K.L. v. Youthdale Treatment Centres, 2011 CFSRB 32

CHILD AND FAMILY SERVICES REVIEW BOARD

K.L.

v.

Youthdale Treatment Centres

REASONS FOR DECISION ON MERITS

Date: September 20, 2011

Citation: 2011 CFSRB 32

Indexed as: K.L. v. Youthdale Treatment Centres (CFSA s.124)

INTRODUCTION

1This is an application by K.L., born December […], 1996 (the “Child”) 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 August 10, 2011 and related to the Child’s admission to Youthdale on August […], 2011. The hearing was held on August 17, 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. Youthdale’s position is that all five criteria had been met and that the application should therefore be denied. The Child’s position is that criteria (a), (b), 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 for admission and granted the Child’s application. This decision also deals with the Board’s rulings relating to procedural issues at the hearing.

PRELIMINARY ISSUES

4The Board dealt with preliminary matters concerning the admissibility of certain materials as evidence.

5Counsel for the Child indicated that the Child was not contesting criteria (c) and (d), but that criteria (a), (b), and (e) would be contested. The Board must still satisfy itself that all criteria are met. If there is no mental disorder under criterion (a), then criteria (b) (d) and (e) cannot apply.

6Counsel for the Child also indicated that he would object to the admission into evidence by Youthdale of the Admission Summary and of Form 14, unless the admitting psychiatrist or another psychiatrist were available to be cross-examined on these two documents. This position had already been articulated through correspondence faxed by counsel the day previous (August […], 2011), and addressed to all parties.

7Counsel for the Child submitted to the Board two previous decisions of the Board: B.R. v. Youthdale Treatment Centres [ES10-0027, November 2 2010], and J.W. v. Youthdale Treatment Centres [ES11-0002, March 2 2011].

8In essence, three main issues were raised from the above two cases: that the Form 14 and the Admissions Summary could not be admitted into evidence through the Crisis Worker; that Youthdale’s records are not business records within the meaning of the Evidence Act (Ontario), because they contain medical opinions and do not merely record facts; and that it was vitally important to test through cross-examination the evidence in the Form 14 and Admission Summary which may contain the basis for the Child’s deprivation of liberty and commitment to a locked setting for up to thirty days.

9Counsel for Youthdale suggested that counsel for the Child could request a summons compelling the admitting psychiatrist to attend and give evidence; alternatively, the Board could issue a summons for the same effect. Counsel for the Child responded that J.W. v. Youthdale Treatment Centres clearly articulated that the onus in establishing that the five criteria are met rests with Youthdale and that the onus is on Youthdale to produce the evidence to meet the requirements of that onus.

10At this point, the Board asked counsel for Youthdale if a psychiatrist would be available to testify. Counsel responded that a psychiatrist would not be available, since they were busy seeing other children, or attending case conferences and case consultations. The Board asked counsel for Youthdale to get instructions on three questions posed by the Board:

*** how much “notice” would be required to get a psychiatrist to attend today?

*** would a psychiatrist be available if the Board accommodated their attendance for any time through the day of the hearing?

*** would a psychiatrist be available if the Board accommodated their attendance for any day for the rest of this week, including Saturday?

11After a brief recess to permit counsel to consult with his client, the hearing reconvened. Counsel for Youthdale informed the Board that he had spoken with S., a Supervisor, who had also consulted with others. Counsel indicated that Youthdale was unwilling to provide a psychiatrist, and that it is Youthdale policy to not provide a psychiatrist unless the Board requires one, which he stated the Board does not. A psychiatrist would respond to a subpoena, if one were issued. Counsel indicated that he accepted S. as speaking on behalf of Youthdale on this matter of policy.

12The Board ruled that it would not accept as evidence the Admissions Summary and the Form 14 without psychiatric testimony on the basis that these documents are medical opinions and not business records and that procedural fairness entitles the Child the right to test the critical evidence that has led to her loss of liberty. To hold otherwise would be contrary to the high standard of procedural fairness due where liberty is at stake and would deprive the Child of her liberty contrary to the principles of fundamental justice (s. 7 of the Charter). Both the Charter protections and the administrative law duty of fairness due in this instance include the right to test important evidence through cross examination. The onus is on Youthdale to call the appropriate witnesses to present their evidence and not on the Board or the Child to solicit this evidence.

BACKGROUND

13The Child was born on December […], 1996. The parents divorced twelve years ago. Originally the mother had custody of the Child; however, because of escalating problems, including allegations that the Child was abused, the father was awarded custody by the court just over six years ago. The Child has regular visits with her mother, even though the relationship with the mother is strained. There appears to be minimal supervision during these visits; the Child is described as “getting everything that she wants”.

14With regards to the mental health history in the families of the Child’s parents, the father’s brother had a “breakdown” at age 25, but has not had a recurrence; drinking may be a problem. On the mother’s side, there is some alcoholism but no substance abuse in the family.

ANALYSIS

15The Board found that the Child did not meet all of the requisite criteria under the Act because she did not have a mental disorder.

16Pursuant 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).

17The 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.

Criterion (a) “the child has a mental disorder”.

18The Board finds that, at the time of her admission, the Child did not have a mental disorder within the meaning of the Act. A mental disorder is defined at section 124 (13) of the Act as a substantial disorder of emotional processes, thought or cognition, which grossly impairs a person’s capacity to make reasoned judgments. The Board acknowledges that the Child did not make appropriate choices in many situations in the past couple of years; however the Board does not accept that the Child’s behaviour meets the definition of a mental disorder as set out in the Act. There was insufficient evidence submitted to suggest a substantial disorder, or that the Child’s judgements were grossly impaired at the time of admission.

