R.M. v. Youthdale Treatment Centres, 2012 CFSRB 8

CHILD AND FAMILY SERVICES REVIEW BOARD

R.M.

v.

Youthdale Treatment Centres

REASONS FOR DECISION

Date: February 8, 2012

Citation: 2012 CFSRB 8

Indexed as: R.M. v. Youthdale Treatment Centres (CFSA s.124)

INTRODUCTION

1This is an application by R.M. (the “Child”), born March 16, 1998 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”). The application was dated January 14, 2012 and related to the Child’s admission to Youthdale on January [ ], 2012. The hearing was held on January 17, 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 had been met and that the application should therefore be denied. The Child’s position was that four of the five criteria had not been met and that she 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).

4For the reasons that follow, the Board found that the Child did not meet criterion (a) listed in section 124(2) and ordered that she be released from Youthdale.

PRELIMINARY MATTERS

5The Board dealt with two preliminary matters concerning the criteria being contested and admissibility of certain materials as evidence.

6Counsel for the Child indicated that the Child was not contesting criterion (c), but that criteria (a), (b), (d) 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.

7Counsel for the Child indicated that he would object to the admission into evidence by Youthdale of the Admission Summary and of Form 14, unless the admitting psychiatrist was available to be cross-examined on these two documents.

8Counsel for Youthdale advised that the admitting psychiatrist would not be called to testify at the hearing.

9Counsel for the Child objected on two grounds. The Child’s liberty interests were at stake and she should be accorded due process and procedural fairness. This includes the right to cross-examine the admitting psychiatrist or another psychiatrist about the psychiatric opinions in the two documents in question.

10Counsel for the Child also asked for clarification regarding whether Youthdale’s decision not to call the psychiatrist as a witness was a matter of policy.

11Counsel for Youthdale clarified that the decision not to call the psychiatrist as a witness was made on the basis of practical considerations, namely that he or she is working a busy, tight schedule and can serve the facility better by engaging in clinical activities rather than by appearing as a witness in the appeal proceedings.

12Counsel for Youthdale also argued that with respect to the Child’s liberty interests, it was less likely that either physical or chemical restraints would be used to restrict the Child’s liberty, since the facility was a secure facility. She also presented case law examples related to the value and admissibility of and weight given to hearsay evidence (Starson v. Swayze 2003 SCC 32, [2003] 1 S.C.R. 722; E. v. Desai, 2006, ON S.C).

13The Board ruled that it would not accept the Admission Summary or the Form 14 as evidence, without the presence of the admitting psychiatrist or another psychiatrist to give testimony and be available for cross-examination. Both Charter protections and procedural fairness entitle the Child the right to test the critical evidence that has led to her loss of liberty. The Child’s liberty interests are primarily and directly impacted by her admission into Youthdale and the Form 14 and Admission Summary contain the basis for the Child’s deprivation of liberty.

BACKGROUND

14The Child is a 13-year-old youth who was admitted to Youthdale on January [ ], 2012. She came into the care of the Native Child and Family Services (“the Society”) when she was five years old. She has had multiple placements since she first came into care with a plan to be returned to her birth mother, that to date has not been implemented.

15In the six months prior to her admission into Youthdale, the Child had had seven different placements. Her most recent placement prior to admission was at [group home], a group home affiliated with the Society. She had been moved between [another group home] and [group home] and both Society group homes, a number of times for reasons related to her behaviour and unrelated to her behaviour. In addition, she spent a couple of months at the [placement] and had a previous admission to Youthdale in August of 2011.

16The Child exhibited a number of concerning behaviours in the last month she was at [group home] and the Society applied for admission to Youthdale. The Child was admitted on January [ ], 2012.

ANALYSIS

17The criteria that the Board must apply in secure treatment reviews are set out in the following legislative provision:

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,

(b) the child has a mental disorder;

(c) 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;

(d) 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;

(e) treatment appropriate for the child’s mental disorder is available at the place of secure treatment to which the application relates; and

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

18Each of the above criteria must be met at the time of admission to confirm the Child’s placement at Youthdale. In this case, criterion (a) was not met as described below.

