C.L. v. Youthdale Treatment Centres, 2015 CFSRB 51

CHILD AND FAMILY SERVICES REVIEW BOARD

C.L.

v.

Youthdale Treatment Centres

REASONS FOR DECISION

Date: November 10, 2015

Citation: 2015 CFSRB 51

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

INTRODUCTION

1C.L. (The “Child”) made an application to the Child and Family Services Review Board (the “Board”) to review his October 22, 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 his admission to the secure program, because of the Child’s alleged physically aggressive behaviours and his threats to harm himself.

2The Board was not satisfied that, at the time of the Child’s admission, criterion (a) was met as required in subsection 124(2) of the Act. For that reason, the Board granted the application for his release on October 31, 2015. The Board’s reasons will address criterion 124 (2) (a), because in order to satisfy criteria (b) and (e), a finding of a mental disorder must first be met for criterion (a). The Child conceded criteria (c) and (d) for the purposes of the hearing.

Preliminary Issues

3Counsel for the facility advised that the admitting psychiatrist was not available at the facility nor could she attend the hearing by telephone to provide evidence. She argued that another psychiatrist who had been involved in the prioritization of the Child's admittance could provide information to the Board on the Child's mental disorder as she was familiar with the evidence.

4Counsel for the Child indicated that she would object to the admission into evidence, of the “Emergency Admission to Secure Treatment Program” and the "Admission Summary" unless the authoring psychiatrist was available to be cross-examined. Counsel also stated that testing the evidence through cross-examination to ensure the Child’s liberty rights was imperative, and in keeping with the Board's case law.

5Counsel for the facility argued that since the admitting psychiatrist was unavailable, and a psychiatrist from the pre-admission team was available to give clinical evidence, the Board should admit the documents in question and give them the appropriate weight.

6The Act places the evidentiary burden on the facility to establish that the five criteria for admission are met. The onus is on facility to call appropriate witnesses to present their evidence, and not on the Board or the Child to solicit this evidence. The admissibility of documentary evidence in the absence of the author of the documents is clarified in S.I v. Youthdale Treatment Centres (CFSA s.124), 2010 as quoted 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)

7The Board ruled in that case, that the documents must be tendered into evidence by the author or a person with knowledge of the documents to ensure that the Child has the opportunity to test the evidence through cross-examination. The Child’s liberty interest is directly impacted by the documents and, given the best interests of the Child is the paramount principle under the Act, [s. 1 (2)], the procedural safeguards in the Act for the Child [ss. 114, 115 and 124] and the extraordinary nature of the secure treatment provisions, it would be procedurally unfair to permit the introduction of the very evidence that forms the reasons for the loss of his liberty, without permitting the testing of that evidence through cross-examination. Adopting this reasoning, the Board ruled that the psychiatrist involved in the Child's admission to the secure facility or in the preparation of his documents must tender the documents into evidence, to give the Child the opportunity to test the evidence.

BACKGROUND

8The Child is fourteen years old and he entered into the care of the Society on June 4, 2008 under a voluntary Care Agreement. He became a Crown Ward on January 27, 2011. He has no contact with his biological parents and 3 or 4 of his older siblings but he has periodic contact with two younger siblings.

9The Child suffered ill-treatment when he lived with his mother and step father. He was emotionally and physically abused while in their care, and he witnessed his mother being assaulted and physically injured by his step father. The Child's early years were spent in a home where he was neglected and where he did not receive appropriate medical care. He saw drug and alcohol use by his parents and he lived in an unstable, violent household where he was beaten and locked up by his step father. He was not treated the same as his half siblings and often he was excluded.

10The Society reported that the Child has outbursts when he did not get his own way or when he was told "no". He found it difficult to calm himself and to see "reason" from another's point of view. When escalated, the society alleges that the Child cannot follow directions and he can become aggressive and threatening. In July 2015, he had been screened for admission to the secure unit. However, this was abandoned as a decision was made that less restrictive options were available and the Child continued to live with his foster parents with increased supports in the home.

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 criterion was met at the time of admission on the balance of probabilities.

Criterion (a): the child has a mental disorder

14The staff psychiatrist testified that she had participated in a pre-admittance discussion of the Child on October 19 or 20, 2015. She had no involvement in the Child's admission to the secure facility or in the preparation of his documents. However, she testified that in her professional opinion, the Child struggles with emotional regulation and he has mental and emotional difficulties.

15She testified that he had disorders to be investigated, which included anxiety, post traumatic stress disorder, oppositional defiant disorder, underlying neurological disorder and possible foetal alcohol syndrome. The psychiatrist admitted that she had not spoken to the Child's doctors or his care givers prior to his admission and she did not have any involvement with the Child during his admission to the unit.

16She conceded that this most probably would not place her in a position to provide a diagnosis of the Child's mental health issues on October 22, 2015, when he was admitted.

17The Society's Children Worker A testified that the Child had been placed in nineteen different placements (including two kin placements one with a cousin and one with an uncle) since he came into the Society's care. The majority of these placements broke down because of the Child's behaviour. She testified that he yelled, swore, banged walls and would not take directions. He was openly defiant and sometimes he bullied others. When he did not get what he wanted, he acted out and threatened to harm himself. She testified that he once drank laundry detergent, superficially cut himself with an ice skate and the arm of his glasses and threatened to run into the street during the last six months. He also wrapped the spiral binding from a note book around his neck in an attempt to harm himself. She noted that he displayed signs of anxiety and is easily triggered when he is nervous.

