J.K. v. Youthdale Treatment Centres, 2012 CFSRB 30

CHILD AND FAMILY SERVICES REVIEW BOARD

J.K. v. Youthdale Treatment Centres

REASONS FOR DECISION

Date: August 14, 2012

Citation: 2012 CFSRB 30

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

REASONS FOR DECISION

1This is an application by J.K., born October [ ], 2001 (the “Child”) for a review of his 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 July [ ], 2012 and related to the Child’s admission to Youthdale on July [ ], 2012. The hearing was held on July 23, 2012.

2The Board must decide, on a balance of probabilities, whether each of the criteria set out in subsections 124(2) of the Act was met at the time of admission. The Respondent’s position was that all five criteria have been met and that the application should therefore be denied. The Child’s position was that none of the criteria have been met and that he 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 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.

5For the reasons that follow, the Board found that the Child meets all of the five criteria for admission and denied the Child’s application. These reasons also deal with the issue of jurisdiction (and more specifically res judicata), as well as the Board’s evidentiary rulings relating to four Youthdale documents and a set of incident reports from the Child’s prior residence.

BACKGROUND

6[The child] is a 10 year old youth who was admitted to Youthdale for the second time on July 18, 2012 (the “admission”). He is a Crown Ward and in the care of [a] Children’s Aid Society (“the Society”), with access to his mother and grandmother. On July 17, 2012 another panel of the Board heard his application for release and allowed his application on the basis that criterion (a) (that the child had a mental disorder at the time of admission) had not been met. The date of that admission was July 11, 2012 (“the First Admission”).

7The first admission and this admission occurred within a seven-day period. Following the Child’s discharge on July 18, 2012, the Society arranged for [the child’s] return to his prior placement at [the Residential Treatment Centre] (the “Residential Treatment Centre”). However, within a short period of time following the discharge decision, the Child’s behaviour deteriorated and he attempted to harm staff. The child also made threats to kill himself. A decision was made that it was unsafe for the Child to leave Youthdale with [ ] (the “Child’s Worker) and [ ] (the “Children’s Services Supervisor”), and Youthdale called 911. The Child, [ ] was taken by ambulance to [ ] hospital where he was held in the adult emergency psychiatric ward after being placed on a “Form 1” under the Mental Health Act. The next day, following an assessment and discussion with [ ](the “Hospital Psychiatrist”), and communication between the Society and Youthdale, a decision was made to transfer the Child by ambulance to Youthdale.

Jurisdiction

8At the commencement of the hearing Counsel from the Office of the Children’s Lawyer (the “Child’s Counsel”) brought a motion for the Child’s immediate release without a hearing on its merits, on the basis that the issue had already been decided and was res judicata. The Child’s Counsel’s position was that the admission (which took place within 24 hours of the discharge) was in fact a re-admission, and as such unlawful. The Child’s Counsel submitted that the decision to admit the Child, and to require him to bring a second application for his release in the face of a finding that he did not suffer from a mental disorder (as set out in s. 124 (a) of the Act), was an abuse of process.

9It is well established that the test for res judicata is as follows: (a) that the same question has been decided; (b) that the decision was final; and (c) that the parties involved in the first decision are the same parties to the current proceedings. (See for example, Canada (Canadian Human Rights Commission) v. Canada Post Corp, 2004 FC 81, [2004] F.C.J. No. 439).

10Youthdale conceded that parts (b) and (c) of the test had been met. With respect to part (a), Youthdale submitted that the matter before the Board is whether the Child suffered from a mental disorder and met the criteria set out in s. 124(2) of the Act on July 18, 2012. Youthdale took the position that since the July 17, 2012 hearing before the Board was limited to evidence that pre-dated the Child’s first admission to the facility (on July 11, 2012), a hearing relating to the Child’s admission on July 18, 2012 does not deal with the same question that has already been decided.

