CHILD AND FAMILY SERVICES REVIEW BOARD
J.W.
v.
Youthdale Treatment Centres
REASONS FOR DECISION ON MERITS
Indexed as: J.W. v. Youthdale Treatment Centres (CFSA s.124)
INTRODUCTION
1This is an application by J.W. (the “Child”), born January […], 1997 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 (the “Act” or “CFSA”). The application was dated January […], 2011 and related to the Child’s admission to Youthdale on January […], 2011.
2The Board must decide, on a balance of probabilities, whether each of the criteria set out in subsection 124(2) of the Act was met at the time of admission. The Respondent’s position was that all five criteria had been met and that the application should therefore be denied. The Child’s position was that criteria (a), (b), (d) and (e) had not been met and that she should be released.
3For the reasons that follow, the Board found that the Child does not meet all of the five criteria listed in s. 124(2) at the time of her admission and therefore ordered that she be released from Youthdale.
PRELIMINARY ISSUE
4Prior to the commencement of the hearing, the Child’s lawyer advised that she would be objecting to the admission of the Form 14 and the Youthdale Admission Summary into evidence, unless the admitting psychiatrist was available to give evidence and be subject to cross examination.
5Counsel for Youthdale advised that the admitting psychiatrist was not scheduled to testify at the hearing.
6The onus in establishing that the five criteria are met rests with Youthdale. The onus is on the balance of probabilities. There is nothing in the CFSA that permits the Board to make a determination on a summary evidentiary basis. This means that it is Youthdale’s responsibility to ensure that important witnesses who have evidence about the criteria are available to testify and be cross-examined. This is particularly so regarding clinical witnesses. Clinical witnesses make the assessment about the existence of the criteria as prerequisite to admission and can assist the Board in making a determination in the best interests of the child.
7The evidentiary issue relates to documents generated by Youthdale’s admitting psychiatrist. The Board provided Youthdale with the opportunity to call the admitting psychiatrist either in person or by teleconference and was willing to accommodate the schedule of the psychiatrist so that he could testify. Youthdale still did not call the psychiatrist to testify and did not provide the Board with reasons why. They wanted to admit the documents through the Crisis Worker. The Board ruled that it would not admit the Form 14 or the Admission Summary of the psychiatrist unless the documents were tendered into evidence through the psychiatrist.
8The Child’s Counsel submitted that to allow the evidence in would violate the Child’s right to liberty under the principles enshrined in the Charter because she would have been denied the ability to test the evidence through cross examination and thus, due process, contrary to the principles of fundamental justice. Counsel for the Child noted that though hearsay evidence is admissible to the Board, natural justice and Charter values must be incorporated into the process and are key to the proceedings.
9The Child’s Counsel submitted that the Admission Summary and Form 14 provide an opinion of a medical professional and are not mere business records. Without the psychiatrist present for cross-examination, there would not be a meaningful review, nor would there be an opportunity to challenge the admission.
10Counsel for Youthdale submitted that because the best interests of the Child are paramount under the CFSA, the Board should receive the documents without the necessity of calling the psychiatrist since the Crisis Worker was available to speak to the evidence. She stated that under the Statutory Powers Procedure Act (“SPPA”), hearsay is admissible and the Board must admit the evidence and choose the weight to be given. If the rules of the Court are used, the evidence is not hearsay since it is based on findings and facts and can be admitted through the Crisis Worker and the parent. If in a court of law, the evidence would be heard if considered necessary and reliable.
11Youthdale’s Counsel stated that the Child’s objection is only a procedural objection and is abusive to the process and that there is no requirement for the psychiatrist to be present.
12With respect to the documents at issue, the Form 14 and the Admission Summary, the Board finds that the documents are not business records. Section 35 (1) of the Evidence Act (Ontario) defines a business record as any writing or record made of any act, transaction, occurrence or event if made in the usual and ordinary course of any business, provided it was usual to make such a record. A psychiatrist’s opinions about why a child should be held in a locked facility and the factual basis for those opinions are not a record of an act, occurrence or event.
