year.

19M.B.S.L. testified that she had thoughts of hurting herself but not of dying. She never cut so deep that she would die. The pain in her wrist makes everything else go away. When she overdosed on antibiotic pills she didn’t think about it, she took them all. She does not remember the incidence of alcohol poisoning. She says that she never tried to end her life by taking alcohol. She found something on the computer about Satan, but does not remember writing “The beast has spoken” on her pillow. M.B.S.L. told the admitting doctor at Youthdale that she cannot remember any facts from her childhood. The only facts she could remember were within the last year.

20The Board concludes that the Child has a substantial disorder of emotional processes. The Child’s tendencies for self-harm, the cutting, the ingestion of alcohol and drugs to the point of serious bodily harm are indicators of this substantial disorder.

21The panel finds that the Child has a substantial disorder of emotional suicide processes which grossly impairs her capacity to make reasoned judgments.

22The Board is satisfied that criterion (a) has been met.

Criterion (b) the child has, as a result of the mental disorder, caused, attempted to cause or by words or conduct, made a substantial threat to cause bodily harm to himself, herself or another person.

23C.L. testified that during the previous year, M.B.S.L. made two suicide attempts which resulted in hospital admissions. M.B.S.L.’s most recent incident of self-harm occurred in June after a crisis situation with her father. Her school counsellor offered her a home and M.B.S.L. spent a week with her. The counsellor found a pill cutter blade and another blade under M.B.S.L.’s pillow. There was blood all over her bed. M.B.S.L. said it was a nose bleed, but the counsellor thought the blood was too low on the bed for that. Her stepsister said that M.B.S.L. told her she cuts herself around the genitals so that it can’t be seen. M.B.S.L. testified that she took the blades “just in case.”

24D.L. testified that he found a letter that M.B.S.L. wrote on his laptop computer with an electronic date of May […], 2008. In this letter, she said, “I want help” and “I want to fall asleep and never wake”. D.L. states that he found many notes in her room saying that she wants to die.

25C.L. testified that M.B.S.L. wishes that her dad was dead, that he die a slow painful death and that he be hit by a truck. She has told her stepsister that she wants to kill him by putting something in his drink. D.L. testified that his wife found a letter in her room taped to a voodoo doll.

26The Board finds that M.B.S.L. caused bodily harm to herself and made a substantial threat to cause serious bodily harm to her dad. The Board is satisfied that Criterion (b) has been met.

Criterion (c) the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to himself, herself or another person.

27Counsel for the Child conceded this point, and the Board accepts the fact that the secure setting at Youthdale minimizes the risk of harm to the Child and others. We find that criterion (c) has been met.

Criterion (d) treatment appropriate for the child’s mental disorder is available at the place of secure treatment to which the application relates.

28At the time of admission a full assessment and diagnosis had not been completed. J., a member of the Crisis Support Team at Youthdale, testified that the goals at Youthdale are to stabilize the Child and provide indepth psychiatric assessments.

29Dr. M.S. in the Admission Summary recommends that the Child be introduced to the unit in a very gradual way and that the use of person and mechanical restraints be minimal. If the Child becomes agitated, it would be better to chemically restrain her. Dr. M.S. would start a trial of SSRI’s and atypical psychotics used as mood stabilizers if she agrees to take medications. After discharge, Dr. M.S. would recommend continued treatment in a residential care facility or, if possible, day treatment with the use of dialectical behaviour therapy for her Borderline Personality Traits and cognitive behaviour techniques in case she is diagnosed with Post-Traumatic Stress Disorder.

30The Board accepts that during the intake stage, a full diagnosis and treatment plan cannot be completed and that this would be completed during a stay at Youthdale. Youthdale provides an appropriate setting for finding a diagnosis for this Child, and for the appropriate treatment. The Board accepts the fact that psychiatric counselling and treatment is available in a secure environment at Youthdale and that this would be beneficial for the Child.

