CHILD AND FAMILY SERVICES REVIEW BOARD
M.L.F.
v.
Youthdale Treatment Centres
REASONS FOR DECISION ON MERITS
Indexed as: M.L.F. v. Youthdale Treatment Centres (CFSA s.124)
INTRODUCTION
1This is an application to the Child and Family Services Review Board (“the Board”) by M.L.F., d.o.b. February […], 1996 (the “Child” or the “Applicant”), for a review of her emergency admission to the Secure Treatment Program of the Youthdale Treatment Centre, (“Youthdale”, “the facility” or “the Respondent”) pursuant to section 124(9) of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act” or the “CFSA”).
2The Board must decide whether each of the criteria set out in subsection 124 (2) of the CFSA were met, on the balance of probabilities, having regard to the best interests of the Child. The Respondent’s position was that all five criteria had been met and that the Application should therefore be denied. The Child’s position was that none of the five criteria had been met and that consequently, she should be released.
Pursuant to section 124 (13) of the Act, upon review,
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 clauses 124 (2) (a) to (e).
3The legal tests in this case are captured by the criteria as set out in the legislative provisions, as follows:
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 the 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.
4For the reasons that follow, the Board found that the Child meets all of the five criteria for admission and denied the Child’s application. These reasons also address the decisions made in relation to a motion for non-suit, brought on behalf of the Child.
BACKGROUND
5The Child is currently twelve years of age and was admitted to Youthdale on September […], 2008. The Child has been in the care of the Durham Children’s Aid Society (“CAS” or “Society”) since the age of four. She was in a treatment foster home between the ages of 6 and 11, until June 2007. As she grew older, she began engaging in some concerning behaviours and having conflict in the foster home. She and the CAS agreed that a move was appropriate in order to preserve the relationship. Subsequently, the Child was moved to [ ], a residential treatment group home which is staffed 24 hours per day.
6While at [ ] she received several types of support. She was also absent without leave “AWOL” for three days. At this time, she stayed with strangers and participated in sexual activity. This precipitated the search for another placement and a move to A., a more secure setting, with therapeutic and other supports, in March 2008. The Child saw a psychologist until March of 2008. In May of 2008, the Child’s foster father, the person she considers her father, died from cancer. This loss greatly impacted the Child. During her time at A., the self-harming behaviours, characterized predominantly by cutting and threats of suicide, increased. On September […], 2008, the Child was admitted to hospital on a Form 1 after cutting herself. Following her release from hospital the Child’s self harm continued as did her suicidal comments. The CAS pursued placement alternatives for the Child including both Youthdale and less restrictive settings.
REASONS FOR DECISIONS REGARDING THE NON-SUIT MOTION
7The Board permitted a non-suit motion by the Applicant and permitted the Applicant to reserve the right to call evidence.
8A non-suit motion is a request by a party for a finding in its favour based on the other party’s failure to make out its case. In this instance, the Applicant asked that the Board make a finding releasing her because she said the Respondent had not made out the criteria, which it was obliged to do. The Board heard and denied the non-suit motion. The background to and reasons for this decision follows.
9In emergency secure treatment cases, it is the Respondent facility that bears the onus of establishing each criteria on the balance of probabilities, thus the Respondent presents its evidence first.
10At the conclusion of the Respondent’s case, the Applicant sought permission to bring a motion for non-suit and to preserve her right to call evidence should the motion fail. The Respondent argued that the Applicant should not be permitted to bring the motion and that if the Board allowed the motion, she should not be able to call evidence.
11The Board decided to hear the non-suit motion. Contrary to the Respondent’s submission, the Board has the power to hear interlocutory motions without the notice usually required for motions under the Board’s rules. Emergency Secure Treatment applications proceed outside of the Rules’ usual procedural time lines for disclosure etc. given the statutory requirement that the child be entitled to a hearing within five days. The parties do not know the details of the case they have to meet or respond to until the day of the hearing. In any case, if the Respondent’s submission were correct, the Board would never be permitted to hear procedural or other motions as issues arose in a hearing, for example, motions relating to evidence.
12Nor does a non-suit motion represent “two kicks at the can”. In a non-suit motion, there is no weighing or assessing of merits or credibility. This is reserved to the final determination on the merits, if the motion does not succeed.
13The Board also determined that the Applicant could testify if the motion failed. That is, she did not need to elect to not call evidence, in order to bring her motion. This approach is consistent with the flexibility afforded to administrative tribunals and the approach taken by the Canadian Human Rights Tribunal in the recent decision of Fahmy v. Greater Toronto Airports Authority ( 2008 CHRT 12 ) . In addition, this is a case in which the liberty of a child is at stake. The child is the Applicant and the prospective witness identified by her Counsel. By virtue of the nature of the application, this case also involves a child who is potentially quite vulnerable - hence the evocation of the “Extraordinary Measures” provisions of the Act. It is only in extreme i.e. the most extraordinary of cases, that measures such as involuntary detention are permitted under the CFSA. Finally, the Respondent would have the opportunity to respond in the usual course to any evidence offered by the Applicant. The Board was guided in reaching this decision by the overarching principle of the best interests of the child, including the importance of the child’s participatory rights.
