CHILD AND FAMILY SERVICES REVIEW BOARD

R.S.P.

v.

Youthdale Treatment Centres

REASONS FOR DECISION

Date: January 6, 2017

Citation: 2017 CFSRB 2

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

INTRODUCTION

1On December 21, 2016, the Applicant, (the “Child”), made an application to the Child and Family Services Review Board (the “Board”) to review her December 14, 2016 emergency admission to the Secure Treatment Program at Youthdale Treatment Centre (“Youthdale”).

2At the hearing, 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.

3The Child’s caseworker, [ ] an employee of the Children’s Aid Society of [ ] (“CAST”), sought her admission to the secure program because of the Child’s escalating behaviors while in a group home that had led to admissions to two hospitals prior to her admission to Youthdale.

4During the course of the hearing, the Board heard from Dr. [ ], the admitting psychiatrist at Youthdale who had interviewed the Child for 20-25 minutes at the time of admission, and a child and youth worker employed by CAST on behalf of the Respondent who did not have personal knowledge or experience working with the Child. The Child elected not to call any evidence.

5On December 24, 2016, following a hearing into the matter, and for the reasons that follow, the Board granted the application by the Child for her release as the Board was not satisfied that, at the time of the Child’s admission, the criteria under subsection 124(2), specifically criteria (b) and (e), had been met.

BACKGROUND

6The Child was [ ] years old at the time of her admission to Youthdale and was transferred there from one hospital after a brief stay at another local hospital. She was admitted to the first hospital on December [ ], 2016 from her group home because of escalating behavior including aggressive behavior toward staff and threats to a peer.

7The Child is a Society Ward of CAST and has been in care since 2014. She has been in several placements including a foster home and a couple of group homes since she came into care. Between May 2014, when she came into care, and June 2015, when she was placed at Youthdale on a previous occasion, the Child had resided in four foster homes, one group home and briefly in a kinship placement with her maternal grandparents. With the exception of one of the foster placements, which lasted from approximately May of 2014 until February of 2015, the other placements lasted between a couple of weeks and a month. The group home from which she was transferred most recently to a hospital was unable to manage her behavior. CAST is currently faced with making a permanent plan for the Child and this is believed to be a recent stressor for the Child.

8The Admission Summary prepared by Dr. [ ] described the Child’s recent behaviors preceding her admissions to hospital and Youthdale. This behavior included targeting a peer in the group home, ripping things off the walls in the group home, being physically and verbally abusive to staff – kicking and punching them. Staff restrained her and police and paramedics came to the group home and escorted her to the hospital on December [ ], 2016 and she was admitted.

9The Summary also included reference to the Child’s previous hospital admissions due to somatic complaints that were found to be without any basis, self-harm leading to up to 20 restraints, having injected herself with an EpiPen and attempted to drink the contents of the EpiPen and smeared peanut butter on herself despite her allergy to nuts.

10The Board did not hear any first hand evidence from any witness who knew the Child well or who had interacted with her or observed her behavior prior to her admission to Youthdale.

ANALYSIS

The Law

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.

13Section 112 of the Act defines “mental disorder” in the following way:

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

14The Board must decide whether each of the relevant criteria was met at the time of admission on a balance of probabilities.

Criterion (a): the Child has a mental disorder

15Dr. [ ] stated in the Emergency Admission form that the Child had a mental disorder that is a substantial disorder of emotional and thought processes as evidenced by the Child’s aggressive behavior toward staff in the group home, threatening a peer and the EpiPen and peanut butter smearing incidents. In the Mental Status Examination section of the Admission Summary, Dr. [ ] diagnosed the Child has suffering from Post-Traumatic Stress Disorder (“PTSD”) without explanation as to specific triggering incidents. However, the hospital Discharge Summary noted a possible link to the death of the Child’s brother who was murdered when she was [ ] years old.

16The Discharge Summary from the Child’s recent hospital stay further stated that the Child had no primary mental illness but suffered from a “disorganized attachment style stemming from early life attachment difficulties.” It described the Child’s behaviour as oppositional rather than indicative of a primary mental illness.

17Dr. [ ] stated in her testimony that on the basis of reviewing the documents and her impressions of the Child, she believed that the Child had an attachment disorder and PTSD. She stated that she arrived at these conclusions based on the reports of the Child’s behaviours that she received from the CAST caseworker and from the Youthdale Crisis Support Unit team’s report. These behaviours were apparently severe enough to warrant numerous physical restraints at the group home as the result of the Child’s aggressive behaviour and her attempts to harm herself.

18The Board accepts that, at the time of the Child’s admission, Dr. [ ] concluded that information reported by others portrayed the Child as exhibiting an ongoing pattern of aggression and self-harm that had been escalating in multiple domains in addition to not caring for herself. She was exhibiting extreme unhappiness, and was disconnected from the people in the environment of the group home. Some of the same patterns of behaviour were reported in the Hospital Discharge Summary. All of these reports established that the Child has a substantial disorder of her thought and emotional processes. There is no suggestion that Dr. [ ] observed or interpreted any reports to indicate any disorder in the Child’s cognition.

19The Board, therefore, finds that, although there was some disagreement regarding the specific nature of the Child’s disorder, there is sufficient evidence before it to conclude that the Child had a mental disorder within the meaning of the Act and that paragraph (a) of s.124(2) has been satisfied.

