AH v. Syl Apps Youth Centre, 2024 CFSRB 110

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AH Applicant

-and-

Syl Apps Youth Centre Respondent

DECISION

Adjudicators: Tracy Foster, Louise Charette, Martina Dwyer Date: October 16, 2024 Citation: 2024 CFSRB 110 Indexed As: AH v Syl Apps Youth Centre (CYFSA s.171)

APPEARANCES

AH, Applicant Jim Pietrangelo, Counsel Christine Doucet, Co-Counsel

Syl Apps Youth Centre, Respondent John Hunter, Counsel

INTRODUCTION

1On October 3, 2024, the Applicant (the "Child") made an application to the Child and Family Services Review Board ("CFSRB") to review her October 2, 2024, emergency admission to the Secure Treatment Program at Syl Apps Youth Centre ("SAYC"). A hearing was held by videoconference on October 8, 2024.

2At the hearing, the Child took the position that none of the statutory criteria for emergency admission to secure treatment in subsection 171(2) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched. 1 (the "Act") were met at the time of her admission. The Respondent, SAYC, submitted that all five criteria were met.

3The witnesses for SAYC were the Child's mother, Dr. Nathan Scharf, a Psychiatrist at SAYC and Anna Walas, a Clinical Care Coordinator and a Registered Social Worker at SAYC. Additionally, Detective Constable Giacomo Brunino from the Peel Regional Police was a witness. The Child did not call any evidence.

4The CFSRB was not satisfied that at the time of the Child's admission, criterion (a) was met as required in subsection 171(2). The CFSRB granted the application for the Child's release on October 8, 2024, for the reasons that follow.

OBSERVERS

5With the consent of both parties and the CFSRB, an articling student, Brianna Rowe, with the Office of the Children's Lawyer ("OCL"), observed the hearing. Lawyers Rachel Toope and Katelyn MacFadyen from the Respondent's Legal Firm, Borden Ladner Gervais LLP, also observed the hearing.

BACKGROUND

6The Child is 12 years old. She lived with her father from around November 2023 to in or around June 2024. After this, she lived with her mother and her younger brother. She also has a sister who resides with other family members. The mother stated that during the seven months the Child lived with her father, she saw the Child three times.

7The Child's mother sought the Child's admission to SAYC because of the Child's reluctance to engage in treatment. The mother also believed that the Child would harm her, her younger brother as well as herself. The mother also testified that the Child threatened suicide and that she engaged in self-harming behaviours. The Child's mother testified that the Child had threatened to kill her; however, she then stated that the Child told her she would not kill her as she was her mother. The mother also testified that when the Child did not get her way, she would say that she would kill herself, and she did this daily. The mother stated that she did not take the Child to see her Family Physician on these instances. She said she wanted the Child somewhere where she would be safe and would not have the option of refusing treatment. However, she also testified that she had hired legal counsel to submit an Application to the court for an Order for treatment and felt that an emergency admission was proper because she felt that if the Child was notified of the Application, it was likely that she would flee.

8The Child was not notified of the emergency application to SAYC. It was arranged by the mother, SAYC and the Peel Police Department to pick up the Child and bring her to SAYC. The Child cried at the moment when the police arrived; she followed the police officer's instructions and was admitted without her consent to SAYC.

THE LAW

9Section 171(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 171(2)(a) to (e).

10Section 171(2) sets out the criteria:

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.

ANALYSIS

11In deciding this application, we must determine whether each of the relevant criteria in subsection 171(2) of the Act was met at the time of admission. This determination is made on a balance of probabilities. If any one of the criteria was not met at the time of admission, we must order the Child released.

12We conclude that all criteria a, b, c, d and e were not met at the time of admission.

Reason for Emergency Admission to SAYC's Secure Treatment Program

13Testimony was provided by Anna Walas that a separate application for involuntary, court-ordered admission to secure treatment at SAYC for the Child was made by the mother in April 2024 based on a recommendation by Peel Children's Aid Society. ("CAS"). The Child was placed on the waiting list.

