CHILD AND FAMILY SERVICES REVIEW BOARD
M.N.
v.
Youthdale Treatment Centres
REASONS FOR DECISION
Indexed as: M.N. v. Youthdale Treatment Centres (CFSA s.124)
1M.N. is a fifteen year old girl who applied to the Child and Family Services Review Board (the “Board”) for a review of her emergency admission on March […], 2011 to the Secure Treatment Program at the Youthdale Treatment Centre (“Youthdale”). She applied under section 124(9) of the Child and Family Services Act. The hearing was held on April 4, 2011.
2The Board must decide on a balance of probabilities whether each of the criteria set out in subsection 124(2) of the Child and Family Services Act (the “Act”) were met at the time of admission, having regard to the best interests of M.N. (the “Child”). Youthdale’s position was that all five criteria were met and that the application should be denied. The Child’s position is that criteria (a), (b), and (e) were not met and that she should be released.
3For the reasons that follow, the Board found that the Child did not meet criterion (a) listed in s.124 (2) at the time of admission and ordered that she be released from Youthdale. Since the Board found that the Child did not have a mental disorder as defined by the Act, criteria (b), (d) and (e) do not apply as they require as part of their operation that the Child have a mental disorder. These criteria were not applicable and thus, were not met. The Board did not need to address criterion (c).
PROCEDURAL ISSUES
4Counsel for the Child objected to the admission of the Form 14 (Emergency Admission to Secure Treatment Program) and the Admission Summary completed by the admitting psychiatrist, Dr. C.. She submitted that to admit the documents through the testimony of a Crisis Team Worker and not through the admitting psychiatrist or even through a staff psychiatrist would be prejudicial to her client since she would not have the ability to cross-examine on the evidence. She cited the November 2, 2010 decision of the Board (ES10-0027) which stated that the liberty interest of the Child was directly impacted by these documents since they contain the basis of the Child’s deprivation of liberty and the commitment to a locked facility for up to thirty days. The Board determined in that decision that it would be procedurally unfair to admit this evidence without permitting the testing of that evidence through cross-examination
5Counsel for Youthdale submitted that the previous decision of the Board is not binding on this Board and cited s.15 of the Statutory Powers and Procedures Act (the “SPPA”) and Starson vs Swayze, 2003 (ISCR722) that evidence of hearsay is admissible. She stated that it is up to the Board’s discretion whether to admit this evidence and to determine the weight and that the Crisis Team Worker and the Children’s Aid Supervisor were available to testify.
6The Board ruled that the Form 14 and the Admission Summary not be admitted into evidence through the Crisis Team Worker. Although the Board does have the discretion to admit hearsay evidence under the SPPA, it is still bound by the principles of natural justice and fairness and by the Charter. Since the Child’s liberty is at stake, it would be procedurally unfair for the Board to admit evidence which is the basis for this loss of liberty without giving her the opportunity to test this evidence through cross-examination. The Crisis Team Worker and Children’s Aid Worker would not be able to testify to the opinions and diagnosis given by a trained psychiatrist. The Board is not bound by its previous decisions but agrees with the decision in ES10-0027 and makes the same ruling in this instance.
7The Board ruled that the Form 1 issued at [Hosptial] by the attending psychiatrist not be admitted into evidence. The Form 1 was issued just prior to the Child’s admission to Youthdale. Counsel for the Child objected to the admission of this evidence since the psychiatrist would not be available to testify. Counsel for Youthdale attempted to admit this evidence following the testimony of the Family Services Supervisor from [CAS] and during questioning by a Board member. The Board did not admit this evidence since the doctor who completed the form was not available to testify and the Family Services Supervisor would not be able to testify as to the contents of the Form 1. Like the Admission Summary and the Form 14, the Form 1 contains clinical opinion that goes to the basis of the admission. Based on the reasoning cited above with reference to the Form 14 and the Admission Summary, it would be procedurally unfair to the child to be denied the opportunity to cross-examine the source of the opinion in the Form 1.
