CHILD AND FAMILY SERVICES REVIEW BOARD
M.C.
v.
Youthdale Treatment Centres
REASONS FOR DECISION ON MERITS
Indexed as: M.C. v. Youthdale Treatment Centres (CFSA s.124)
INTRODUCTION
1This is an application to the Child and Family Services Review Board (the “Board”) by M.C. (the “Child”), born September […], 1995, for a review of her emergency admission to the Secure Treatment Program at the Youthdale Treatment Centre (“Youthdale”) pursuant to section 124(9) of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act” ).
2The Board must decide, on a balance of probabilities, whether all of the criteria set out in subsection 124 (2) of the Act were met at the time of the admission. 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 three of the five criteria had not been met and therefore, she should be released.
3Pursuant 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).
4If any one of the criteria is not met, the Board is obliged to release the Child.
5The applicable considerations are set out in the legislation, 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.
6For the reasons that follow, the Board was not satisfied that criteria (a), (b) and (e) were met and ordered the release of the Child.
BACKGROUND
7The Child is fourteen years of age. Prior to her admission to Youthdale on November […], 2009, the Child lived with her mother and her eleven year old sister. She has always lived with her mother and has never lived in a foster home or a group home. She has never spent time in residential treatment or been admitted either voluntarily or involuntarily to a hospital. The mother has Bipolar Affective Disorder (manic depression) and sought out help for the Child because she is concerned that she may also have manic depression. The Child is described as having extreme mood fluctuations. She has stayed out overnight on two occasions and steals from her mother and sister. The Child has admitted to regular marijuana use, drinking and smoking. When angry, she has said things like: “I hate my life, I want to die”. When she calms down, she acts as if nothing has happened. She has never taken any steps towards harming herself following these comments. She has had conflict with her mother and verbally “bullies” her sister. She lit something on fire in the bathroom on the ceramic tile floor which resulted in her mother finding cinders in the bathroom. She has had fights in school in the past (in grade 8 and possibly one in grade 9).
8The Child was sexually assaulted in August of 2009 by a 21 year old male who was charged after the Child spoke to the police. She regularly attended her counseling on issues relating to this victimization.
9The Child has skipped one class consistently since the start of this school year and another class some of the time. Just prior to her admission to Youthdale, she was suspended for truancy. She has an Individual Education Plan with resource support. She has not yet had a psycho-educational assessment; however one was to be arranged.
10The mother called her local children’s aid society (“society”). The society has an open file on the family and is looking into residential treatment. According to the mother, the society advised her that they did not have resources for teenagers. No one from the Society was available to testify at the hearing.
Criterion (a) the child has a mental disorder
11“Mental Disorder” is defined under s. 112 of the Act as “a substantial disorder of emotional process, thought or cognition which grossly impairs a person’s capacity to make reasoned judgments”.
12The Board heard evidence of what amounted to parent-child conflict. This included M.C. engaging in attention seeking behaviours, stomping up the stairs, allegedly punching walls, stealing and “getting in her mother’s face”. Her mother is not sure how to deal with the situation when her daughter is angry and says things like “I hate my life”; “I want to kill myself”. The Child then calms down and it is as if nothing has happened. The mother testified without detail, frequency or context about the Child’s rapid mood swings. The mother is concerned that her daughter may have Bipolar Affective Disorder. The mother has been living with this diagnosis since 1986 and manages to hold down her job. She is on medication. She has a history of problems with drugs and alcohol and has recently started drinking again “in part due to the stress of dealing with her daughter”. It was clear from the mother’s evidence that she was struggling to cope with her daughter’s behaviour.
13The Child spent some time with a 21 year old man who sexually assaulted her. There was no evidence presented regarding the assault except that the Child spent some time driving around over the course of a few days with another girl and another older male. She has not seen her assailant since the sexual assault. She met with the police about the assault and actively engaged in counseling following the sexual assault.
14The Child’s mental status examination upon admission to Youthdale showed nothing striking or significant. According to the Admission Summary, her thought process was clear and coherent. She denied delusional thinking and suicidal or homicidal ideation. In addition, “she showed partial insight”. The report concluded that “in the community her judgment certainly has been impaired. Her cognition was not formally tested but she was alert and appears to be of above average intelligence”.