Criterion (a) the child has a mental disorder.

19The Board is not 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.

20The Board heard from two witnesses for Youthdale who had significant direct contact with the Child. One of the workers was her primary worker and the other was a child and youth worker who worked at [group home] and was present during the period just prior to the Child’s admission to Youthdale. The Child’s primary worker did not have direct knowledge of the incidents and behaviours that led the Society to make an application for admission into Youthdale. He testified that he had been on vacation from December [ ], 2011 through January [ ], 2012 and had been informed that the Child had been unstable during his absence. Staff had informed him that the Child had bullied a peer and had been uttering threats and that the agency was seeking guidance from Youthdale about how to manage her behaviour.

21The primary worker described a pattern of behaviour exhibited by the Child in the months leading up to the admission at Youthdale. This pattern included leaving the facility without permission (“AWOL”), being unwilling to attend school and being uncooperative and confrontational with staff.

22The child and youth worker testified about the incidents that led to the application to Youthdale. The Child had been on a visit with her mother over the holidays and did not return to the group home as planned. While the Child was AWOL, she returned to her mother’s home and hid in the basement. The police found her and she was returned to the group home. The Child testified that she had gone and stayed with a girlfriend during this time. On January [ ], 2012, a few days after her return to the group home, the Child became upset with a peer in the house and went into the kitchen, knocked a microwave off a counter and took a butter knife from a drawer. The worker stated that the Child would not hand over the knife and he restrained her. Her behaviour further escalated over the weekend. She made threats to peers, would not comply with staff and pushed this witness who was assigned to “shadow” the Child.

23A supervisor who witnessed the incident on January [ ], 2012, testified that she was grazed with the microwave that the Child had knocked off a kitchen counter on that date. She also stated that she had worked with the Child for one month, but had known her since August 2011. She stated that the Child’s behaviour escalates after she returns from being AWOL and that the Child wants to go home. Apparently, there was a recent plan in place for her to return to her mother, but it fell through once the Child refused to attend school.

24The Board heard from the Child about the incidents that led to her admission. She indicated that she did not intend to hurt anyone with the microwave or the knife. She had wanted to use the knife in order to open the basement door. She stated that during the recent AWOL after the holidays, she stayed with friends who had either a mother or grandmother at home. She stated that she misbehaved because she wants to go home and she had been told in November that she was to be going home in January and then the plan was cancelled.

25The Board did not hear any direct medical evidence regarding the Child having a mental disorder. It did hear both from the primary worker and a member of the Youthdale crisis team that one psychiatrist who had been consulted, indicated that the Child had no clear mental health diagnosis. Reports submitted into evidence based on previous assessments noted that the Child did have attention deficit hyperactive disorder and a number of provisional diagnoses were made at the time of the Child’s previous admission into Youthdale in August 2011. None of these, however, addresses the issue of a mental disorder at the time of the Child’s admission on January [ ], 2012.

26A 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. The Board did not hear any evidence to indicate that this criterion had been met. There was no evidence that the Child attempted to, or directly threatened to cause serious harm to herself or others, which could be evidence of a mental disorder. The Board acknowledges that the Child has been difficult for the Society to manage and challenging to work with. The behaviours that the Child exhibited prior to admission are clearly indicative of rebellious and angry behaviour. The Child may have reason to be rebellious and angry in the face of her recent chaotic placement history and disappointment associated with not going home.

27On 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 Youthdale. The Board was satisfied that criterion (a) was not met.

28Each of the five criteria under section 124 (13) of the Act must be met at the time of admission, to confirm the Child’s placement at Youthdale. In this case, the Board finds that the Child did not have a mental disorder as defined by the Act. Therefore criterion (a) was not met, which is a sufficient basis upon which to base its decision.

CONCLUSION

29Pursuant to section 124 (13) of the Act, the Board, having satisfied itself that the criterion (a) in subsections 124 (2) had not been met, released the Child on January 17, 2012.