C.J. v. Youthdale Treatment Centres, 2009 CFSRB 72

CHILD AND FAMILY SERVICES REVIEW BOARD

C.J.

v.

Youthdale Treatment Centres

REASONS FOR DECISION ON MERITS

Date: November 18, 2009

Citation: 2009 CFSRB 72

Indexed as: C.J. v. Youthdale Treatment Centres (CFSA s.124)

1C.J. (the “Child”) applied to the Child and Family Services Review Board (the “Board”) on November 6, 2009 to be released from the Youthdale Treatment Centre, Secure Treatment Program (the “Program”). The Child was admitted to the Program on November […], 2009. A hearing into her application took place on November 10, 2009 at the Youthdale Treatment Centre, Toronto (“Youthdale”).

2The Board must decide whether each of the criteria set out in subsection 124 (2) of the Child and Family Services Act R.S.O. 1990, c. C.11 (“CFSA”) was met at the time of admission, on the balance of probabilities, having regard to the best interests of the Child. The Respondent’s position is that all five criteria were met and that the application should therefore be denied. The Child’s position is that all of the criteria were not met and that consequently, she should be released.

3Pursuant to section 124 (13) of the Act, upon review,

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).

4The criteria are set out in the legislative provisions, as follows:

124 (2) The administrator may admit a child to the secure treatment program on an application under subsection (1) for a period not to exceed thirty days where the administrator believes on reasonable grounds that,

a. the child has a mental disorder;

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 serious bodily harm to himself, herself or another person;

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;

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

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

5After hearing Youthdale’s evidence in the matter, counsel for the Child made a Motion for Non-Suit on the grounds that there was no evidence upon which a finding could reasonably be made that all five criteria for admission were met at the time of admission. For the reasons that follow, the Board granted the motion for Non-Suit and found that Youthdale had not discharged its burden of presenting threshold evidence that the Child met all five criteria for admission. The Board found there was no evidence to establish that criteria (b) and (e) were met at the time of admission and ordered that the Child be released. These are the reasons for that order.

6The panel heard from the following witnesses:

• K.S., Children’s Service Worker, Catholic Children’s Aid Society

• E.L., Supervisor at [the Home]

• Dr. K.C., Psychiatrist at Youthdale

FACTS

7The Child is 14 years old and has been in the care of the Catholic Children’s Aid Society (“CCAS”) since August 2005. The Child has four siblings who are all in the care of the CCAS. She has visits with her mother and siblings, but not with her father who is divorced from her mother. The Child’s mother feels she is unable to parent her due to behavioural issues and failure to recognize or follow rules. The Child has been a resident of [the Home], which is part of the [Program], since December 2006. The [Home] is a residence for approximately 9 girls ranging in age from 12 to 18. The Child attends a section 23 classroom at the [Home], where she follows an Individual Education Plan (“IEP”).

8The Child has been diagnosed with a learning disability, low cognitive functioning and possible depression. She also has difficulty in social relationships. At [the Home], she was involved in a number of extra-curricular activities including horseback riding, dance, Pathfinders and Guides. The Child either quit or was asked to leave all of those activities due to inappropriate sharing of information and language. She continues to attend individualized art therapy, although with difficulty.

9Starting in approximately March 2009, she began to experience episodes, described as “pseudo-seizures” or “dissociative episodes”, in which she disassociates from reality. She loses physical and mental control during these episodes, which last several minutes. During the episodes, the Child regresses in her language, drools, is oblivious to her surroundings, and has lost control of her bowels on one occasion. After recovery, she does not remember the episode. An ambulance has been called on occasion, but she recovered prior to arrival at the hospital.

10There have been various tests to find the cause of these seizure-like episodes. In March 2009, the Child was tested for neurological causes and underwent an ECG, cat scan and sleep deprivation test. No physical causes were found, leading to the theory that the episodes are stress-induced. The Child has not yet been seen by a neurophsychologist. E.L., Supervisor at the [Home], testified they have been unable to identify any triggers to the episodes which can occur when she is calm or agitated.