11The Board determined that res judicata does not apply. This hearing was not an appeal of the July 17, 2012 decision of another panel, but a de novo (new) hearing of the merits of the July 18 admission. The Board concluded that it would not limit the evidence to the period of time between the two dates of admission (being July 11 to July 18, 2012), as requested by the Child’s Counsel. However, in considering the merits of this case the Board would not re-visit the issue that had already been determined. While the panel did not have access to the reasons from the July 17, 2012 hearing, it was aware that Youthdale had failed to procure sufficient evidence that the Child suffered from a mental disorder on July 11, 2012. The issue before this panel would be whether, based on the evidence provided at this hearing, the five criteria were met on July 18, 2012.

Evidentiary Rulings

12As a preface to both evidentiary rulings, the Board reiterates that the onus in establishing that the five criteria are met rests with Youthdale. At the hearing, Youthdale sought to enter into evidence the Form 14 and admission summaries produced by the Admitting Psychiatrist at the facility on July 11 and 17, 2012, without calling the doctor as a witness. Counsel for the Child objected.

13Youthdale submitted that the documentation ought to be accepted as business records, and as such they are not obligated to produce the witness. Youthdale further submitted that the Board or the Child’s Counsel could have issued a summons if it was determined that the psychiatrist’s testimony, and the ability to test the evidence, was necessary. The Board notes that there is no obligation on the Child’s Counsel or the Board to issue summons to any potential witness upon receipt of documentary evidence provided by Youthdale. Further, it is for Youthdale to decide which witnesses to call and what evidence to procure in order to meet the test. The onus is on the balance of probabilities.

14The admissibility of certain documentary evidence in the absence of the author of the documents has been determined by the Board on many occasions and, is comprehensively set out in S.I. v. Youthdale Treatment Centres (CFSA s.124), 2010 and replicated in part below:

There is nothing in the CFSA which 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. This is particularly the case regarding clinical witnesses who make the assessment about the existence of the criteria as a pre-requisite to admission and who can assist the Board in making a determination in the best interests of the Child. (Paragraph 13)

15In this case, counsel for the Child would not have the opportunity to cross-examine the authors of the documents, being the admission summaries (July 11 and 18, 2012), the Form 14 documents (July 11 and 18, 2012 and the discharge summary (July 17, 2012)). The Child’s counsel also objected to the witness being shown the documents as he was not the author, nor did he have the professional expertise to offer an opinion respecting same. Youthdale responded that these documents are created in the ordinary course of business, and the Board is entitled to consider hearsay evidence. Youthdale further submitted that a failure to consider this evidence would lead to an incomplete picture as to why the Child was admitted. Finally, Youthdale argued that the admitting summaries, Form 14 documents and discharge summary were properly served on the Child’s Counsel and the Board. Counsel stated that the reason why the psychiatrists were not in attendance to testify is that no one had made the request that these potential witnesses be present. Youthdale requested that the Board admit the documents and assess the appropriate weight to attribute to the hearsay evidence.

16The Board declined to accept the documentary evidence, following the reasoning set out in various earlier decisions, including S.I. v. Youthdale, as excerpted further below.

The Board has the implicit authority to decide questions of law when making a determination under s. 124(13) of the CFSA. The Board also has the authority over the specific remedy sought. The Board controls the conduct of its oral hearings pursuant to the CFSA and the SPPA. This includes making determinations under s. 15 of the SPPA about whether to admit or exclude certain evidence. The Board’s Rules of Procedure provide that the Board controls its own process (Rule 5) and mirror the Act with respect to emergency secure treatment hearings (Rules 97 to 112).

Section 15 of the SPPA provides that:

15(1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

(2) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or,

(b) that is inadmissible by the statute under which the proceedings arise or any other statute.

Pursuant to section 25.0 1 of the SPPA,

25.01 A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to procedures and practices that apply in any particular proceeding.” (Paragraphs 19 to 21)….