13Youthdale submitted that the Board should admit the evidence because it is governed by the principle of the best interests of the Child and it should have all relevant materials. The best interest of the Child as a paramount consideration does not negate the importance of due process. The Child can only be admitted to secure treatment as an extraordinary measure when strict criteria are met. It is the admitting psychiatrist that applies the criteria for admission under section 124 of the Act and as the administrator’s delegate, admits the child into the locked setting. The Act specifically sets up a review mechanism which involves extensive procedural and participatory rights for the child. Under the review process, the child’s challenge to the existence of the grounds for admission is on a de novo (fresh) basis. Ensuring that the child’s due process rights are met helps ensure that decision-making will be in the best interest of the child.
14The Board is satisfied that a child should be accorded a high level of procedural fairness and due process where the physical liberty of the child is at stake. The Charter principles of fundamental justice which include procedural fairness and the duty of procedural fairness standing alone, both dictate that the Child should be afforded the option of testing the evidence of the person responsible for depriving her of her liberty.
15The Board ruled that the Form 14 and the Admission Summary of the admitting psychiatrist would not be entered into evidence unless tendered through the psychiatrist, giving the Child the opportunity to test the evidence through cross-examination.
Non-Suit Motion
16After hearing the evidence of Youthdale, Counsel for the Child made a Motion of Non-Suit on the basis that criterion (a), (b), and (e) were not met.
17On a non-suit motion the question for the Board is:
Is there some evidence, which, if believed, could lead to a finding that each of the five criteria had been met?
18The Board denied the Child’s motion of non suit, finding that Youthdale presented some evidence which if believed could lead to a finding that criteria (a), (b), and (c) had been met. The Board proceeded to hear the remainder of the case.
BACKGROUND
19[The Child] is a 14-year-old girl who lives with her mother, stepfather, biological sister and stepbrother. [The Child’s] parents have been separated since 1999 and her mother has subsequently re-married. Her father is presently engaged to be married. Her parents have joint custody, with her mother having final say in decisions regarding [the Child].
20[The Child] is in grade eight and attends [School A]. Her grades are average, in the mid 70s, with the exception of Science, which she is failing.
21[The Child] was first offered a bed at Youthdale towards the end of October. She was referred by her mother. [The Child’s] mother stated that the Child began exhibiting disturbing behaviour in May 2010. The behaviour included physical abuse to her mother and stepfather, saying she wanted to die, self-harming by cutting her right arm between the wrist and elbow, having emotional explosions, verbally abusing all members of the family, crying, trembling and at times withdrawing into her room, shutting herself off from her family. Dr. W., Youthdale psychiatrist, was consulted at that time and noted that she was appropriate for admission and was offered a bed towards the end of October.
22[The Child’s] mother was trying to have her admitted to Youthdale while her father was not. Later that month her father did change his mind, but the risk was gone and the family was meeting with an [Agency] social worker at that time. It was decided that if need be, they would contact Youthdale in the future to again work toward having [the Child] admitted.
23[The Child’s] behaviour changed between October, 2010 and January, 2011. She was no longer cutting herself, but had begun secretly purging instead. She was still attending school, but her grades were falling.
24On January […], 2011, [the Child] displayed rude, very unpleasant behaviour, causing a disturbance at a family birthday dinner. On January […], 2011 [the Child] had again cut herself, and her arm was covered in blood. She stated that she was not happy, that she needed help, she felt all alone and that her family was a mess and it was all her fault.
25[The Child’s] mother called [a Crisis Line] and was told if the cuts seem bad, take her to emergency. She was taken to [Hospital A]. The attending physician on duty at [Hospital A] admitted her. She was examined by the on-call psychiatrist who ultimately released her into her mother’s care with a recommendation to seek help from Child and Family Services at [Hospital A].
26[The Child’s] mother reported that the Child has been fluctuating between sadness and anger since that time.
