C.C. v. Youthdale Treatment Centres, 2015 CFSRB 36

CHILD AND FAMILY SERVICES REVIEW BOARD

C.C.

v.

Youthdale Treatment Centres

REASON FOR DECISION

Date: August 14, 2015

Citation: 2015 CFSRB 36

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

INTRODUCTION

1The Child made an application to the Child and Family Services Review Board (the “Board”) to review his July 30, 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 his admission. The Society sought to admit the Child because of his physical and verbally aggressive behaviours and concerns that the Child might harm himself.

2From the evidence presented, the Board was not satisfied that at the time of the Child’s admission criterion (b) and criterion (e) were met as required in subsection 124(2). For that reason the Board granted the application for his release on August 6, 2015. The Board’s reasons address criteria 124 (2)(a),(b) and (e) of the Act because the Child conceded criteria (c) and (d).

Preliminary Issues

3Counsel for the Child objected to the admittance into evidence of the facilities’ Emergency Admission to Secure Treatment Program, a [Hospital] Emergency Record, a [Regional] Health Report and two [treatment residence] Psychological Assessments on the basis that it was vitally important to test the evidence through cross-examination to ensure the Child’s liberty rights. Without the authors of these documents she argued that the medical opinions contained in the documents could not be tested.

4The Board ruled that the admissibility of each document would be assessed when it was tendered and would depend in part on whether an appropriate foundation was laid by a witness with knowledge of the document and whether it was relevant.

5The Act places the evidentiary burden on the facility to establish that the five criteria for admission are met. The onus is on the facility to call appropriate witnesses to present their evidence and not on the Board or the Child to solicit this evidence. The Charter and procedural fairness implications surrounding the admissibility of documentary evidence in the absence of the author of the documents is set out in S.I. v. Youthdale Treatment Centres (CFSA s.124), 2010 CFSRB 30 (“S.I.”) . The Board adopts the reasoning in S.I. and in particular the following comments at para.13:

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.

6Counsel for the facility advised that the admitting psychiatrist was not available to be a witness at the hearing and that the Director of the Secure Unit would testify. Because the Director was not involved in and did not supervise the Admission or the preparation of the Admission Summary, the Child could not test the opinions in those important documents through the Director. Therefore, the Board did not admit the Admission Summary or the Admission Form in line with its jurisprudence including S.I. and C.M. v. Youthdale Treatment Centres (CFSA s. 124), 2014 CFSRB 1 at paragraph

7.

BACKGROUND

7The Child is [ ] years old and he has led a life filled with trauma. He was apprehended by the Society at a young age and placed in the care of his paternal grandparents. At two years old he went to live with his father.

8He witnessed an attempted suicide by his mother’s partner and was emotionally and physically abused by another of her partners at age four. He has not been in contact with his mother for the past two years but he maintains frequent contact with his father.

9The Child was placed in a treatment residential home (“treatment residence”) from February 2013 until October 2013 after which he was returned to his father. After the placement broke down, he was placed in three different foster homes between January 2014 and February 2014. These placements also broke down and he was readmitted to the treatment residence. The Society apprehended him into care on February 4, 2014. An attempt was made to place the Child in another foster home in May, 2015 but that placement broke down on the first day.

10The Society was looking for a long term permanent placement for the Child. The Youthdale Director was on the local committee and was possibly going to assess the Child in the community. He advised the Society and the committee that Youthdale’s Transitional Psychiatric Unit (TPU), a voluntary unit, could bridge the Child’s placement to a permanent placement at Youthdale’s [rural placement]. The Society and the treatment residence supported this plan and put it in motion. Three days before the scheduled move to the TPU, Youthdale advised the Society that there was no bed available at the TPU and that their Director felt that the Child’s needs should be met by the Acute Unit (non-voluntary, emergency secure treatment unit). The Child was placed at Youthdale in the Acute Unit on July 30, 2015 and commenced his application with the Board on August 3, 2015.

ANALYSIS

11Section 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).

12Section 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.

13The Board must decide whether each of the relevant criteria was met at the time of admission on the balance of probabilities.