31The Board finds that criterion (d) has been met and that Youthdale can provide the appropriate treatment for the Child’s mental disorder

Criterion (e) no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances.

32C.L. testified that she sought assistance from a variety of sources for M.B.S.L.. She was treated by a counsellor for a period of six or seven months at N.P. The counsellor was not successful in getting to the root of M.B.S.L.’s problems and her true emotions. C.L. took her to see her family doctor, Dr. H., in S.. She then sought the services of a private counsellor last fall for a period of six weeks. This counsellor could not engage M.B.S.L.. During her suicide attempt, M.B.S.L. was admitted to [hospital] and then transferred to another [hospital] for assessment for five days. She was released without treatment.

33In January or February of 2008, she began seeing Dr. C., a behavioural paediatrician. Dr. C. prescribed some medications, but said there was nothing she could do until M.B.S.L. was ready. In February M.B.S.L. was offered counselling services at T.. Two days prior to admission, Dr. C. told the parents to contain her. When asked how to do this, they were told to call Children’s Aid. The Children’s Aid Worker was away. While researching the resources provided by the Children’s Aid Society, they discovered the services that Youthdale can provide.

34The Board is of the view that counselling services offered by N.P, the private counsellor, T., and Dr. C. have been unsuccessful either from an assessment or treatment perspective. J. testified that no less restrictive method of treatment was available given the lack of resources in C.. The Child’s unwillingness to engage in treatment has resulted in all the counselling services being ineffective. Given the Child’s inclination to self-harm, the Board accepts that a secure treatment facility is necessary for this child.

35The Board finds that criterion (e) has been met.

DECISION

36On the basis of the evidence presented and in keeping with the principles contained in section 1 of the Act, the Board is satisfied that the relevant criteria were met at the time the Child was admitted to the Program and for that reason order that the Child’s application for release from the secure treatment setting be denied.

Mary Wong

Presiding Member

Alina Lazor

Panel Member

Dated at Toronto, Ontario this 15^th^ day of August, 2008.

CHILD AND FAMILY SERVICES REVIEW BOARD

M.B.S.L.

v.

Youthdale Treatment Centres

DISSENTING REASONS FOR DECISION

Date: August 15, 2008

Citation: 2008 CFSRB 78

Indexed as: M.B.S.L. v. Youthdale Treatment Centres (CFSA s.124)

1This is an application to the Child and Family Services Review Board (the “Board”) by M.B.S.L., d.o.b. July […], 1993 (the “Child” or “M.”) for a review of her emergency admission to the Secure Treatment Program at the Youthdale Treatment Centre, (“Youthdale”) pursuant to section 124(9) of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act” or the “CFSA”).

2I agree with the reasons of the other panel members with respect to criteria (a) through (c) of section 124(2) of the Act.

3In my view, the facility has led insufficient evidence to satisfy criteria (d) and (e). As such, pursuant to subsection 124(13), the Board was obliged to release the Child.

4Subsection 124(13) provides that:

The Board shall make an order releasing the child from the secure treatment program unless the Board is satisfied that the child meets the criteria for emergency admission set out in clauses 124(2)(a) to (e).

5The onus is on the facility, as a party to the proceeding, to lead sufficient evidence to satisfy the Board that the criteria have been met. The Board must decide, on the balance of probabilities, whether all criteria have been met. If the Child does not meet even one of the criteria for admission, the Board has no choice but to release the Child.

Criterion (d) treatment appropriate for the child’s mental disorder is available at the place of secure treatment to which the application relates.

6In this case, Youthdale did not call the admitting psychiatrist and instead chose to file the admission report. The report did not adequately address the precise treatment available at Youthdale to treat the Child’s specific mental disorder. The report did address the issue of chemical versus physical restraints and possible medication as a mood stabilizer. There was no discussion in the report about the available treatments for the Child’s specific needs such as her cutting, alcohol abuse, eating difficulties, lack of engagement, dysfunctional family issues or possible sexual abuse. This Child’s treatment needs might be quite different from a child who is more physically aggressive or lights fires, for example. The Board should not rely on the generic availability of drugs and restraints, which arguably go to criteria (c), as the sole basis upon which to find that criterion (d) was satisfied. Further information was required.