The paramount purpose of the CFSA is the best interests, protection and well-being of children [s. 1 (1)]. Additional purposes apply provided they are consistent with the paramount purpose and include consideration of the least disruptive course of action that is available and appropriate and service provision that includes participation of the Child [s. 1 (2) and 3 (iv)]. Emergency secure treatment provisions fall within the “Extraordinary Measures” section of the Act. The administrator of the secure treatment program has the power to admit the Child for up to 30 days on the basis of the criteria set in s.124 (2). The administrator must have “reasonable grounds” to believe the criteria exist. The criteria are clinical in nature and include an assessment of whether the Child has a mental disorder and whether no less restrictive method of providing appropriate treatment is appropriate. The Act mandates an oral hearing except where the Child consents and even then, the Board can hear oral evidence [s. 114, 115 and 124 (11)].

With 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. (Paragraphs 25 to 26)….

The Board must be cognizant of the expeditious nature of the hearing and the need for flexibility. Beyond the interests of the Child, if the Board is to benefit from expert testimony and rely on it with confidence, there must be room for explanation and clarification from the author where warranted. The admitting institution relies on its own psychiatrists for the admission and not on independent assessments. The admitting institution is a party to the proceeding with the onus to establish the criteria for admission. It would defeat the purpose of the right of review which incorporates the right to challenge the existence of the criteria if the Board were to automatically accept opinion evidence on the central issue before it with no questions asked. That a child’s liberty be retained and the least intrusive measure be utilized except in extraordinary instances are both consistent with and facets of the best interests of the Child as evidenced by the statutory scheme including the right of review itself. The CFSA has put in place numerous procedural safeguards for child applicants who seek to challenge their emergency admission. These safeguards support a high standard of due process. The right of review must be meaningful and include the option of testing the clinical evidence relating to the criteria for admission. (Paragraph 30)

17For these reasons, the Board ruled that the Form 14 and the Admission summary of the Admitting Psychiatrist or the discharge summary (authored by another psychiatrist) would not be entered into evidence unless tendered through the psychiatrists who authored the reports, giving the Child the opportunity to test the evidence through cross-examination.

18After receiving the ruling and declining to admit the Form 14 and Admission Summary, Youthdale called the Admitting Psychiatrist. The Form 14 and Admitting Summary from July 11, 2012 and July 18, 2012 were entered into evidence. Youthdale declined to call the author of the discharge report and it was not accepted into evidence. The Child had the opportunity to cross-examine the Admitting Psychiatrist and the Board also had the benefit of the evidence of the Admitting Psychiatrist.

19The second evidentiary issue related to a set of approximately 80 incident reports produced by various staff employed at the Residential Treatment Centre from January to June 2012. Youthdale sought to tender the reports through their witness, [ ] (the “Residential Treatment Worker”). She testified that she was present for some but not all of the incidents upon which the reports were based. The Board refused to admit the set of incident reports as the witness did not author most of the reports.

20Youthdale appeared to want to admit the documents, which contained clinical information, for the truth of its contents. The Board finds that the incident reports documenting clinical descriptions related to events in the child’s stay at the residence and the resulting treatment by staff are not “business records”. The Board adopts its reasoning above relating to the Youthdale documents with respect to the duty of fairness (as set out in the common law, the Charter, and the SPPA) and the approach to clinical evidence generally in the emergency secure treatment context. The Board adds the following.

21The Board found that to admit the set of incident reports in the circumstances would be procedurally unfair to the Child. The Child should be able to test the evidence in terms of its reliability and its content. Like the documents from the Admitting Psychiatrist, Youthdale seemed to want the Board to rely on the significant number of reports, the seriousness of the incidents and the repeated use of restraints by the Residential Treatment Centre staff to support the existence of the criteria at the time of admission. Again, because the Child’s liberty and security of the person interests are engaged, this necessitates that the option of testing the evidence be given to the Child. At the hearing the Residential Treatment Worker was available to testify as to her personal knowledge of the incidents themselves and the use of restraints, and she was permitted to use the reports that she authored to refresh her memory. The Child had the opportunity to cross-examine the Residential Treatment Worker and the Board also had the benefit of the evidence of a staff member who had personal knowledge of the Child’s behaviour and risk of harm.