14Further testimony by Anna Walas indicated that SAYC contacted the Child's mother on September 11, 2024 advising that a bed was available for the Child; however, this admission would need to go through a court process, which could take up to three weeks. Additionally, the Child would be assigned a lawyer through the OCL who would advise her a submission had been made. Anna Walas testified that the mother and CAS raised concerns that the Child would flee and/or hurt herself or her mother if she was made aware of the Application.

15Anna Walas indicated that at that time, discussion ensued about an Emergency Secure Treatment admission to keep the child at the facility long enough for the initial long-term admission application court process to take place. The Child's mother would need to have the application filed through a lawyer. Anna Walas testified that because there were safety and flight risk concerns also raised, discussions took place with Peel Regional Police ("Peel Police") about transporting the Child to SAYC.

16The OCL submitted that an emergency placement in a secure facility under the Act is an "Extraordinary Measure"; a last resort. The OCL further argued that the emergency admission appears to have been a measure to "hold" the Child until the long-term application could proceed, in the instance that the Child "might" react. The OCL takes the position that emergency admission was never set up as a segue into a long-term application process.

17The CFSRB accepted and agreed with the submissions of the OCL.

Criterion (a): the Child has a mental disorder

18The mother testified that the Child had behavioural difficulties since she was 11. She was hospitalized twice; however, the mother could not recall the dates with certainty. The mother stated that after each hospitalization, the Child returned to having behavioural difficulties one week after her return home.

19The mother testified that the Child's behavioural difficulties include using profanity, pushing, punching, and pulling her mother's hair. On one occasion described by the mother, the Child recently hit her younger brother, leaving a mark on his arm. The Child threatened on multiple occasions that she was going to hit her younger brother. The mother stated that she called the CAS, but, according to the mother, they did nothing. The mother stated that the Child was hiding sharp objects in her room, such as kitchen knives and razor blades from a pencil sharpener. She had cut herself on one occasion. However, the mother could not recall when this occurred, only sometime in the summer of 2024. According to the mother, the Child was flagged by the police for human trafficking. The mother also stated that the Child would sneak out during the night and abuse drugs. She was vague in her testimony regarding any details concerning this alleged behaviour and the dates or times that this behaviour occurred.

20Counsel for SAYC confirmed the dates that the Child was hospitalized as December 2023, and March 2024. These admissions occurred when the Child was in the care of her father, not her mother. The mother stated that one of the Child's admissions was when she cut herself; however, she required no treatment for this. The Child and her family have received CAS services. However, the mother stated that the Child refused all services. The mother also stated that the Child spoke to one social worker more than the other. At other times, the mother stated that the CAS did nothing.

21The CFSRB found that the mother's testimony was often contradictory. For example, she testified to the Child resuming her problematic behaviour one week after each hospitalization when she stated she had only had contact with the Child three times during the period when she was hospitalized and staying with her father. Additionally, her recall of specific facts regarding the Child's behaviour was vague; she had to be repeatedly questioned to clarify her testimony. The CFSRB, therefore, assigned less weight to her testimony for those reasons.

22A form entitled "Immediate Needs Summary" was provided as evidence dated September 27, 2024, but it was not signed. Anna Walas signed the form during the hearing. The Psychiatrist who had assessed or treated the Child at admission did not testify. The parties were not provided with any Admission Summaries or clinical notes and records from the health care team. The Immediate Needs Summary form indicates that an SAYC Psychiatrist would complete an assessment, and a Psychiatrist and a Nurse Practitioner for medication would follow the Child.

23Anna Walas stated that the contents of the Immediate Needs Summary was a compilation of planning and information completed prior to the Child's emergency admission to SAYC. Anna Walas testified that the mother and CAS mainly authored the historical information. Anna Walas testified that a team of healthcare providers provided input in this form; however, she was the one who filled it out. There was only a reference by the mother to the Child having Attention Deficit Hyperactivity Disorder ("ADHD"). No one from CAS testified. This Immediate Needs Summary was assigned little weight as it was completed from a self-report of the mother and representatives of CAS. It also pre-dated the Child's admission.