18He was referred to hospital A, in September 2015 for an assessment with a psychiatrist. The psychiatrist did not make a diagnosis of mental illness and concluded that the strategies that were in place to manage the Child's behaviours were appropriate. Further, he reversed the diagnosis of Oppositional Defiant Disorder which had been made by the Child's pediatrician.

19Between March and July, 2015 the Child had a one-to-one worker to assist with his peer interactions and to help with problem solving. Worker A reported that the Child had difficulties in school and after an incident when he refused to give up his phone, he left his classroom. He was moved from his long term placement because of his intimidating and threatening behaviours and he threatened to kill himself as he wanted to return to his previous placement. He refused to get out of the worker's truck at the new placement while screaming and yelling and he subsequently broke glassware at the home and refused schooling.

20The Society Worker B, testified that she began working with the Child two weeks ago. He was refusing to stay at his latest placement and had smashed glass against the wall and paced up and down for four hours. He had been moved to this out of town emergency placement because he had an altercation with another peer. He became very upset to be away from his uncle and his hometown and used the arm of his glasses to superficially cut his wrist. No medical treatment was necessary.

21He was involuntarily admitted to hospital B, under the Mental Health Act, on October 16, 2015. He said he did not want to miss his Halloween visit with his uncle and he became very upset to be in an out of town hospital far away from his family and his community. He wanted to go to hospital A, in his hometown so that the scheduled visit with his uncle could take place but because he was living outside of the catchment area for Hospital A, the worker testified that she was told that the Hospital could not accommodate the request to transfer him in an ambulance.

22The Child's behavior became escalated and he had to be restrained and sedated. The next day he continued to be upset and was unable to calm himself and again he was sedated and restrained. He was transferred to the secure unit and the Society testified that it did not receive any discharge papers or psychiatric assessments or reports from the hospital.

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.

24The psychiatrist testified that in her professional opinion, the Child has mental and emotional difficulties. She also opined that the Child had undiagnosed and untreated mental health issues and a significant mood disorder. However, she conceded that her diagnosis was as a result of information from the crisis team and not from meeting the Child and assessing him first hand or from consultation with any of his health care professionals.

25The workers testified that the Child's behavior became easily escalated and that he acted out and found it difficult to calm himself. He was involuntarily admitted to hospital B in October and although he had been under the care of two psychiatrists, no mental illness had been diagnosed and his medication trials were discontinued because the medications did not seem to help.

26The Board did not receive any first hand medical evidence from the facility regarding the Child’s mental illness and it does not accept the behavioural evidence of Workers A and B that the actions of the Child demonstrated a substantial disorder of his emotional and thought processes which grossly impaired his capacity to make reasoned judgements. The Board heard evidence that the Child’s thought and emotional processes were impaired and that he made poor social decisions at school and at home. However his emotional dysregulation and volatile behaviours were not diagnosed by his treating psychiatrists and presented to the Board as evidence of a mental disorder at the time of his admission to the facility.

27The recommendation had been made to place the Child in a home where he was the only Child. As well, one of his foster homes was willing to take him back in the summer if appropriate supports were put in place. The diagnosis of ODD was reversed and the Child's medications ([ ], [ ], [ ] and [ ]) were discontinued by his treating physicians. Following the first referral to Y, which was abandoned in favour of a return to the foster family with additional supports, the Child was evaluated by a psychiatrist in his home community in September 2015, approximately one month prior to his admission into Youthdale. The evidence of Worker A was that the psychiatrist diagnosed no mental health illnesses at that time and he did not suggest or recommend treatment at a secure facility.

28The Board finds that there was not sufficient evidence before it to conclude that the Child had a mental disorder within the meaning of the Act. The facility did not provide the evidence of the admitting psychiatrist or any medical diagnosis or firsthand evidence that the Child had a mental disorder within the meaning of the Act, which states that the mental disorder must be of the of the emotional processes, thought or cognition, and it must grossly impair the Child's capacity to make reasoned judgements.

29The behavioural evidence before the Board indicated that the Child was screened for the secure facility in the summer when his placement broke down but was withdrawn when his foster mother took him back into her home. When that placement broke down for a second time, he was once again screened for the locked unit of the facility.

30The behavioural evidence before the Board is that the Child became dysregulated upon being placed outside of his home community where he could not see his uncle, one of his few supporting family members. As a Child with a traumatic and chaotic history, it is understandable that he is attached to his uncle and that it was upsetting for him to miss his Halloween visit with this relative.

31The Board heard evidence of the Child's dysregulation and his lack of stability and of the recommendation that he be placed alone in a home. It also heard evidence that he had lived in one foster placement for two years and that placement was supportive of him and with extra supports it had managed his behaviours.

32No medical evidence was presented to the Board to indicate that the Child had a mental disorder and the behavioural evidence was not sufficient to indicate a substantial disorder of the Child's emotional processes, thought or cognition which grossly impaired his capacity to make reasoned judgements.

CONCLUSION

33Pursuant to section 124(13) of the Act, the Board, having satisfied itself that criterion (a) in subsections 124(2) has not been met, released the Child on October 31, 2015.

CONFIDENTIALITY ORDER

34Pursuant 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.