22The Residential Treatment Centre reports were not admitted into evidence.

ANALYSIS

REASONS FOR DECISION ON THE MERITS

23The Child did not testify at the hearing. The Board accepts the hearsay evidence of the social workers, child and youth workers and the Admitting Psychiatrist about what the Child told them because the Child has led no evidence to the contrary.

Criterion (a) the Child has a mental disorder.

24The Board is satisfied that at the time of this admission, the Child had a mental disorder within the meaning of the Act. A mental disorder is defined as a substantial disorder of emotional processes, thought or cognition, which grossly impairs a person’s capacity to make reasoned judgments.

25Based on the evidence presented at the hearing on July 17, 2012, that panel found that the Child did not suffer from a mental disorder. That panel heard no direct evidence from a psychiatrist. At the hearing on July 23, 2012, the Board heard evidence about the Child’s behaviour after been admitted to Youthdale and following his discharge, including evidence of the Admitting Psychiatrist, that supports the conclusion that the Child suffered from mental disorder on July 18, 2012.

26The Admitting Psychiatrist assessed the Child on both admissions and testified in this proceeding. In making his assessment of whether the Child had a mental disorder he referenced the Child’s admission summaries from July 11 and 18, 2012. The doctor had seen the child during a consultation at [the Residential Treatment Centre] eight days prior to the first admission, and during the Child’s recent stay at Youthdale.

27According to the Admitting Psychiatrist, the Child suffers from Intermittent Explosive Disorder (“IER”), a disorder that causes the Child to experience temper outbursts without provocation or cause, leading to actual and/or threatened harm to himself and others. The Child cannot express what causes the outbursts, nor can he process what has taken place after he is contained. The effects of the IER are complicated by the other mental disorders suffered by the Child including, Attention Deficit/Hyperactivity Disorder, and Tourette’s Syndrome. According to the Admitting Psychiatrist, [ ] the Child also suffered from sleep disorders and possible Post-Traumatic Stress Disorder and/or Reactive Attachment Disorder.

28Evidence of the impact of the above disorders is found in the Child’s behaviour on July 17 and 18, 2012, as described by the Child’s Worker and the Children’s Services Supervisor, both employed by the Society. The Child’s worker testified that the Child was in good spirits after being told that he would be released from Youthdale (a process commenced on his instructions). The Child’s worker and the Children’s Services Supervisor took that opportunity to talk with the Child about what he had learned at Youthdale. When the Child’s Worker and the Children’s Services Supervisor informed the Child that they would be taking him back to the Residential Treatment Centre, he immediately became agitated and aggressive. The Child demanded to stay at Youthdale, then requested to be returned to his mother, subsequently threatening to go live on the streets as a “hobo”. The Child banged his head on the window and charged at the door, necessitating a third staff to enter the room and attempt to physically secure him. The Child kicked at his bag and tried to knock over the furniture. He was screaming in a “foreign” accent, yelling sexually derogatory labels at the staff, and threatening to and making homicidal and suicidal threats. The Child subsequently calmed down, then became agitated again without a known trigger, speaking incoherently. He was given medications to calm down.

29As a consequence of the Child’s aggressive behaviour and emotional distress, it was determined that it would be unsafe for the Child to leave Youthdale with the Society workers. The Admitting Psychiatrist, though not present at discharge, testified that the behaviour was very concerning because the Child became unstable imminently after learning of move to the Residential Treatment Centre. [ ], (the “On-call Psychiatrist”) at Youthdale on July 18, 2012, placed the Child on a Form 1 under the Mental Health Act. The staff contacted 911, as Youthdale understood that the Child could not remain in the facility, as the Board had discharged him.

