A.C. v. Youthdale Treatment Centres, 2015 CFSRB 19

CHILD AND FAMILY SERVICES REVIEW BOARD

A.C.

v.

Youthdale Treatment Centres

REASON FOR DECISION

Date: April 21, 2015

Citation: 2015 CFSRB 19

Indexed as: A.C. v. Youthdale Treatment Centres (CFSA s.124)

1A.C. (the “Child”), made an application to the Child and Family Services Review Board (the “Board”) to review her April 8, 2015, emergency admission to the Secure Treatment Program at Youthdale Treatment Centre. The Child took the position that the statutory criteria (a) (b) and (e) for emergency admission contained in subsection 124(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (the “Act”) were not met at the time of her admission. The local Children’s Aid Society (the “Society”) sought her admission to the secure program because of her absences from her foster home placement and her high risk behaviours in the community.

2The Board was not satisfied that, at the time of the Child’s admission, criterion (a), (b), and (e) were met as required in subsection 124(2). For that reason the Board granted the application for her release on April 14, 2015. The Board’s reasons address criteria 124 (2) (a) because the Board finds that the Child did not have a mental disorder as defined by the Act, and therefore criterion b) and e) do not apply as they require as part of their operation that the child has a mental disorder. The Child conceded criterion (c) and (d) of the Act.

BACKGROUND

3The Child is fourteen years old and she was placed in a foster home on February 12, 2015. She was sexually assaulted in 2012 and the mother testified that her behaviour became “unpredictable” and her mood fluctuated sometimes up and sometimes down after the assault.

4The mother stated that the Child did not want to live at home and follow the rules. She was skipping school, superficially cutting herself, hitting her younger brother and she had angry outbursts.

5The Child contacted the Society for assistance after an altercation involving her father. This resulted in her placement at a “mixed modality” facility, which is a short term treatment home with a foster mother and Child and Youth Worker staff.

6The Child told her Society Children’s Worker (“Children’s Worker”) that she did not like the placement and she ran away on four occasions from the foster home. Each absence was for approximately two days during which she engaged in risky behaviours in the community. The mother had seen marks on the Child’s neck and arm and she believed that her daughter was “high or intoxicated” on one occasion when she met her in the community while the Child was in the Society’s care. The Child had not engaged in running behaviours while she lived with her parents.

7After the incident with her father the Child was taken by the Society’s Family Worker (“Family Worker”) to Hospital “A” where she was prescribed Lorazepam which she refused to take. The Child was hospitalized at Hospital “B” after one of her absences and she attended Hospital “C” on an outpatient basis. None of the hospitals admitted the Child for mental health care. She had been previously admitted to the secure facility on October 8, 2014 for three weeks, and she told her Children’s Worker that she did not wish to return to the secure facility.

ANALYSIS

8Section 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).

9Section 124(2) sets out the criteria all of which must be met at the time of admission:

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 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

10The Board must decide on a balance of probabilities whether each of the relevant criteria was met at the time of admission.

Criterion (a): the child has a mental disorder

11Counsel for the secure facility moved to submit two documents, “Reasonable Grounds For Admission” and the “Admission Summary” into evidence without the admitting psychiatrist or another psychiatrist from the facility to explain the medical content and relevance. He also submitted that the best interests of the child are paramount under the Act, therefore, the documents should be received by the Board and given the appropriate weight, without being tendered through a psychiatrist.

12Counsel for the Child objected. He submitted that to allow this evidence would violate the Child’s right to liberty under the Charter because she would have been denied the ability to test the evidence through cross examination and thus been denied due process, contrary to the principles of fundamental justice.

13The Board indicated its flexibility in accommodating the timing of testimony from the admitting psychiatrist or an alternative psychiatrist; however, Counsel for the facility declined to call any of the psychiatrists at the secure facility as a witness.

14It is the secure facility’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 psychiatric assessment about the existence of the criteria as a pre-requisite to admission and who can assist the Board in making a determination if the criterion (a) has been met.

15The Board is satisfied that where the physical liberty of a child is at stake, that child should be accorded a high level of procedural fairness and due process. The principles of fundamental justice which includes procedural fairness and the duty of procedural fairness standing alone would dictate that the Child should be given the option of testing the evidence of the person responsible for depriving her of her liberty.

16In accordance with its numerous precedents, the Board ruled that the “Reasonable Grounds For Admission” and the “Admission Summary” of the admitting psychiatrist would not be entered into evidence unless tendered through the admitting psychiatrist or an alternative psychiatrist to give the Child the opportunity to test the evidence through cross-examination. S.I. v. Youthdale Treatment Centres (CFSA s.124), 2010 CFSRB 30 and R.M. v. Youthdale Treatment Centres (CFSA s.124), 2012 CFSRB 8.