BACKGROUND
8The Child comes from a family of twelve children varying in age from five years to twenty-three years of age. The [CAS 2] became involved with the family after disclosures of sexual abuse by some of the younger children who were apprehended in May of 2009. The children named two male siblings as perpetrators of the abuse. Since the mother is [nationality], the file was transferred to the [CAS] in July of 2009.
9In June or July of 2010, after the apprehension of the children, there was a family squabble during which the Child allegedly attacked one of her siblings. The older sister blamed the Child for the apprehension, and the Child ran to the basement and attempted to hang herself. The mother called police, who took her to the [Hospital B] where she was admitted for one and a half weeks.
10In December of 2010, the Child disclosed to her mother that she was sexually abused by her brother. She ran away following an altercation with her younger brother, M., whom she feels is mistreating the younger children. Her mother took her to the [Hospital B], where she was assessed and released.
11In March of 2011, following a classroom discussion of depression and suicide, the Child told her guidance counsellor of having suicidal thoughts. The Child’s mother called [Organization] staff at [Town] who advised her to speak openly to the Child about suicide. The Child ran away later in the evening and spent the night in the emergency waiting room at the [Hospital B].
12The Child had a physical altercation with her brother, M., on March […], 2011. On March […], 2011, the Child went for a trauma assessment at the [Organization]. The psychometric test concluded that the Child had had suicidal thoughts for the past six months. She also disclosed that she has had suicidal thoughts to the [Organization] counsellor. The counsellor informed [CAS] that the child should not return home and that she needed an assessment immediately. The Child was taken to the crisis unit at [Hospital] where she was admitted, put on a Form 1 and discharged the following day to [CAS 2]. The Child was apprehended by [CAS 2], taken from [Hospital] and admitted to Youthdale on March […], 2011.
13[CAS 2’s] application to the Court following the apprehension was unsuccessful and the Child’s mother holds the primary care of the Child.
ANALYSIS
14The Board had to decide if all of the mandated criteria were met at the time of the admission.
Section 124(13) of the Act 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 clause 124(2) (a) to (e)
The relevant criteria are set out in the following legislative provisions:
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.
Criterion (a) the child has a mental disorder.
15The Board was not satisfied that at the time of admission the Child had a mental disorder within the meaning of the Act. A mental disorder is defined in the Act as a substantial disorder of emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgments. There was insufficient evidence before the Board that at the time of admission, the Child had a substantial emotional processes disorder which grossly impaired her capacity to make reasoned judgments.
16The Board considered the evidence of W.M., Family Services Supervisor, who has supervised the Child’s worker for a week and has gained her knowledge by reading the file and speaking to the Child’s worker. The Supervisor’s evidence is that the Child had suicidal ideations following incidents of conflict with her fourteen year old brother. After a physical fight in June or July of last year, the Child went to the basement, put a cord around her neck and stood on a stool. Her mother found her and took her to the [Hospital B] where she was admitted.
17The Child testified that she had a fight with her brother, M., because his behaviour toward the younger siblings was getting worse and worse. Her older sister was upset because the Child and another sister had gone to the police regarding the sexual abuse and was blaming her for putting her brothers in jail. The older sister also felt that the Child wanted to put M. in jail. The Child testified that she felt that something had to be done to help her siblings and she was not trying to hang herself. She just wanted to make it look like it and made sure that the rope wouldn’t catch at the ceiling. She was admitted to the [Hospital B] for a week and a half and discharged without a diagnosis, on the condition that she go for therapy. The Child said that she saw a counselor once a week for five or six months.