7The witness for the facility, the Crisis Worker, did not provide any particulars about what treatment, appropriate for the Child’s mental disorder, was available. She was not involved in the plan regarding treatment, nor would she have been as that was within the expertise of the psychiatrist. When asked if Youthdale could provide treatment, her answer was essentially yes, according to [the wishes of] the psychiatrist. There was no evidence about particular treatments or about the appropriateness of the treatments as they related to the mental disorder/provisional diagnosis. While the Crisis Worker provided information on criteria (c), she was unable to provide any details regarding treatment [criteria (d)].

Criterion (e) no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances.

8The facility failed to lead evidence upon which the Board could properly conclude that no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances.

9Again, Youthdale did not call the admitting psychiatrist. Nor did it call the treating pediatrician. It simply relied on the inclusive statements of the admitting psychiatrist. Youthdale did not have a statement from the psychiatrist stating directly that she supported the admission and it did not have an assessment from her ruling out less intrusive options.

10The report of the admitting psychiatrist did not address criteria (e) at all. The Statement of Reasonable Grounds ruled out outpatient treatment and private counseling as being inadequate. It did not address other, less restrictive methods of providing treatment. The form states that day treatment in the Child’s city or at the psychiatric inpatient unit were not available. While availability is not the legal issue, there was no evidence corroborating the latter statement. There was no evidence about whether or not these options had been explored. This is a form and not a report and the psychiatrist was not called.

11The Crisis Worker did not testify about the appropriateness of less restrictive methods. She testified that she was not in the position to judge beyond the short term nature of hospital admissions. However, she went on to state that what had been tried previously was not effective, in her view, because the Child was not willing to engage and it was not intensive enough to keep her safe. While she did testify about a lack of resources in the Child’s local area, this is not relevant to the legal test. The consideration is not whether less restrictive means are available but whether or not they are appropriate. Availability is an issue for case managers and not the Board. In any case, there was evidence that less restrictive methods of treatment had not been explored for M.. Such options included a one-on-one youth worker, treatment foster homes and residential treatment. According to the Crisis Worker, the focus of the referral was on the Youthdale placement and not on alternatives.

12It is not the fault of the parents, who demonstrated a great commitment to helping their daughter, that these options were not explored or ruled out as being inappropriate. It was for the facility, as the party seeking to justify ongoing admission, to lead evidence from an appropriate source such as one of the clinicians who had seen the Child, to indicate that traditional forms of less restrictive treatment such as a one-on-one youth worker, specialized treatment foster homes and residential care with around the clock staffing, were not appropriate means of providing treatment and why. There is more than one means of treating a child, including more than one means of “containing” or “engaging” a child to provide safety and minimize risk. The legislation mandates that the less restrictive means be ruled out. There was simply not enough evidence upon which to decide that criterion (e) had been met. In my view, without any such evidence, the Board had no choice but to release the Child.

CONCLUSION

13The Board is charged with an important decision affecting the liberty interests of the Child. It is imperative that the party seeking to uphold the admission address each criterion in a meaningful way that complies with the law and with evidentiary standards of proof. The lack of proper evidence on each and every criterion devalues and undermines the legislative intent which is to only admit children against their will to secure facilities in the clearest of cases. By virtue of Part VI of the CFSA, such an admission is an “Extraordinary Measure.” In this case, the necessary evidence on two of the five admission criteria was lacking.

14In light of the above, I would have found that the Child did not meet criteria (d) and (e) under subsection 124(2) of the CFSA for admission to emergency secure treatment. I would have released the Child as the Board must do when any of the criteria are not met.

Sheena Scott

Panel Member