14The parties agreed that should the motion fail, the Board would take into account submissions on the motion, as well as any additional submissions. This would avoid undue repetition of submissions.
15The Board asked to hear submissions regarding the test or standard to be applied in a non-suit motion. The Applicant submitted that the reasonableness test applied. It appears that the Applicant was asking the Board to weigh the evidence and determine if the admission of the child was reasonable. The Respondent submitted that there must be a substantial or glaring flaw or the absence of evidence regarding one of the 5 criteria in order for the motion to succeed, in order to avoid two deliberations on the merits.
16The Board found that the standard was not one of “reasonableness”. As noted above, at the non-suit motion stage, the adjudicator is not tasked with weighing credibility or the evidence.1 The question which the Board asked itself on the non-suit motion was:
Is there some evidence, which, if believed, could lead to a finding that each of the five criteria had been met?
17On hearing the submissions of the parties, the Board concluded that there was some evidence which, if believed, could lead to a finding that each of the five criteria had been met. The Respondents led evidence on each of the five criteria. For example, the Respondent filed a detailed Admission Summary addressing the issue of mental disorder. The Respondent also called the Applicant’s child welfare worker who testified regarding the escalation of and seriousness of behaviours, harms and threats of harm, as well as the inappropriateness of less restrictive settings, given the placements and interventions tried. The Respondent called the Crisis Worker who testified regarding effectiveness and availability of treatment at the facility relating to the Applicant. This was not a case in which the Respondent failed to address any of the criteria in the evidence submitted. As such, the Board denied the Applicant’s non-suit motion and proceeded to hear the merits of the application.
REASONS FOR DECISION ON THE MERITS
ANALYSIS
Criterion (a) the child has a mental disorder.
18The Board was satisfied that the Child had a mental disorder within the meaning of the Act. A mental disorder is defined as a substantial disorder of emotional processes, thought or cognition, which grossly impairs a person’s capacity to make reasoned judgments. The evidence demonstrated that, at the time of admission, the Child had a substantial emotional processes disorder which grossly impaired her capacity to make reasoned judgments.
19The Child described feelings of numbness and emptiness and sadness which she associated with the death of her father from cancer. At least three clinicians have identified depression or mood disorder as concerns. Two clinicians involved in admission to Youthdale questioned the existence of attachment disorder and post traumatic stress disorder (among others). The Child has an early history of abuse and suspected sexual abuse. She displayed signs of depression prior to the death of her father. She has run away from one group home for three days, engaged in sexual activity in order to feel loved and become involved with high risk youth during her time away from the group home. The Child has been engaged in self-cutting behaviors for at least the three or four months preceding her admission. At one point, she wrapped a chord around her neck but decided not to go through with it. There was evidence that she told adults in her life that she cut in order to feel physical pain to counter act her lack of emotions. The Child has recently been admitted to hospital on Form 1 for cutting her arms and neck, causing extensive bleeding. Following her release from hospital the Child’s self harm continued as did her suicidal comments. The CAS pursued placement alternatives for the Child including both Youthdale and less restrictive settings.
20The Board was satisfied, on the basis of the evidence, including the thorough Admission Summary of Dr. S., the testimony of the Children’s Aid Worker, the reports and incident reports of the residential treatment homes and the testimony of the Child, that the Child had a mental disorder as defined in the CFSA.
21The Board was satisfied that criterion (a) has been met.
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, herself or another person.
22The Board was also satisfied that the Child, as a result of her mental disorder, caused and attempted to cause serious bodily harm to herself. Further, the Board was satisfied that the Child, by words, made substantial threats to cause serious bodily harm to herself.
23The Board accepted the evidence that the Child had a history of risky and acting out behaviours at an early age, prior to the death of her father. The Child testified that cutting was like an addiction: it was hard to stop. The Child had told staff at her group home and her worker, that the cutting made her feel pain, which offsets her numbness. The Board found that it was the mental disorder and not grief per se that resulted in the concerning conduct and threats.
24The Board heard evidence that the Child had cut her wrists, her neck, her abdomen and her legs and her finger in the year prior to admission. The Child admitted to cutting her arms in the three or four months prior to admission. She admitted to superficially cutting her lower abdomen and legs once. The Child required hospital medical care for her self-inflicted wounds on three occasions. On September […], 2008, the Child cut her wrists and neck with a broken light bulb. She bled from the arms for approximately half an hour. She was admitted to the hospital on a Form 1.