11Ms. E.L. testified that C.J. is depressed and does not enjoy life. She testified that the medication prescribed to her does not appear to be working and the Child is not improving.

12The Child is not aggressive and has never hurt others. She has never been absent without leave (“AWOL”). The Group Home has never had to restrain her or call the police as a result of any of her behaviours. She has never been hospitalized for a psychiatric reason. On one occasion, on October […], 2009, following a particularly traumatic meeting with her mother in which the Child was told she could not return to live with her mother, she stated she wished she were dead. The Child was put on 24-hour suicide watch as a result, but later calmed down. She did not formulate a plan, nor has she ever made a suicide attempt or plan.

13K.S. of the CCAS testified the agency is concerned that the Child is a danger to herself due to the disassociative episodes. For example, she once experienced an episode while riding a horse, causing the ranch owners to request that she not return. The Child has walked into walls, and on one occasion, group home staff prevented her from falling over a low railing to a floor below during an episode. The [Home] monitors the Child constantly.

14The Child’s consulting psychiatrist at the [Home], Dr. W., suggested that they should look for options as the Child was not improving. As a result, the CCAS arranged for her to see Dr. H., a psychologist. In Dr. H.’s July […], 2009 report, she concluded that the Child “may be significantly depressed”. She recommended that the Child have her medications reviewed and be admitted to a facility such as Youthdale’s Transitional Psychiatric Unit or an adolescent hospital unit. Dr. H. recommended an in-patient setting in order to take the Child off her medication and establish baseline functioning. Staff members at the [Home] are not qualified to deal with the Child’s behaviours if she is off her medication.

15Ms. K.S. testified that at a meeting on October […], 2009, Dr. H. told them that the Child should first have a psychiatric assessment before a neuropsychological assessment. She recommended that this be done at Youthdale’s Secure Treatment Program, as the first option.

16On November […], 2009, CCAS applied for emergency admission of the Child to the Youthdale Secure Treatment Program. She was admitted on the same day.

ANALYSIS

17Following presentation of Youthdale’s case, Mr. Phillip, counsel for the Child, brought a Motion for Non-Suit. He argued that taking all of Youthdale’s evidence at its strongest and without testing credibility or assigning any lesser weight to any information, the Program had not made out a prima facie case that the Child met the s.124 criteria at the time of her admission.

18In particular, he pointed to 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 serious bodily harm to himself, herself or another person.” There is no evidence, he argued, upon which a finding could be made that this criterion was satisfied either with respect to the seizures or the alleged suicide wish.

19First, Dr. K.C., Psychiatrist at Youthdale, testified that a Child would not be admitted to the Program as a result of seizures which have a neurological cause. In the present case, Mr. Phillip argued, the Child has not had a neuropsychological assessment and neurological causes have not been ruled out.

20The Admission Summary notes that the Child becomes “loud and argumentative”, which counsel argues is a long way from being a danger to others. The only remaining element is an expressed “suicide wish” on one occasion in early October 2009. Counsel argued that the wish, expressed during an emotional meeting with her mother when the Child was told she could not move home, could not be considered “a substantial threat” to her safety. She has never attempted suicide, been hospitalized, or hurt anyone.

21Further, counsel for the Child argued that there was no evidence upon which the Board could find criterion (e) was met; “no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances.” Dr. K.C.’s interpretation of Form 14 was that the admitting physician did not canvass any less intrusive means that may be appropriate to treat the Child. The uncontested evidence was that CCAS never contacted the Hospital in Guelph, which has an adolescent unit, made no inquiries of the adolescent hospital unit at The Hospital For Sick Children, and never asked the Youthdale Transitional Psychiatric Unit or the Hospital For Sick Children whether an exception could be made to their catchment-area policy to admit the Child. Only one place was called, McMaster, which had no bed. There was no evidence, he argued, that a secure setting was required for the appropriate treatment of this Child’s mental disorder. Rather, the evidence was that a non-secure in-patient setting would be acceptable to Dr. H.. Counsel noted that a secure treatment facility is a last resort, as it takes away a child’s liberty.