19The Child’s father testified that difficulties started in June 2009, when it was discovered that the Child had been cutting herself. The father had found pieces of glass under the Child’s pillow of her bed. As well, his testimony was that she was sexually active, had unprotected sex, and was meeting older men (age 19 and 21) for sex, thus putting herself in a dangerous situation. There were frequent angry (verbal, not physical) outbursts, most days of each week; his testimony also indicated that the Child had kicked the dog in one of her angry outbursts. She smokes dope, drinks alcohol, and has stolen alcohol and prescription drugs from the father. The Child’s behaviour gradually became more difficult, with a significant escalation since March 2010, after an incident where the Child was sexually assaulted by a member of their church.

20In February and March of 2010, the Child was admitted to the [Centre A] of [Hospital A] on two occasions. She was sexually assaulted in early March 2010 by an older member of her church. Her behaviour changed and she became more depressed and verbally angry at her father, destroying the closet door, punching and kicking walls. She has made one suicide attempt, with 20 tablets of Lorazepam. The Child saw a sexual assault counsellor from May 2010 until July 2011 and was placed at [Centre B] from April to October of 2010. She received counselling through [ ] Children’s Aid Society and also saw a counsellor provided by [Centre B].

21The father’s testimony included a description of various places to which he had turned to get help for his daughter, which included the following:

a) referral to and eventual residential placement at [Centre B] from April 2010 to October 2010, followed by attendance at their day program, as well as regular meetings with a counsellor until the start of the Summer 2011;

b) two admissions to [Hospital A] crisis unit in early 2010, while awaiting intake and placement at [Centre B]; a number of meetings with a sexual assault counsellor at [Hospital A], from April 2010 to July 2011 (this service had many interruptions due to cancelled appointments because the Child was AWOL); the Child is now again on the waitlist for further counselling at this unit.

c) counselling at the [ ] Children’s Aid Society;

d) another episode of individual counselling in [ ] Region;

e) as a result of talking about suicide, counselling at the [Centre A] at [Hospital A], with referral to Dr. M. who prescribed anti-depressant medication; Dr. M. has seen the Child three times, and will see her again on September […] 2011.

22During cross-examination, it was revealed that the two men involved in the incident referred to above were ages 16 and 17, not 19 and 21 as earlier stated. As well, the father acknowledged that lately the Child has started to go for a walk when she needed to “calm off”, rather than having an angry outburst. As well, it was indicated that the Child probably did not cut herself since she left the group home in November 2010, that her last known use of alcohol was some 3 or 4 weeks ago, and that her last “run” was about 2 weeks ago.

23The Board also heard testimony for a second witness called by counsel for Youthdale. J. is a member of the crisis services team and is intensely involved in the intake and assessment functions. She described in general terms the range of services available at Youthdale, the team involvement in the referral and admission process, with the consulting psychiatrist having the final decision on admission. The witness highlighted in a general way the various entries in Exhibit 3, namely the Face Sheet and the Crisis Assessment Form. As well, she described what Youthdale had been able to offer to the Child: security, stabilization, and a beginning review of her medication.

24In cross-examination, counsel for the Child identified a number of factual errors in the records of Youthdale. The record shows the dates of admissions to [Hospital A] as February 2011 and again as March […] 2011 to March […] 2011; counsel stated that these dates were incorrect based on the direct evidence of the Child’s father, and that the admissions occurred in 2010, not 2011. As well, the record states “Last week dad found a pile of broken glass underneath her pillow. Child admits to cutting arms, thighs & abdomen”. Counsel noted that these events occurred a number of months ago, not last week. Counsel for the Child pointed out that if the admitting psychiatrist relied on the correct dates as opposed to the incorrect dates shown in the record, the decision of the psychiatrist when deciding on the application for admission to Youthdale may very well have been different.

25With regards to the above descriptions of the Child’s behaviour, the Board notes that most of these behaviours are in the past, and do not provide evidence on the balance of probabilities that the Child suffered from a mental disorder at the time of admission. The admissions to [Hospital A] were almost 18 months prior to the Youthdale admission. There was no evidence provided by a psychiatrist at Youthdale on the mental status of the Child at the time of admission. The last known cutting incident was some 9 months ago. Dr. M. who is currently involved with the Child, has prescribed medication and did not respond to an invitation to support the admission to Youthdale. Dr. M. is scheduled to see the Child again in September, 2011. In fact, the Child has indicated by her actions that she is open to going for counselling, recognizing that she does need some help. This demonstrates positive use of her judgment.

26There is no evidence that the Child attempted or threatened to cause serious bodily harm to herself or to others, which could be evidence of a mental disorder. The Board also recognized that no medical evidence was submitted, that there have been no recent emergency admissions to hospital, and generally that most of the activities described as causing concern were not significant at the time of admission.

27The Board finds that criterion (a) has not been met.

Criteria (b) through (e).

28In line with the Board’s finding on criterion (a), the remaining criteria have become moot, and no findings have been made on them.

CONCLUSION

29Pursuant to section 124 (13) of the Act, the Board, having satisfied itself that the criteria in subsection 124(2) have not all been met, allowed the application of the Child, and ordered her release on August 17 2011

Mary Wong

Presiding Member

John F. Spekkens

Panel Member

Alina Lazor

Panel Member