15While the Board agrees that there is evidence that the Child’s judgment has been impaired to some extent in the community, including at home, the Board does not have sufficient evidence to conclude that there has been a “gross” impairment of judgment. The Admission Summary does not note “gross impairment”. There is no evidence of a substantial disorder of emotional thought or cognition as the basis for the poor judgment exercised at times by the Child. Generally, the Board was not given evidence about time frames, context or frequency but was referred to a few incidents. The Board was given more information about the frequency of marijuana use but no clinical insights were presented to the Board about substance abuse. The Child attended at the hospital on her own to seek medical care if required, after taking diet pills, which shows that her judgment was not impaired. The Admission Summary queries several diagnoses including Conduct Disorder, Substance Abuse, Post Traumatic Stress Disorder, Attention Deficit Hyperactivity Disorder, Learning Disability and Parent-Child Relational Problems and also states “rule out mood disorder”. The Board does not find the behaviours cited or the diagnosis queried as sufficient basis, on a balance of probabilities, to conclude that the Child has a mental disorder as defined by 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; herself or another person.
16Having found that there was insufficient evidence to conclude that there was a mental disorder, the Board could not logically satisfy itself that as a result of a mental disorder, the Child caused, attempted to cause, or made a substantial threat to cause serious bodily harm to herself or to others.
17Even if the Board had concluded that the Child had a mental disorder, there was no evidence that the Child inflicted serious bodily harm on anyone or that she had made a substantial threat to do so. She may have hit her mother once when “she got in her mother’s face” and her mother hit her back. No evidence was led to suggest that her mother suffered any injury. Her interaction with her sister is in the nature of verbal bullying. She did take thirty diet pills at one point but there was no evidence as to when or what type of pills. No hospital records were admitted to address the risk of serious bodily harm or actual bodily harm. There was no evidence that she was hospitalized for taking diet pills.
18In terms of her comments about hating life and wanting to kill herself, there was no evidence to show that the Child might act on these threats. The mother’s evidence was simply that the mother didn’t know how to deal with these comments. In order for a threat to be “substantial” there must be a prospect that the threat is real. There was no attempt made to actualize self harm following a comment. The evidence was that when the child calmed down, it was as if nothing had happened.
19The fact that the Child was sexually assaulted was raised several times. The Board heard no evidence on the circumstances surrounding or following the actual sexual assault. The Board is not prepared to entertain the suggestion that the Child caused serious bodily harm to herself because she was the victim of a sexual assault.
20No evidence was led to suggest that the Applicant’s substance use had seriously harmed her or led to a substantial risk of serious physical harm.
21Criterion (b) was not met at the time of admission.
Criterion (e) no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances.
22In order to meet criterion (e), the Child must have a mental disorder. The issue is whether any less restrictive appropriate options to treat the Child’s mental disorder are appropriate. Where no mental disorder exists, the criterion does not apply. However, even if the Board had concluded that the Child had a mental disorder, the Board is not satisfied that there were no less restrictive appropriate means of treating the child’s mental disorder. The Board finds that there were less restrictive methods of treating the Child; specifically, foster care or treatment foster care and out-patient counseling and assessment.
23The Board heard hearsay evidence that the local children’s aid society would not place the Child in foster care because of her behaviours. The Board did not hear any evidence in terms of how separation of the child from the other person in the parent-child conflict (her mother) would impact on her behaviours. The Board did hear that the Child’s behaviours were associated with her wanting her mother’s attention. The Board did not hear whether the society had ruled out foster care or treatment foster care with “wrap around” clinical supports. The Board heard that the Child’s age and lack of resources may have been a factor in how the society responded to the Child.
24The Board heard that the family doctor had suggested a psychiatric assessment. However, neither the mother nor the local society followed up on a referral to the two local psychiatrists. The Child was attending counseling as a victim of the sexual assault. There was no indication that she would not consent to out-patient counseling, assessment or supports. She was on a waiting list for out patient counseling and for residential placement. There was no evidence of recent, emergent behaviours on the part of the youth preceding admission to indicate that an out patient approach was not appropriate.
25Dr. S., the Director of Crisis Services at Youthdale, testified that sometimes an assessment at Youthdale’s secure treatment unit will lead to prioritizing youth with community resources. The Board agrees with the submission from counsel for the Child that this is an irrelevant consideration. To deprive a child of her liberty in order to more readily access community resources flies in the face of the use of secure treatment as an extraordinary measure of last resort that must only occur under the most narrow of circumstances.
26For these reasons, the Board finds that criterion (e) was not met at the time of admission.
CONCLUSION
27Pursuant to section 124 (13) of the Act, where the Board is not satisfied that each of the five criteria have been met, it must order the release of the Child. In this case, because the Board was not satisfied that criteria (a), (b) and (e) were met, it allowed the application of the Child under section 124(9) of the Act on December 2, 2009 and ordered her release.
Ruth Ann Schedlich
Presiding Member
Jennifer Scott
Panel Member
Sheena Scott
Panel Member
Dated at Toronto, Ontario this 11th day of December 2009