17The secure facility did not provide any psychiatric or behavioural evidence concerning the Child and her admittance. It was the mother’s evidence that the home was stressful and both parents were frustrated and found it hard to handle their daughter. The mother stated that the Child’s moods became unstable in 2012 after she was assaulted. She described her daughter as defiant, violent and unpredictable. She also stated that the Child had sudden mood changes and the Child had contacted the Society for assistance. The mother believed that the Child suffered from borderline post-traumatic stress disorder; however, no medical evidence was presented to substantiate this.

18The Family Worker testified that during her first meeting with the Child on January 26, 2015 she took the Child to Hospital “A” because she had complained that her father had grabbed her hair, pulled her off her bed and pulled her to the floor. The Family Worker reported that the Child had destroyed property and she was failing most of her classes at school. She also testified that the Child’s mother had reported to her that a lighter was found in her daughter’s room.

19The Children’s Worker testified that the Child did not like her foster mother or the placement which had been provided by the Society. She ran away with another peer for a couple of nights the last weekend in February, 2015 after which she was taken to Hospital “B” because she passed out at her friend’s boyfriend’s home after drinking Pepsi. The Child reported that when she woke up some of the clothing that she had been wearing was missing. She had no recollection of the events that had transpired and she complained of stomach pains for which she was hospitalized.

20The Children’s Worker testified that the foster mother took the Child to Hospital “C” because the Child told staff that she had suicidal thoughts in the middle of March. She was not hospitalized and she returned to the treatment foster home. The Children’s Worker also testified that the Child was prescribed Abilify and HIV medication which she refused to take.

21The Child allegedly threatened to stab another resident at the home during an altercation and she admitted to smoking Marijuana and cigarettes. The Children’s Worker testified that the mother and the Child’s school reported to her that the Child posted inappropriate messages on the internet, regarding drinking and smoking. She had not seen the postings. The foster mother had also reported that she found a wrapped steak knife which she believed the Child was planning to take to school. The Child did not take the knife out of the home. As a result of this incident the Child was placed at “TYRS” for a week during which the placement at the secure facility was arranged. Except for a very brief period that the Child went missing, the placement at “TYRS” was uneventful. The Child informed the workers that she did not want to go back to the locked facility. Despite this, the Child was removed from “TYRS” and taken to the secure facility. During the journey she was aggressive in the car, banging and kicking and she tried to open the car door on the highway.

22The Children’s Worker testified that an appropriate treatment facility to address the Child’s need for counselling was being sought and referrals to two treatment settings were completed. The Society had also identified two outpatient services for the Child and her parents; however, the services had not commenced due to the instability of the Child’s living arrangement.

23The Act states:

s.112 “mental disorder” means a substantial disorder of emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgments.

24Evidence of a diagnosis of mental illness was not placed before the Board to explain the Child’s emergency admittance to the facility. None of the secure unit psychiatrists were available to testify to the medical and/or behavioural evidence which may have indicated that the Child’s emotional processes, thought or cognition were grossly impaired as was her capacity to make reasoned judgments.

25The Child’s Society Workers testified that the Child ran away from her placement four times and was missing for two days on each occasion. She stayed with her friend, with a family friend and with unknown persons, thereby placing herself at risk in the community. She had been in a physical altercation with her father and she fought with her brother. Allegedly, she had threatened to hurt a peer with a knife and she posted inappropriate messages on the internet. The Child had also engaged in superficially cutting herself for which no medical attention was required and she admitted to smoking Marijuana and cigarettes. The support of one-to-one staffing at the group home had been instituted on one occasion but this was discontinued as it proved to be unsuccessful.

26Since the Child disliked her foster mother and the placement was unsuccessful, the Society had identified two rural treatment placement options, prior to placing her in the secure facility. The Child was waitlisted for those two facilities.

27The Board heard evidence that the Child contacted the Society for help to leave a difficult home environment and she was placed in a mixed modality home. She ran away repeatedly from her placement because she disliked her foster mother and the home. During these runs, she made poor social decisions while she was in the community. Although services to help the Child with issues surrounding past trauma had been identified, they have not commenced due to her unstable living arrangement. A psychiatric evaluation of the Child has not been completed and the locked facility did not present any evidence of mental health or behavioural concerns relating to the Child’s admission. Further, the Child attended three hospitals in the recent past and none of these attendances resulted in a mental health admission.

28The behavioural evidence presented did not demonstrate that the Child had a substantial disorder of her thought or cognition which grossly impaired her capacity to make reasoned judgements at the time of her admission to the secure unit. The Board found that Criterion 124 (2) (a) was not met and the Child did not have a mental disorder as defined by the Act. Criterion (b) and (e) do not apply as they require as part of their operation that the child has a mental disorder.

CONCLUSION

29Pursuant to section 124(13) of the Act, the Board, having satisfied itself that criteria (a), (b), and (e) in subsections 124(2) had not been met, released the Child on April 14, 2015.

CONFIDENTIALITY ORDER

30Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings, except with an order of the Court or the Board, as appropriate.

JOHN F. SPEKKENS

_____________________

John F. Spekkens

Presiding Member

LORNA KING

_____________________

Lorna King

Board Member