30Under the Mental Health Act, part of one of the criteria for obtaining a Form 1 for the purposes of a psychiatric examination is that the person has received past treatment for a mental disorder and is apparently suffering from the same or a similar mental disorder. Under the Mental Health Act, “mental disorder” means “any disease or disability of the mind” and clearly encompasses more disorders than does the CFSA definition. The Board considered the fact that the Child was placed under a Form 1 but it was in no way determinative of whether a mental disorder existed under the CFSA, as the CFSA has a narrower definition.

31The Child’s verbally and physically assaultive behaviour, coupled with the hospital’s assessment of the Child after being placed under the Form 1, support the conclusion that he was suffering from a mental disorder at that time. When the ambulance and police arrived at Youthdale, the Child was strapped to a gurney in order to transport him to the psychiatric ward at [ ] hospital, a result of the Child’s aggressiveness (notwithstanding the medications he was given at Youthdale). Upon arrival at the hospital two police officers and a hospital babysitter remained in attendance (along with the Child’s Worker) because of concerns that the Child may harm himself or others. The Child attempted to punch his escort and was verbally assaultive. He remained under the surveillance of two staff known to him from the Residential Treatment Centre.

32The next morning the Child’s Worker returned to hospital and observed that the Child was zoning out and unresponsive to her. The Child appeared to be “spacing out”. She contacted the Children’s Services Supervisor, who met with another children’s services supervisor and the director of the Society. Discussions took place between the crisis team at Youthdale and the Hospital Psychiatrist who had assessed the Child. All parties involved in the discussions agreed that the Child would be transported to Youthdale. The Hospital Psychiatrist sent a letter confirming his support for the Child’s return to Youthdale.

33The incident described previously is not an isolated event but a pattern of behaviour that exemplifies the Child’s deteriorating mental health in the days and months prior to July 18, 2012. For example, on the date of first admission to Youthdale, the Child’s mood changed from calm and cooperative to an angry and agitated state, when he was asked to shower before moving to the ward. The Child was physically assaultive to the staff, resulting in the use of intramuscular meds and physical restraint in order to de-escalate him. Three days later (July [ ], 2012) a Physical Restraint Report produced by Youthdale describes the Child as moving from calmness to a loud and aggressive state without an observable trigger (although a family meeting had taken place that day). During this incident the Child asserted himself in a loud and verbally abusive manner, including threats to staff, swinging his fists in the air. The Child would then become quiet periodically, subsequently re-commencing the swearing and aggression. The Child was unable to regulate his emotions and caused disruption on the ward, to the point that staff were required to utilize a physical restraint to break the cycle and was given intramuscular medication to reduce his aggression.

34Every witness called by Youthdale provided direct or indirect knowledge of the many examples of the Child’s disregulated behaviour following the first admission to the ward, and in the three months immediately preceding that admission. The Board heard evidence that the dramatic deterioration in the Child’s emotional stability commenced in January 2012, and may be related to his feelings about the birth of a half-sibling.

35The Admitting Psychiatrist gave his opinion about the Child’s concerning behaviours at the Residential Treatment Centre during this time-frame including the Child’s running onto the street, standing in front of parked cars in an attempt to be hit, head-banging, homicidal threats, assaulting staff, threating to kill/hurt staff and peers, chasing peers with a knife and dissociative behaviours such as zoning out. The use of all four forms of physical restraints was deemed necessary, on an almost daily basis. Various forms of psychotropic medications were provided at the Residential Treatment Centre and at Youthdale, without successfully managing the Child’s unprovoked anger and unpredictable outbursts. The Admitting Psychiatrist testified that these behaviours, including physically assaulting a staff on the date of the original admission to Youthdale, are evidence that the Child’s judgment is grossly impaired and that, in his opinion, the Child suffers from a substantial disorder of emotional processes and cognition that grossly impairs his ability to make reasoned judgments.

