A.A. v. Robert Smart Centre, 2011 CFSRB 3

CHILD AND FAMILY SERVICES REVIEW BOARD

A.A.

v.

Robert Smart Centre

REASONS FOR DECISION ON MERITS

Date: February 28, 2011

Citation: 2011 CFSRB 3

Indexed as: A.A. v. Robert Smart Centre (CFSA s.124)

INTRODUCTION

1This is an application to the Child and Family Services Review Board (the “Board”) by A.A., (the “Child”) born July […], 1997 for a review of her emergency admission on February […], 2011 to the Secure Treatment Program at the Robert Smart Centre (“Robert Smart”), pursuant to section 124(9) of the Child and Family Services Act (the “Act”). The hearing was held on February 14, 2011.

2The Board had to decide on a balance of probabilities, whether each of the criteria set out in subsection 124(2) of the Act were met at the time of admission, having regard to the best interests of the Child. The Respondent’s position was that all five criteria were met and that the application should therefore be denied. The Child’s position was that some of the criteria were not met and consequently, she should be released.

3For the reasons that follow, the Board found that the Child did not meet the criteria listed in s.124 (2) at the time of her admission and therefore ordered that she be released from Robert Smart.

BACKGROUND

4The Child is 13 years old and came into the care of the [Society] most recently on January […], 2011. The Society had had contact with her parents in September of 2010 regarding their difficulties managing her at home. Her parents had located a treatment facility in [City A] and the Child was admitted to the [Program A] on January […], 2011. The Child was discharged from that program two weeks later. Upon her return to the [City B] area, she was apprehended by the Society and placed in [Group Home], [ ] in [City B] on January […], 2011 for a period of one month.

5While at [the Group Home], the Child threatened to hang herself on February […], 2011 and was taken on the same day to the [Hospital A]. She was discharged from [Hospital A] on February […], 2011 and admitted to the emergency secure treatment program at Robert Smart on the same day.

ANALYSIS

6The Board had to decide if all of the mandated criteria were met at the time of the admission.

7Section 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)

8The 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.

9The Board was not satisfied that at the time of the 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 upon which the Board could conclude that the Child had a substantial disorder of emotional processes, thought or cognition which grossly impaired her capacity to make reasoned judgments at the relevant time.

10Section 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. The right to review the placement before the Board is a significant safeguard, which is in place to protect the child’s right to liberty. The admitting program, Robert Smart, has a duty to present sufficient evidence to support a finding on the balance of probabilities that on admission, a child has met the criteria set out in section 124(2) of the Act.

11The Executive Director at Robert Smart, submitted a progress note dated January […], 2011 of a telephone conversation he had with Dr. R., a psychiatrist from [Hospital A]. Dr. R. had contacted Robert Smart to discuss the Child’s situation with the Executive Director. The Executive Director’s note included statements made by Dr. R. regarding problems the Child’s parents had with her, the disruptive behavior the Child exhibited while in the [Program A] in [City A] and reference to “some type of personality disorder”.

12The Executive Director also submitted a letter dated January […], 2011 from R.P., a clinician from the [Program A] describing in detail the Child’s behavior during her stay and the program’s reasons for her discharge.

13The Executive Director testified that the Child had received multiple diagnoses in the past and he believed that she had a mental disorder. He stated that she had been placed at [Program A], a treatment facility in [City A] in January 2011, but was discharged after a brief period because of her disruptive behavior. Following her discharge, she was taken into the care of the Society through a temporary care agreement for four months. She was placed in [Group Home], [ ] in [City B] on January […], 2011.

14The Executive Director testified that he had received a prior request for admission to Robert Smart and stated that this request was not approved because the five criteria for admission to Emergency Secure Treatment were not met at that time. However, he testified that he had met with the Society on January […], 2011 and informed them that he would admit the Child to the secure treatment program if an incident occurred that satisfied the criteria for admission.

15The Executive Director stated that Robert Smart’s intake worker informed him that the Child’s group home had phoned Robert Smart and stated that on February […], 2011, the Child threatened to kill herself and tried to push a group home staff down a flight of stairs. He testified that the Child was taken to [Hospital A] on that date and was discharged because she was not acutely suicidal. He gave his consent to have staff from the group home bring the Child to the secure program from [Hospital A] for admission.

16The Executive Director stated that the information from Dr. R. and from the [City A] program along with the incident on February […], 2011 established that the Child had a mental disorder. During cross examination, he stated that no proper assessment of the Child by a psychiatrist had been done as part of the admission process, but that there were reasonable grounds that the Child “suffers from something”.

17The Executive Director further stated that the process for the Child’s admission involved a meeting between himself, Robert Smart’s intake worker (who had received an oral report of the incident that had occurred on February […]) and a clinician. The clinician has a master’s level degree in psychology. Robert Smart did not present any psychiatric or psychological assessment reports that provided detailed information regarding whether or not the Child did or did not have a mental disorder, nor did the Executive Director state that the decision to admit the Child to the secure treatment program was based on this kind of assessment information.

18A Child Protection Worker from the Society (“Worker”) testified about the Society’s recent involvement with the Child and her family. He also testified about the Child’s behavior based on information he had received from R.P. at [Program A] and information from S.D., a Youth Reintegration/Outreach Worker with the [Program B]. These sources of information both emphasized the need for intensive and structured treatment for the Child in a setting such as Robert Smart. Robert Smart has both a long-term treatment program and a secure treatment program.

19The Worker testified that the Society had received information from a number of doctors that indicated that the Child needed treatment and that this case had become a high profile case as a result of newspaper articles resulting from the Child’s mother’s complaints about the lack of services in the Child’s home community. The Worker did not present any psychiatric or psychological assessment reports that provided detailed information regarding whether or not the Child had a mental disorder.