22Counsel for Youthdale argued that sufficient evidence had been presented upon which a finding could reasonably made that all the criteria were met. With respect to criterion (b) she argued that the Child’s episodes put her at personal risk of harm. She argued that even disregarding the episodes, C.J. expressed suicidal ideation and was required to be put on a 24-hour suicide watch.

23With respect to criterion (e), counsel argued that the Child’s treatment thus far has been ineffective and the people following her progress believe she has deteriorated. The admission to Youthdale was to address this problem. While the Psychologist recommended she be admitted to the Transitional Psychiatric Unit at Youthdale or an adolescent hospital unit, counsel argued there were practical reasons to reject those possibilities. Counsel argued the Board must have regard to alternative treatments that are practically possible. Where a Child resides outside the catchment area for a facility, as is the case for this Child with respect to Youthdale’s Transitional Psychiatric Unit, it should not be considered as “appropriate in the circumstances”.

Decision

24Section 124 is under Part VI, Extraordinary Measures, of the Act. There must be extraordinary circumstances before a child is placed, on an emergency basis, in a secure treatment unit. As such, the right to review the placement before the Board is a significant safeguard, which was put in place to protect the Child’s liberty rights. There is a duty on the admitting program, Youthdale, to present evidence, on the balance of probabilities, to support its position that a child met the criteria as set out in section 124(2) of the Act at the time of admission.

25On a motion for non-suit, the Board must answer the question: Is there some evidence, which if believed to be true, could lead to a finding that each of the criteria had been met. The Board found that there was no evidentiary basis to make a finding that criteria (b) or (e) were met. The cause of the Child’s seizure-like episodes has not been found and neurological factors have not been ruled out. In any event, taking the evidence at its highest, if the episodes are caused by a mental disorder, the Child is closely monitored at the [Home] in case a seizure should take place and put her in physical danger. Thus, while there is evidence of a risk of harm, there is no evidence of a substantial threat of harm because of the precautions taken to monitor the Child. With respect to the expressed “suicide wish”, the Board finds that the Child’s words, taken in context, could not amount to a “substantial threat of serious bodily harm” as required in the Act. The Child has said “I wish I was dead”, but never identified a plan or made any attempt at suicide. Ms. K.S. testified the Child was put on suicide watch on one occasion “out of an abundance of caution”, following an emotional meeting when the Child learned she could not return to live with her mother.

26It is clear in the legislation that a child cannot be admitted to a Secure Treatment Program if there are alternative, less intrusive methods of treatment that would be appropriate. The Board heard no evidence as to why secure treatment would be required in this Child’s case. She has never gone AWOL, she has been compliant in taking medication prescribed to her, she attends her therapy and she is not a danger to staff or other residents in the Group Home. The evidence was not that the Child was deteriorating, but that the group home was “maintaining” her and that her caregivers wanted some answers including a medication review. In our view, there was no evidence that an “emergency” measure was at all warranted. Rather, it appears CCAS was looking for a way to have her problems diagnosed and receive appropriate treatment, after hitting an impasse in the Child’s care. Even if it is believed that Dr. H. shifted her preference to the Secure treatment unit at Youthdale at a meeting, the option of a hospital unit identified by her in her report remained an appropriate means of treatment and assessment for the Child. No evidence to the contrary was provided. We find that Youthdale did not lead evidence that could lead to finding that criterion (e) was met.

DECISION

27Pursuant to section 124 (13) of the CFSA, the Board, having satisfied itself that the criteria have not been met, released the Child, C.J., from the Emergency Secure Treatment Program at Youthdale on October 10, 2009.

__________________

Heather Gibbs

Presiding Member

___________________

Ruth Ann Schedlich

Panel Member

___________________

Sheena Scott

Panel Member