Criterion (a): the child has a mental disorder

14The Director testified that he was involved in the Child’s case having reviewed his information in planning and prioritizing meetings prior to his admission. He testified that the Child’s guardian had safety concerns regarding his transition to a new safe living arrangement and that the Child was having temper outbursts; he was aggressive and threatening towards staff at his home, struggling with the planned move to his next residence and sad. He further testified that the Child engaged in risky self-harm behaviours.

15The Director testified that that the Child’s presenting problems were stabbing, biting, threatening his foster family with a screwdriver and he self-harmed by tying a cord around his neck. He also stated that the Child had a diagnosis of conduct and behavioural disorder which repeatedly led to the breakdown of his living arrangements. The Director cited the Child’s affective dysregulation, behavioural difficulties, and dysthymia as evidence of his mental disorder as defined by the Act.

16The Society’s Children’s Services Supervisor (“Supervisor”) testified that the Society’s attempt to place the Child in three homes had failed because of his out of control behaviours. He yelled, swore, threatened, bit, kicked, paced the hall at night and damaged property when he became escalated. The Supervisor testified that the Child was referred by a community intake organization for services and the secure facility offered the Child a placement in its voluntary program for four to six weeks. The goal of this voluntary open placement was to provide stabilization and to inform the long term treatment needs and placement for the Child.

17The Child had many serious occurrence reports and incident reports and he had been physically restrained by staff on several occasions. The Supervisor also testified that the Child had received counselling, attended day treatment at his residence and a specialized summer program in 2014. He had difficulties with transitions and he had one-to-one staffing beginning in February, 2015 after school, because of his high anxiety level and his difficulties settling and sleeping at nights. In March, 2015 he had been taken to the Hospital where he had been prescribed Seroquel to be taken as needed. A psychological report was also completed in March, 2015.

18The Residence Supervisor testified that the Child experienced “hopelessness” and he did not “try”. In February, 2015 he talked about killing himself and there was an incident when he put an extension cord around his neck. During this time he asked where he was going to live and said he wanted to go home to his father. This behaviour subsided in March and staff was able to manage his behaviours by staying with him until he went to sleep at nights. She testified that the Child’s logic was faulty and the Seroquel which had been prescribed at the hospital was discontinued after nine days because staff was unsure of the correct dosage and the Child’s behaviours seemed unchanged.

19The Residence Supervisor testified that the Child was easily triggered by his family and the uncertainty of his permanency planning as well as chaos started by other peers in the residence. He sometimes lay on the driveway to stop kids and staff from going away from the residence and he could also be triggered by a visit to the dentist or a doctor unless they were on site. On two occasions in April 2015 he stabbed staff with a pen and in May, 2015 he attempted to run away with another peer.

20The 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.

21The Director testified that in his opinion the Child had a mental disorder as demonstrated by his behaviours and thoughts. He made this assessment based on information from the crisis team, the Society, the Group Home and not from first hand observation. In his professional opinion from the collateral information, the Child had difficulties with affect regulation and when he became upset he had severe psychological arousal and loss of judgement. He believed that in high stress situations, the Child was seriously impaired and his anxiety and unhappiness placed him particularly at a high risk. The witness from the treatment residence confirmed his lack of insight and control once triggered.

22The Board heard evidence of the significant dysregulation of the Child’s thought and emotional processes which were so impaired that he was unable to attend school, he broke down multiple placements, he lay in the car park to stop residents and staff from leaving the home, he experienced difficulties falling asleep at night and made plans to run away with another peer. The Child made poor social decisions, engaged in property damage and was verbally and physically aggressive to staff. He felt hopeless and anxious about his future and he knew no boundaries when he became upset.

23The emotional dysregulation and the volatile behavioural evidence presented, demonstrated that the Child had a substantial disorder of his thoughts and emotional processes at the time of his admission to the facility which grossly impaired his capacity to make reasoned judgments.

24The Board finds that there was sufficient evidence before it to conclude that the Child had a mental disorder within the meaning of the Act.

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 or others.

25The Residence Supervisor stated that the Child had made increased threats of self-harm in February 2015. The Child had said “I want to die” and “I want to kill myself” and he had put an extension cord around his neck. Staff had intervened and removed the cord. She reported that the Child was experiencing “hopelessness” during this period and he would say “I just want to go home” and “I want my dad” and he questioned his future living arrangements by asking “where are you going to put me”. The residence increased its level of supervision to keep the Child safe and the Residence Supervisor testified that the Child’s self-harm threats decreased in March, 2015 but his level of aggressiveness was constant and he started threatening to harm others.