25On September […], 2008 the Child left her yard without permission. She was followed by staff who sat with her on the curb of the highway. She commented on the size of trucks going by. The Board received evidence that when she returned to the group home, she sat in an unoccupied room, yelling that she wanted to commit suicide and had planned to jump in front of a truck.
26The evidence indicates that the Child has repeatedly said she wants to die and more specifically, that on September […], 2008, wrote about death and pain and told staff she did not want to live anymore. That same day, she said words to the effect that: “I feel alone and empty and if I had something, I would do it”, referring to killing herself.
27Based on this evidence, the Board was satisfied that criterion (b) had been met in terms of both actual substantial bodily harm and threats of substantial bodily harm, resultant from the Child’s mental disorder.
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
28The Board was satisfied that Youthdale’s treatment program would be effective to prevent the Child from causing or attempting to cause serious bodily harm to herself.
29The Crisis Worker J. testified about the very high level of security in which there is no access to sharp objects, including glass. She testified about the locked nature of the facility and the high level of staffing. She also spoke about the continuum of interventions that were specifically designed for each child in terms of responding to that child’s particular stage of agitation. If needed, this Child could be assessed hourly to see if there was a need for extra staffing, given her history of self- harming. She would be evaluated, followed by a psychiatrist and her medications reviewed in a stable context.
30The Board was satisfied that criterion (c) was met.
Criterion (d) treatment appropriate for the Child’s mental disorder is available at the place of secure treatment to which the application relates.
31The Board was satisfied that treatment appropriate for this Child’s mental disorder of emotional processes was available at Youthdale.
32The Crisis Worker described the treatment and programs to which the Child would be given access. This included psychiatric assessment and treatment, therapeutic crisis intervention, access to a psychologist and a medication review, as well as a therapeutic peer group and one to one front line monitoring. The team would look at the triggers of the suicidal threats/behaviours and assess what can be done to resolve them.
33The Board was satisfied that criterion (d) was met.
Criterion (e) no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances.
34The Board is satisfied that no less restrictive method of providing treatment appropriate for the Child’s mental disorder was appropriate in the circumstances of this admission.
35The Child lived in treatment foster care for five years. She then lived in a residential treatment centre, [ ], in which she had access to numerous interventions, including social and therapeutic interventions. [ ] was staffed 24 hours per day and locked after the youth were in bed. The Child ran from [ ] and engaged in risky behaviours. When she was moved to A., a more secure setting, with a buzz in and out system, she still ran from the play area and sat near traffic, considering jumping in front of a truck. Although the residents had no access to “sharps” at A., the Child broke light bulbs or managed to find glass with which to cut herself. Staff requested that she be placed on one to one staffing during the day. This was done, but did not prevent the Child from cutting herself at night, to the point of needing hospitalization. The staff requested two to one staffing in order to keep the Child safe. The child was placed on a Form 1 and admitted to hospital. She did well in this secure environment where people did not pressure her from a behavioural modification standpoint. Upon her release, however, the self harm and suicidal comments did not subsist. The residential treatment facility, A., advised the CAS that they would be discharging the Child. It was felt that the facility could not keep the Child safe. They also had concerns about sexualized behaviour and about younger children mimicking the Child’s behaviours, which was apparently occurring. The CAS believes that the best setting for the Child would be a secure residential treatment setting, without younger children, preferably with all females in which the Child could move beyond intrusiveness once she was out of crisis. The Child agrees with this type of placement and would like to go back to [ ]. She would also like to see her psychologist, Dr. H. again. Ultimately, she would like to be in a family home.
36[ ] and similar residential facilities were not secure enough settings to meet the Child’s needs at the time of admission. A., the most secure setting of the less restrictive settings, was not therapeutically appropriate given the Child’s history at that facility and her interaction with staff and younger peers there. Admissions to the hospital, unless voluntary are dependent on a crisis and specific criteria being met. Because of the potential organic nature of the disorder , the Child’s lack of insight into her disorder and the level of help she requires to keep safe (she blames external stressors or persons and claims that she is merely attention-seeking) a voluntary or short term Form 1 admission would not be appropriate, nor would out patient therapy. The treatment foster home model and one to one staffing in a less restrictive setting have not proven effective in treating the Child.
37The Board was satisfied, on the basis of the evidence, that criterion (e) was met.
CONCLUSION
38Pursuant to section 124 (13) of the CFSA, the Board, having satisfied itself that the criteria in subsections 124 (2) (a) through (e) have been met, dismissed the application of the Child, M.L.F., under section 124(9) of the CFSA, on September 30, 2008.
Sheena Scott
Presiding Member
Mary Wong
Board Member
Alina Lazor
Board Member
Dated at Toronto, Ontario on the 27^th^ day of October, 2008.