27It was decided that [the Child] needed help and Youthdale was again contacted to arrange for admission.
28[The Child] stated that she did not want to go to Youthdale. On January […], 2011 the police were required to bring her to Youthdale.
ANALYSIS
29The legal tests in this case are reflected in the criteria as 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.
(a) the child has a mental disorder
30The Board heard the evidence of the Crisis Worker and the Child’s mother, K.C. and found that there was not sufficient evidence to determine that the Child had a mental illness within the meaning of the Act at the time of admission. 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.
31The bulk of testimony outlined past behaviours that took place in 2010. The Crisis Worker testified that in October 2010, [the Child] was approved as appropriate for admission to Youthdale. At that time, [the Child] was superficially cutting herself on her arms. She was aggressive and displayed mood swings. She was verbally and physically abusive to members of her family. She was not admitted at that time because her father did not agree to her admission.
32In January 2011, [the Child] was admitted to Youthdale on referral from her mother. Both parents consented to the admission. [The Child’s] mother testified that her daughter swears and was exhibiting inappropriate behaviour. She further noted that [the Child] had stopped cutting herself from October up until early January 2011 and began purging instead.
33The mother described an incident on January […], 2011 when the Child cut the words “fuck up” on her arm. The Child said she was not happy and that she needed help. She was crying and trembling. The mother called the [Crisis Line] who told the mother to ask the Child if she wanted to die and if she had a plan. The Child answered “yes” that she wanted to die and “no” to having a plan. On the advice of the [Crisis Line], [the Child] was taken to [Hospital A] to receive treatment. [The Child] was placed on a Form 1 for a short while and later sent home after seeing the psychiatrist. She was not hospitalized, but a referral to Child and Family Services of [Hospital A] was made.
34The Board finds that the Child’s behaviour was not evidence of a substantial disorder that grossly impaired her judgment. Her thought processes were lucid, as she had asked for help and assistance. [The Child] exhibited risky behaviour, but her judgment could not be considered grossly impaired.
35On admission to Youthdale, January […], 2011, there was no clinical evidence of a mental disorder, as the admitting psychiatrist was unavailable to testify. While at [Hospital A], the Child could have been admitted or transferred to a psychiatric unit, but the psychiatrist on duty did not think it was warranted and released her. The Child may have depression, but depression alone does not mean that judgment is grossly impaired. 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.
36The Board finds that criterion (a) was not met.
(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;
37Since the Board did not find that the Child had a mental disorder within the meaning of the Act, it is not necessary to give reasons for criteria (b). However the Board would like to state that the Child did not cause serious bodily harm to herself or her family. All her cutting was superficial by her mother’s admission and there was never a need for medical attention or stitches. She did not have plans to commit suicide or harm anyone else.
38The Board finds that criterion (b) was not met.
(e) no less restrictive method of providing treatment appropriate for the
child’s mental disorder is appropriate in the circumstances.
39Since the child does not have a mental disorder, this criterion cannot be met and it is not necessary to address it. However, the Board makes the following observations. [The Child] was seen by a psychiatrist at [Hospital A] and referred for services at Child and Family Services. It was also confirmed that units were available at [City A] and [City B]. There is the opportunity to explore other avenues and the use of additional medications on an outpatient basis.
40On the basis of the evidence presented, the Board finds that less restrictive methods of providing treatment could have been explored. The Board was not satisfied that criterion (e) was met.
41Where even one of the criteria is not met, the Board must release the child. In this case, three of the five criteria were not met. Criterion (d) is also dependent on the existence of a mental order and the Board notes, could not therefore apply.
CONCLUSION
42The Board ordered the release of the Child on February 4, 2011 because the criteria in subsections 124(2) (a), (b) and (e) were not met at the time of admission.
Mary Wong
Presiding Member
Alina Lazor
Panel Member
Frances Sanderson
Panel Member
Dated at Toronto, Ontario on this 2nd day of March, 2011.