36The Board is satisfied that the Child has a substantial disorder of emotional processes and cognition. The Child cannot control his emotions, nor can he express what is triggering his behaviours. He is not unable to process his actions or thoughts after the aggressive outbursts, nor can the cycle be broken in the absence of restraints or medications. This disorder has grossly impaired the Child’s ability to make reasoned judgments.

37The Board was satisfied that criterion (a) was met at the time of this admission. In drawing this conclusion, the Board looked primarily to the events that took place subsequent to the July 11, 2012 admission to Youthdale.

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.

38The Board was satisfied that the Child, as a result of his mental disorder, attempted to cause serious bodily harm to himself, and made a substantial threat to cause serious bodily harm to himself. As set out in greater detail above, the Child’s behaviour during the less than 24 hour time-frame from the first discharge to admission included various attempts to hurt himself (head-banging and kicking) and the staff, as well as police (hitting, kicking, waving his arms).

39As detailed previously, following the decision to discharge the Child, he became agitated and aggressive without provocation. In the minutes and hours that followed, the Child lunged at the door, kicked the walls and repeatedly banged his head on the window. The “head-banging” behaviour, in particular, is concerning as this was a strategy used by the Child in the past when he would attempt to hurt himself. He refused to return to the Residential Treatment Centre and, in an agitated state he made contradictory demands, screaming that he wanted to go home, wanted to stay at Youthdale, and threatened to go live on the street. Additional staff were required to physically restrain the child so that he would not hurt himself or the staff. After arriving at [ ] hospital the Child continued to challenge the police and staff, and he attempted to swing at the Child’s Worker. The Child threated to harm himself and said that he “wanted to die”.

40The Child’s attempts to seriously harm himself (by head banging glass) and his threats to kill himself (out of control and aggressive actions while threatening to harm himself and “wanting” to die) must be considered in the context of the recent history (January to July 2012). The Child’s volatile behaviour during that period, included “head-banging”, going AWOL from his residence while under the supervision of a one-to-one worker, and attempting to harm himself by standing behind parked cars. The threats of serious bodily harm while at Youthdale and at [ ] Hospital must be treated as real and thus, substantial because they demonstrate that the Child has decompensated further and represent an exacerbation of the child’s increasingly unpredictable and volatile behaviours. Given the increase in and extent of out of control behaviour, it is likely that he would have seriously harmed himself had staff not intervened. These attempts and threats are a result of the Child’s mental disorder. The Child’s inability to control his emotions and his inability to de-escalate his behaviour once agitated, resulted in the behaviours that presented a substantial risk of serious bodily harm to the Child on July 18, 2012.

41Based on this evidence, the Board is satisfied that criterion (b) was met in terms of Child’s attempts to cause and substantial threats of causing serious bodily harm to himself.

Criterion (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.

42The Board was satisfied that the secure treatment program would be effective to prevent the Child from causing or attempting to cause serious bodily harm to another person. The Child conceded that this criterion was met.

43The Crisis Worker testified that Youthdale is a secure unit. The Child has a one-to-one worker, and there are five on-duty staff to care for nine residents. The Child cannot run away, as he has done in the recent past. Youthdale employs an individual programming model. As a result, the Child has access to a separate area, the transitional room, to ensure that other youth are not at risk and to provide a low-stimulation program and space for a child who cannot manage stimulation. The staff at Youthdale are trained in therapeutic crisis intervention to verbally de-escalate children that suffer various mental health issues. They have also been trained how to contain children physically when violent, and nurses on staff can provide psychotropic meds to de-escalate children when necessary. The Child has limited or no access to sharp items such as pencils, forks and knives. The Child’s destructive and potentially harming behaviours can be managed in this locked setting. The Admitting Psychiatrist confirmed that Youthdale could provide a safe and secure placement effective at preventing serious bodily harm.