24Dr. Nathan Scharf, the only Psychiatrist who testified, had not seen the Child at the time of admission, nor prior; he had only evaluated the Child on the date of the hearing. Dr. Scharf took the position that it was appropriate to make a diagnosis by reading the historical records. None of the historical records were placed into evidence, allowing the CFSRB to assess the weight to be given to these psychiatric records. A Safety Plan was provided in the evidence dated September 25, 2024; Dr. Scharf testified that the team of health care professionals filled this out. This pre-dated the Child's admission. It was problematic as the Safety Plan was left blank under the section of being reviewed by a Psychiatrist, and the Secure Treatment Admission Criteria was also left blank. At the admission date, there was no diagnosis, differential diagnosis or evaluation of symptomology provided in the evidence.

25Dr. Scharf testified that there is usually more than one person involved in the decision to admit a Child. He reported that in this case he had a conversation with the Director, and that he and the "team involved" in the admission process had reviewed the information available. He reported that given the "urgency" in the case because of the Child's age and history of "high risk behaviour", he was asked to review the file and he provided feedback to the Director. He reported that another Psychiatrist had made the assessment at the time of admission and that he was not directly involved in the admission process. He reported that the Director was "more directly responsible" for the Application along with the Child's legal guardian. Counsel for the Respondent noted that this Application was made by the "administrator" and that the admission would require for him to have believed on reasonable grounds that the criteria had been met. This type of emergency admission is noted at 171(2) of the Act.

26The Psychiatrist who interviewed the Child on the day of her admission did not attend the hearing. As noted in S.I. v Youthdale Treatment Centres, 2010 CFSRB 30, at paragraph 13, it is the secure treatment 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 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."

27This was problematic as the CFSRB did not hear directly from the Psychiatrist who interviewed the Child the day she was admitted to confirm the required criteria under the Act was met at the time of admission. The OCL also did not have the opportunity to cross-examine them.

28The CFSRB assigned less weight to the Psychiatrist's testimony as he did not evaluate the Child in person at the date of the admission. The Safety Plan was assigned little weight as it was not reviewed by any Psychiatrist and the Admission Criteria was left blank.

29Detective Constable Giacomo Brunino testified to the historically problematic behaviour of the Child. He provided a summary of instances; however, most were with regard to verbal domestic family disputes. He indicated that he supported the emergency admission as the mother opined that if the Child were made aware that she was going to be institutionalized, she would flee. This, in effect, would cause the Police Department to utilize resources when unnecessary, as the Child would be in a secure setting. The Detective Constable transported the Child to SAYC on the day of her admission. He testified to the emotive response of the Child crying when he arrived at her home to pick her up, and then following directions when he transported her to SAYC. The CFSRB assigned little weight to the testimony of this witness. The Detective Constable testified to some problematic behaviour that he did not personally observe. The events were related to him by others or from police records.

30The absence of the Admission Summary or any information about the presenting symptoms or diagnosis at the time of the admission was problematic in this case. There was no tested evidence from another medical or mental health professional who provided treatment for the Child at the time of admission. The mother's testimony was vague, and she herself did not have much contact with the Child for a period of seven months. Based on the limited evidence provided, it could not be established that the Child has a mental disorder as defined in the Act.

31In this case, we did not have sufficient contemporaneous evidence to convince us that the Child had a mental disorder as defined in the Act. While she was hospitalized twice, once in 2023 and once in 2024, there was a gap of several months between those hospitalizations and her admission to SAYC.

32We find, therefore, that SAYC has not established that at the time of admission, the Child had a mental disorder within the meaning of the Act. Thus, criterion (a) has not been met.

CONCLUSION

33Pursuant to section 171(13) of the Act, the CFSRB, not having satisfied itself that criterion (a) in subsection 171(2) had been met, granted the application for release of the Child on October 8, 2024.

CONFIDENTIALITY ORDER

34Pursuant to Rules 9.3 and 9.4 of the CFSRB's Rules of Procedure parties and their representatives must not use, share, discuss or disclose any CFSRB 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 CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB's proceedings, except with an order of the Court or the CFSRB, as appropriate.