18The Supervisor testified that in December of 2010, the Child disclosed to her mother that she was sexually abused by her brother and in the same month ran away and spent the night in the emergency waiting room at the [Hospital B]. On March […], 2011, the Child had another physical altercation with her brother. On March […], 2011, she went to [CAS 2] seeking help, but could not contact her worker. On March […], 2011, the Child attended the [ ] [Organization] where the counselor administered a “safety check”. The Child related to the counselor that she was suicidal. The counselor informed [CAS 2] that it was imperative that the Child not return home, that she was in crisis and needed an assessment immediately. The Child was taken to [Hospital] and placed on a Form 1 under the Mental Health Act. The Child was discharged from [Hospital] the next day. The Child was apprehended by [CAS 2], since the mother had expressed that she was unable to care for the Child and the Child did not want to go to a group home. The Society Worker transported the Child and admitted her to Youthdale for assessment.
19The Child testified that when she ran away, she chose to go to a safe place which was the emergency waiting room at the [Hospital B]. It was winter and she was warm and safe at the hospital. She slept on the bench until she was awakened by the security guard. In the altercation with her brother, he was fighting with her little sister and she tried to correct him. Her mother was not doing anything about the situation. She argued with her brother and was getting angry. She threw a glass at the stairwell and he went to the kitchen and came back with a knife. The mother intervened and took the knife away. Her brother went to stay with her sister since the authorities did not want them to stay together. The next day, she went to see her family worker because she was confused. After the fight, the adult authorities involved said that one of them will end up in foster care. The Child said that she never expressed thoughts of hurting her brother. She just wants him to get help so that he does not end up like her other brothers. She wants to go home so that she can protect her siblings.
20The Child related the events that took place after she was admitted to [Hospital]. She spoke to a Youth Worker and had to wait until the next day because a psychiatrist was not available in the crisis unit. The next morning, a lady standing outside her door said that she was taking her to a group home. The Child said that she did not want to go to a group home. The psychiatrist saw her and told her that she can go and that she was released. However, a Family Service Worker told them that they can not release her to her home, that she needed another assessment and that they did not know her history. The Child was with her worker, who told her that she was on a Form 1.
21The Board did not find sufficient evidence to demonstrate that the Child had a substantial emotional (or other) processes disorder which grossly impaired her capacity to make reasoned judgments. The Board heard evidence from W.M., who was a Supervisor with [CAS 2], however, she supervised the file for only a week and had no direct knowledge of the file and had never met the family.
22The Board also heard from a Crisis Team Worker from Youthdale who did not take part in the intake process for the Child. Youthdale did not present any direct evidence that criterion (a) had been met. The burden of proof that the admission criteria were met at the time of admission rests with Youthdale. There was no medical evidence or diagnosis of a mental disorder before the Board from any of the medical institutions involved with the Child. There was no evidence of proximate behaviour that could lead to the conclusion that the child had a mental disorder. The Board accepted the direct evidence of the Child that she did not intend to hang herself, but that she was trying to get help for her siblings. Furthermore, the incident took place in June or July of 2010, well before the emergency admission of March […], 2011.
23The Board heard evidence that the Child had some history of apparent suicidal ideation. There was no clinical evidence to put the Child’s history in context relative to the current incident in which she fought with her brother. There was simply not enough evidence to lead to the conclusion that the Child had a substantial disorder of emotional processes thought or cognition.
24In terms of the Child’s judgment, the Board heard evidence that the Child had recently made judgments in the interests of her safety. She sought out help through two agencies and was amenable to getting help. There was no evidence, proximate to the admission of impaired judgment (let alone grossly impaired judgment) linked to a disorder.
25The Board found that criterion (a) was not met.
26The Board is required to release the child if any one of the five criteria is not met. As noted earlier, where other criteria flow from the existence of a mental disorder, they too are not met. Given that the child did not have a mental disorder at the time of admission, the Board did not need to address the remaining criteria in its reasons.
CONCLUSION
27The Board ordered the release of the Child on April 4, 2011 because the criterion in subsection 124(2) (a) was not met at the time of admission.
Ruth Ann Schedlich Presiding Member
Alina Lazor Panel Member
Mary Wong Panel Member
Dated at Toronto, Ontario on this 15th day of April, 2011.