44The Board was satisfied that criterion (c) was met.

Criterion (d) treatment appropriate for the Child’s mental disorder is available at the place of secure treatment to which the application relates.

45The Crisis Worker testified that the following treatment is available at Youthdale: (a) regular contact (daily or alternate day access) to a child psychiatrist; (b) peer therapy with a psychiatrist; (c) psychological testing if necessary; (d) family therapy with a psychiatrist; (e) family visits and meetings; (f) access to a sleep lab; (g) treatment for Tourette’s Syndrome; (h) access to social workers; and , (i) access to neurological testing.

46Based on the Child’s needs as assessed during the first admission and in the weeks preceding that admission, Youthdale determined that the Child may need a neurological assessment, and access to the sleep lab. The other services set out above would be utilized as deemed appropriate.

47A primary treatment goal identified by the Admitting Psychiatrist and the Child’s Worker, is to fully assess the Child’s medications and make appropriate adjustments. This can be done safely at Youthdale, as it is a secure setting and the program is of sufficient duration (to a maximum of 30 days) to be able to test, evaluate and adjust the medications. The Admitting Psychiatrist also confirmed that Youthdale could provide various forms of treatment as described by the Crisis Worker.

48The Board was satisfied that criterion (d) was met.

Criterion (e) no less restrictive method of providing treatment appropriate for the Child’s mental disorder is appropriate in the circumstances.

49The Board is satisfied that no less restrictive method of providing treatment appropriate for the Child’s mental disorder is appropriate in the circumstances.

50By way of background, the Child has lived in a Residential Treatment Centre for one year prior to the two admissions. The Residential Treatment Worker testified that the Child was not benefiting from any form of treatment during the months preceding the first admission, because of his increasing inability to participate in the program. For example, the Child was no longer able to attend school for more than a few minutes and could not participate in group activities. He was assigned a one-to-one worker in March 2012, but his behaviour continued to deteriorate. By June 2012, the Child required two workers to supervise and contain him, and the risky behaviours described previously led to many incident reports and the use of restraints on a daily basis (sometimes more than once per day). Consultations with [ ], (the “Treating Psychiatrist”), resulted in changes to his medications as recently as May 2012, but with no improvements.

51On June [ ], 2012, a case conference was held at the Residential Treatment Centre, and [ ], (the Consulting Psychiatrist”) was in attendance. The Residential Treatment Worker, the Child’s Worker and the Children’s Services Supervisor attended the case conference and provided testimony about the considerations that were discussed that day. At that meeting the professionals agreed that the Residential Treatment Centre no longer met the Child’s needs, and various options were considered. Before concluding that an application should be made to Youthdale, the group rejected the following options for the reasons that follow: (a) [Centre for Mental Health Services] - the minimum age for service is twelve; (b) [ ] Centre – the [ ] location would impede the mother and grandmother’s access; (c) hospitals in [ ] Region with psychiatric facilities – the absence of child and youth wards; (d) hospitals in the [city] area with psychiatric facilities, such as [Hospital 1], [Hospital 2], [Hospital 3], [Hospital 4], [Hospital 5]– the concern that these hospitals would release the Child once he was stable (likely within hours or days) without completing the various forms of assessment that the Child required, which would take considerable time to complete.

52The professionals concluded that there was no less intrusive method to provide the Child with the appropriate treatment. Youthdale was the only option considered that would provide a safe and secure placement for the duration required to fully explore the Child’s needs, (including various assessments such as neurological testing and a sleep study which could otherwise require a delay of 18 to 24 months to obtain these tests in the community) and to adjust his medications.

53For these reasons the Residential Treatment Centre sought and obtained the Minister’s consent for the Child’s first admission to Youthdale, as is required since the Child is less than twelve years old. The Minister’s office was contacted on July 18, 2012 and once again consented to the Child’s admission to Youthdale.