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 herself or others

20During her testimony, Dr. [ ] reviewed the Child’s recent history in the group home and at the hospital. She cited a number of examples of reported information that supported criterion (b). These related to the Child’s aggressive behavior directed at staff that included punching and kicking and threats to a peer in the home. Examples of attempts at self-harm included the EpiPen incidents and smearing peanut butter on herself.

21Dr. [ ] stated that the Child was doing dangerous things that could harm others and herself. However, she did not know whether anyone, including the Child, had suffered an injury or harm as a result of the Child’s behavior. The Child had suffered an injury to her thumb. However, the documentary record suggests that this was an injury sustained during a physical restraint. Dr. [ ] had not witnessed any of the incidents reported nor had she any knowledge about the reasons for the Child’s behavior or the context in which any of the incidents occurred.

22Dr. [ ].’s testimony was based on reports she had received orally from the caseworker from CAST who had made the application to Youthdale and the reports from the hospital. At best, this information was second hand information that could not be tested. Furthermore, there was no supporting documentation, such as case notes made by group home staff, incident reports, or serious occurrence reports, to suggest that anyone, including the Child, had suffered any harm as the result of the Child’s behavior. Such documentation is part of the regular reporting requirements for children in care and residing in group homes.

23The Board did not hear from any other witnesses with regard to criterion (b). There was no first hand evidence presented to support any intent on the part of the Child to harm anyone including herself; no evidence to explain any of the incidents cited and the circumstances under which they occurred and no evidence that any harm had been caused to anyone including the Child, with the exception of the injury to her thumb. In addition, the Respondent did not lead any evidence to support a case that the Child’s behaviors were the result of the disorders identified at the time of her admission to Youthdale.

24While there is no question that the Child’s behaviour in the group home prior to admission was difficult to manage and concerning to the extent that it led to hospitalization, the Respondent has not established on a balance of probabilities that the alleged threats of harm to others made by the Child, by way of conduct or words, and the alleged attempts to cause harm to others, were in fact threats to cause harm, attempts to do the same or substantial, in nature. Similarly, the Respondent has not established that the reports of the incidents described as self-harming met the test that they were substantial in nature or caused the Child harm. Accordingly, the Board is not persuaded that criterion (b) was met at the time of admission.

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

25As criteria (c) and (d) were not contested for the purposes of the hearing, these reasons will not address them.

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

26Neither the attending psychiatrist nor the worker from CAST who testified briefly were aware if the CAST caseworker who made the application had considered and contacted other service providers to explore alternative and less restrictive placement options for the Child. The written submissions indicated that the Child had done well in a previous foster placement although this placement was not without incident. Comments in the hospital reports as summarized in the Youthdale Intake Form were unclear with regard to the appropriateness of a treatment group home placement as compared with a foster placement. The Hospital Discharge Summary commented on the Child’s relationship with her birth mother as well as a family friend referred to as aunt as protective factors suggesting that a family like setting had the potential to be an appropriate and successful option.

27The information available to the Board suggested that a family like setting with additional supports might be an appropriate option but no evidence was led that options such as a kin placement with supports or a treatment foster home had been explored. Nor was any evidence led that the Respondent had explored small treatment group homes located close to family. The Hospital Discharge Summary included a number of clear statements that group or institutional settings, including settings such as Youthdale, were not recommended.

[…] if [the Child] continues to live in institutional settings, […] her oppositional behavior is likely to continue and may worsen or become entrenched […] we recommend that she be moved out of group homes and into a foster home setting or back to her family as soon as possible for her future well-being and safety […]

28The Hospital Discharge Summary prepared by the psychiatrist commented on the Child’s need for a stable, long term program to help her gain a treatment connection especially given her attachment issues. The same psychiatrist was not prepared for the Child to be transferred to Youthdale and it was reported that the Child could have stayed in hospital for another week. This would have given the CAST caseworker additional time to explore more appropriate options as recommended. However, the Respondent did not provide any evidence that this was done.

29The Board did not hear any testimony regarding the efforts made to explore alternative treatment options for the Child nor was the case made that there were no less restrictive methods of providing treatment appropriate for the Child’s alleged mental disorder. The Board is not satisfied that appropriate services for the Child in a less intrusive setting, based on the Child’s needs and the recommendations made by the psychiatrist at the hospital who stated in the Discharge Summary that he felt that CAST was not following these recommendations, were investigated.

30Section 124 is contained in Part VI of the Act in the section entitled Extraordinary Measures. Extraordinary circumstances must exist for a child to be placed on an emergency basis in a secure treatment unit. The right to review the placement before the Board is a significant safeguard and one that 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.

31The test to be met under section 124(2)(e) of the Act is not whether another placement is available but rather whether another less restrictive method of providing treatment is appropriate. This is an important distinction. The extraordinary measure of admitting a child to a locked secure treatment facility is not to be viewed as a placement option, but rather, it is to be considered and used only in cases where, having looked at all other less restrictive treatment methods, it is determined that none of them have been or would be appropriate to treat the Child’s mental disorder in the circumstances.

32In the circumstances of this application, the Board is not satisfied that less restrictive treatment alternatives have been considered and found to be inappropriate. Accordingly, the Board concludes that the requirements of criterion (e) were not met at the time of admission.

CONCLUSION

33Pursuant to section 124(13) of the Act, the Board satisfied itself that all five criteria in subsection 124(2) were not met, and the Board ordered the release of the Child on December 24, 2016.

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.