26The Child had behaved aggressively in the residence hurting two members of staff with a pen. One staff required medical care from a walk in clinic where the wound was taped. The incidents were not severe enough to cause serious bodily harm. While the wound from the pen was bodily harm and required taping, it did not reach the level of “serious” which calls to mind a longer term and more severe impact on one’s person.

27The Residence Supervisor testified that the Child was taken to the hospital in March, 2015 because of his aggressive and disregulated behaviours; however, he was not admitted and staff was able to keep him safe. The Director testified that the Child was struggling and inconsolable at the prospect of leaving his residence; he believed that the electrical cord incident and swallowing a piece of Lego block were attempts of serious bodily harm by the Child.

28The Board heard evidence that the Child was sad and disregulated at the prospect of moving from his home. Although, he was anxious and he was missing his father the Child’s self-harming behaviours had decreased since February 2015. The Residence Supervisor testified that his aggressive behaviours have remained constant and he threatened others; however, there was no escalation of his behaviours prior to his admittance to the secure unit. The evidence was that the Child was not looking to be run over when lying in the driveway as he knew the vehicles would stop. The Board found from the evidence presented that the Child did not cause or make substantial threats to cause serious bodily harm to himself or others.

29The Board was not satisfied that criterion (b) was met.

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

30The Child had engaged with prior treatments in a less restrictive setting in the residence. He had attended day treatment and special summer camp, play therapy and a psychiatric assessment was completed in January and February, 2015. A referral was made by a community organization for the Child to see a psychiatrist but he would not go to his family doctor to obtain a referral letter. He experiences anxiety in going to the doctor and dentist. The treatment residence had not found a solution to this but was attempting to work around it.

31The Secure Facility offered the Child treatment in its voluntary unit but abruptly changed the treatment option to the secure unit three days prior to his admission.

32Section 124 is under Part VI, Extraordinary Measures, of the Act. There must be extraordinary circumstances before a child is placed on an emergency basis in a secure treatment unit. The right to review the placement before the Board is a significant safeguard, which is in place to protect the child’s right to liberty. The admitting program has a duty to present sufficient evidence to support a finding on the balance of probabilities that on admission, a child has met the criteria set out in section 124(2) of the Act.

33The Board was not satisfied that no less restrictive method of providing treatment for the Child’s mental disorder was appropriate. A psychiatric evaluation of the Child was completed prior to admittance and the recommendations were being implemented by the treatment residence and the Society. The Board heard evidence that the Child was triggered by medical visits but he did not refuse on site treatments, he had enjoyed special camp and participated in play based therapy and staff had kept him safe during his residencies. The Society was exploring a residential placement for the Child and the request was made for assessment and stabilization in an open treatment setting to transition the Child. The secure facility made the decision to place the Child in its secure unit three days prior to his planned admission because the facility believed that the Child could not be maintained safely in an open setting despite his history of decreased self-harm and no reported escalation in his difficult behaviours prior to his admittance.

34While the Board heard evidence from the Director that the lack of a bed was not determinative, the Board is concerned about the inconsistency between the decision to place the Child in the ACU and the original decision to place him at the TPU. This is concerning because no new information was provided to the facility to suggest any escalation of behaviours by the Child, beyond the behaviours evident at the time of the decision to place him in the TPU. Further, the treatment residence and the Society were looking for a long term placement and the Board heard from their witnesses that they supported the original plan and were surprised by the change in plans. In any event, the evidence of the Residence Supervisor was that they were keeping the Child safe and had instituted measures to do so. The Board finds that the Child’s existing placement was appropriate to treat his mental disorder until a longer term placement was located.

35The Board was not satisfied that criterion (e) was met.

CONCLUSION

36Pursuant to section 124(13) of the Act, the Board, having satisfied itself that criteria (b) and (e) in subsections 124(2) have not been met, released the Child on August 6, 2015.

CONFIDENTIALITY ORDER

37Pursuant 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.