54The relevance of evidence set out above to the Child’s admission to Youthdale on July 18, 2012 is as follows. The various professionals working with the Child had comprehensively considered less intrusive options in the weeks prior to the admission. The Child’s almost immediate disregulation after being released from Youthdale on July [ ], 2012, was highly concerning to the workers meeting with the Child that day, and to the On-site Psychiatrist. Believing that the Child could not be kept at Youthdale, the staff contacted 911 and he was taken to the adult psychiatric ward at [ ] Hospital. The Child’s worker testified that the Child was frightened of the adult patients, barely slept that night and was given little food. The Child was provided only some of his medications and he received no treatment for his mental health issues.

55On July [ ], 2012, the Child’s Worker, the Children’s Services Supervisor, the Residential Treatment Worker, the Hospital Psychiatrist and the Admitting Psychiatrist shared the belief that [ ] Hospital was not an appropriate setting to treat the Child. The Residential Treatment Worker testified that the Child’s experience at the hospital was evidence to support the conclusion that no hospital would provide appropriate care, as [ ] hospital was one of four possible alternatives identified (but rejected for the reasons described above) by the Consulting Psychiatrist at the case conference on June [ ], 2012.

56The Child’s negative experience at [ ] Hospital, coupled with the concerns raised at the Case Conference (that the Child would likely be discharged from a hospital before a full assessment of his needs could be completed), led the Residential Treatment Worker to conclude that another hospital setting would not be appropriate.

57The Child and Youth Worker testified that Youthdale sometimes calls around to community hospitals with child and youth psychiatric wards, when a Youthdale psychiatrist or manager determines that this may be appropriate based on the Child’s presenting problems. In this case, Youthdale did not inquire about a bed for the Child, as it was determined that Youthdale was the safest option and more secure. While the Child and Youth Worker acknowledged that a community hospital can provide care for a child for two to three months, he testified that they typically provide short-term immediate crisis care. Further, in his intake role the Child and Youth Worker often receives calls from hospitals such as [ ] and [ ] with requests to accept their patients because Youthdale provides longer term care.

58As an aside, the Board is not clear as to why the Child was not placed in a children’s mental health unit at a community hospital when the crisis arose. No evidence was provided that any of the professionals present at Youthdale requested that the ambulance take the Child to a child and adolescent psychiatric ward, or that he be moved once it became apparent that his placement on the adult emergency psychiatric ward at [ ] hospital was not in his best interests While the Board accepts that a child and adolescent community hospital placement would not have been appropriate to deal with the Child in the medium- and long-term, it would have been a better immediate-term option on July [ ], 2012. Another option that was not canvassed by any of the professionals was to provide the Child the opportunity to meet with his counsel to assess whether he was prepared to remain at Youthdale on a voluntary basis. Either of these options may have reduced the traumatic experiences endured by the Child on July [ ] and [ ], 2012, which included being strapped to a gurney in the ambulance and being held on an emergency psychiatric ward with adult psychiatric patients.

59Notwithstanding the above concerns about the decisions made with respect to the Child’s immediate treatment needs on July [ ], 2012, the Board is satisfied that no less restrictive treatment was appropriate as of July [ ], 2012. Treatment in a children’s mental health ward at a community hospital while less restrictive was not appropriate in the circumstances, given that the Child’s clinic team had and continued to rule this out as a treatment solution since it was for an insufficient period of time and of a more crisis focussed nature.

60The Board is satisfied that criterion (e) was met.

CONCLUSION

61Pursuant to section 124 (13) of the Act, the Board, having satisfied itself that the criteria in subsections 124 (2) (a) through (e) have been met, dismissed the application of the Child, [ ], under section 124(9) of the Act, on July 23, 2012.

CONFIDENTIALITY ORDER

62Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any documents or information shared by the parties must be used only for the purpose of the hearing of this application by the Board.

DENYSE DIAZ ________________________

Denyse Diaz

Presiding Member