20The Worker stated that the Child was admitted to [Group Home] on January 26, 2011 for a one-month period to stabilize and assess her needs. He was notified by the group home of an incident on February […], 2011 during which the Child threatened to hang herself and pushed a staff member. He was also informed that she had punched a hole in a closet wall. As a result, the Child was transported to [Hospital A] where she was assessed and discharged. The Worker was present at [Hospital A] during the assessment of the Child. The Society made an application to the secure treatment program at Robert Smart on the same day because of the Child’s threat to kill herself. The Worker stated that there was a plan in place for the Child to be admitted to the secure treatment program at Robert Smart at the time that she went to the hospital. He also stated that a long-term treatment bed at Robert Smart was not available until the end of February.

21Two Child and Youth Workers at [the Group Home] testified about the incident on February […], 2011. Both were on shift on that day. The first youth worker stated that the Child had been sitting on a table reading a book and would not comply with his direction to sit at the table, not on it. The Child was directed to go to her room after she started to swear at him. He stated that the Child proceeded to slam her door and then went to a landing where the second youth worker was standing and tried to push him aside and he nearly fell. As a result, the youth workers escorted the Child to her room. The first youth worker stated that once in her room, the Child was scratching herself on her arm and she stated that she was going to hang herself in her closet with a bed sheet. The first youth worker testified that he got the coordinator who was on shift to call the director and was advised to call 911 and the police. He stated that this is the protocol used in the home when youth make suicidal statements, especially in instances where staff were not very familiar with a resident. He did not attend at the hospital with the Child.

22The second youth worker testified that he was at the top of a set of stairs when the Child came out of her room and tried to push him out of the way. He blocked her and went down one step in order to balance himself. He stated that he did not feel threatened by her.

23The second youth worker confirmed that he and the first youth worker escorted the Child to her room using an approved physical hold. Once the Child was in her room, he sat with her on her bed. He stated that the Child was crying and screaming and he attempted to calm her down and held her hand so that she couldn’t scratch herself. He stated that he felt that the Child was testing him, but he made it clear to her that he was not going to let her hurt herself.

24The second youth worker further testified that the Child grabbed a bed sheet from another bed in the room, knotted it and said she was going to hang herself in the closet. He described this as “testing behavior” to see his reaction and stated that he remained in the room the whole time and did not take this threat as a serious threat. Once the Child knew that the police were coming, he stated that she “snapped out of it”, retrieved the sheet from the closet and straightened herself out.

25The second youth worker advised that the Child told him what was bothering her, namely, that she had to stay in her room until 7:30 and would miss a trip to the library, that she couldn’t sit where she wanted while reading and that she felt that she was being watched so much because of her relationship with a male resident in the home whom she had befriended.

26The youth workers did not provide testimony about any other behaviors by the Child that were of significant concern except for one incident where she and another resident left the group home without permission to go to the local library. Both the Child and the other resident were located and returned to the group home within 30 to 45 minutes.

27The Child testified and explained her behavior at [Program A] as being intentionally out of control. She stated that she had been physically restrained for not following direction shortly after her admission and did not wish to remain in the program as a result. She stated that she was determined to do what she had to do in order to be discharged.

28The Child stated that she is not a cutter and had an itch that she was scratching while in her room. She further stated that she was having an “anxiety attack” while in her room and that she had no intention of killing herself on February […], 2011. She stated that she had calmed down before she left for [Hospital A] and was calm while she was there. She stated that she had a non-verbal learning disorder and mood disorder for which she was taking medication. She acknowledged that she needed help but didn’t need to be locked up. The Child clarified that she had met with Dr. R. on two occasions and refused to see him after that but that her parents met with him.

29The burden of proof that the admission criteria were met at the time the Child was admitted rests with Robert Smart. All five of the criteria must be met in order for the Board to confirm the placement. The Board has reviewed the evidence presented by Robert Smart in order to determine whether or not criterion (a) was met.

30The Board heard from the Executive Director of Robert Smart and the Worker that they had been provided with information to support the need for the Child to have secure treatment. However, the Board heard no direct evidence from Robert Smart upon which it could conclude that criterion (a) had been met at the time of the Child’s admission to the secure treatment program. The witnesses did not provide sufficient information that fit within the context of criterion (a).

The testimony given by the Executive Director assumed that the Child had a mental disorder based on a telephone conversation with Dr. R. and a letter from a clinician at the [Program A]. This testimony was insufficient to establish that the Child had a mental disorder as defined in the Act at the time of her admission.

31Evidence of behaviours can, in certain cases, be sufficient for the Board to conclude that criterion (a) was met. In this case, the Board heard evidence from the youth workers and the child that was inconclusive about whether the child had a mental disorder. Without some analysis, through a clinician, of the clinical significance of the incident described, the Board could not, in this case, find that criterion (a) was met.

32Robert Smart failed to establish through the testimony given, that the Child had a substantial disorder of emotional processes, thought or cognition which grossly impaired her capacity to make reasoned judgments. Therefore, the Board must conclude that criterion (a) was not met at the time of admission.

33On the basis of the evidence presented, the Board finds that the Child did not have a mental disorder, as defined in the Act, at the time of her admission to Robert Smart. The Board was not satisfied that criterion (a) was met. When criterion (a) is not met, it is not necessary for the Board to consider the other criteria. The Board must release the child when any one of the five criterion are not met.

CONCLUSION

34The Board ordered the release of the Child on February 14, 2011 because the criterion in subsections 124(2) (a) was not met at the time of admission.

Gail Gonda Presiding Member

Wendell White Panel Member

Mary Wong Panel Member