T.D. v. Youthdale Treatment Centres, 2010 CFSRB 51

CHILD AND FAMILY SERVICES REVIEW BOARD

T.D.

v.

Youthdale Treatment Centres

REASONS FOR DECISION ON MERITS

Date: December 6, 2010

Citation: 2010 CFSRB 51

Indexed as: T.D. v. Youthdale Treatment Centres (CFSA s.124)

INTRODUCTION

1This is an application to the Child and Family Services Review Board (the “Board”) by T.D, (the “Child”) born August […], 1998 for a review of his emergency admission on November […], 2010 to the Secure Treatment Program at the Youthdale Treatment Centre (“Youthdale”), pursuant to section 124(9) of the Child and Family Services Act (the “Act”). The hearing was held on November 25, 2010.

2The Board must decide on a balance of probabilities, whether each of the criteria set out in subsection 124(2) of the Act were met at the time of admission, having regard to the best interests of the Child. The Respondent’s position was that all five criteria were met and that the application should therefore be denied. The Child’s position is that criteria (c) and (d) were met but that (a), (b), and (e) were not met and consequently, he should be released. Since Counsel for the Child conceded that criteria (c) and (d) were met, the Board will not address these criteria in its reasons.

3For the reasons that follow, the Board found that the Child met all of the criteria listed in s.124(2) at the time of his admission. Therefore, the child was not released from Youthdale.

PROCEDURAL MATTERS

4Prior to the commencement of the hearing, the Child’s lawyer advised that he would be objecting to the admission of the Form 14 and the Youthdale Admission Summary into evidence, unless the admitting psychiatrist was available to give evidence and be subject to cross examination.

5Counsel for Youthdale advised that the admitting psychiatrist, Dr. W. was not scheduled to testify at the hearing because other evidence was available for the panel to consider. Counsel further stated that Dr. W. would be at Youthdale between two and three in the afternoon, however, he would not be called to give any evidence before the Board.

6The Board ruled that the Form 14 and the Youthdale Admission Summary would not be admitted into evidence without the presence of the admitting psychiatrist or his supervisor for cross examination.

7In looking at the level of procedural fairness that the Board should give to a child applicant in a hearing of this type, one must look at the context, including the interests at stake. The Child’s liberty interest is directly impacted by the Form 14 and the Admission Summary. These documents contain the basis for the Child’s deprivation of liberty and commitment to a locked setting for up to thirty days. A Form 14 sets out the basis on which the admitting psychiatrist concluded that the child met the relevant criteria for admission. An Admission Summary can also contain a clinical opinion about the child’s mental health needs and the propriety of admission.

8The best interests of the Child is the paramount principle under the Act, [s. 1 (2)]. Further procedural safeguards exist in the Act for the Child [s. 114, 115 and 124] relating to the right of the child to be fully heard in the review process. Finally, the secure treatment provisions are an “extraordinary measure” under the Act.

9In these circumstances, a child should not be deprived of liberty without a high standard of procedural fairness. It would be procedurally unfair to permit the introduction of the very evidence that forms the reasons for the loss of liberty, without permitting the testing of that evidence through cross-examination.

10On receiving the ruling, Counsel for Youthdale consulted with her instructing client and advised that Youthdale would not be calling the admitting psychiatrist or his supervisor to testify at the hearing.

11The Child’s Counsel made a motion for non-suit with respect to the application. A 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.

12On a non-suit motion the question for the Board is:

Is there some evidence, which, if believed, could lead to a finding that each of the five criteria had been met?

13The Board denied the motion for non-suit for the reasons that follow. In 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.

14The Child brought the motion because the Form 14 and the Youthdale Admission Summary were not in evidence before the Board. Counsel for the Child argued that there was no evidence before the Board upon which the Board could find that the relevant criteria had been met. He submitted that the onus was on Youthdale to provide evidence and that without the clinical opinion evidence; they could not meet this onus.

15The Youthdale counsel argued that there was no requirement for a diagnosis under the Act and further that there was no onus for Youthdale to call the admitting clinician or the Administrator. She submitted that the Child should summons the Administrator.

16As noted above, the onus is on Youthdale. The Board notes that it is not incumbent on the Child to summons a witness that Youthdale chooses not to call. Where they do not lead evidence from the admitting clinician, Youthdale takes a chance that it will not meet its onus and that a motion for non-suit will succeed. However, in this case, even without calling the admitting clinician, there was some evidence after the completion of Youthdale’s case that the Board could rely on. The Board heard from the Youthdale crisis worker who introduced the Crisis Assessment Form. He gave evidence that professionals had been contacted by the crisis team in order to obtain the historical and current information which was required before an admission could be recommended. Contacts included the Child’s School Principal, [Agency], [ ] CAS and the Child’s father. The Child’s mother testified before the Board presenting the case for his admission.

BACKGROUND

17[The Child] is a 12 year old boy who lives with his mother. His mother and father do not live together but he has frequent contacts with both his father and younger brother.

18[The Child] is enrolled in grade 7 at [School A] but he experiences difficulties with concentration and focus. His mother reported that he had a special education teacher and that earlier; the school had tried to accommodate the Child by placing him in a class for students with behavioral issues. The mother further stated that the school had determined that [the Child] required an Individual Education Plan (IEP). She described the Child’s behavior as very destructive as he frequently destroys property at school and at home. She further testified that he was vulgar to female students at school, was verbally and physically aggressive and that he ran away constantly. The Child has been suspended many times and although the school tries to accommodate him by offering “calming zones” like the office, the library or the kindergarten section, nothing seems to work.

19[The Child] was in the temporary care of the [ ] Children’s Aid Society from April to August, 2010. His mother reported that she placed him in care after he “trashed” his room by hitting the walls with a baseball bat over the course of two days. The incident “terrified” her and necessitated calling the police. He did well in the placement and returned to his mother’s home where he was compliant and happy until September, 2010 when he had to return to school.

20[The Child] had been placed on Concerta in March, 2010 however this medication was discontinued in June, when [the Child] was found to have abnormalities on his EKG. [The Child’s] mother reported that the Child’s behavior had improved tremendously during the period when he had taken the Concerta. Dr. L.B., the Child’s Pediatrician had made a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) but she had subsequently discontinued medication because of the cardiac concerns.

ANALYSIS

21The Board had to decide if all of the mandated criteria were met at the time of the admission.

22Section 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)

23The relevant criteria are set out in the following legislative provisions:

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.

Criterion (a) the child has a mental disorder.

24The Board was satisfied that at the time of admission the child had a mental disorder within the meaning of the Act. A mental disorder is defined in the Act 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 did have a substantial emotional processes disorder which grossly impaired his capacity to make reasoned judgments.

25Section 124 is under Part VI, Extraordinary Measures, of the Act. There must be extraordinary circumstances before a child is placed on an emergency basis in a secure treatment unit. The right to review the placement before the Board is a significant safeguard, which is in place to protect the child’s right to liberty. The admitting program, Youthdale, 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.

26The Child’s mother testified that [the Child] constantly runs away from home. During the course of one night he left the home on three different occasions. On average, he was missing once per week. The Youthdale crisis team worker brought into evidence the statement from the Child’s Principal on November […], 2010 when he was interviewed by Youthdale. The Principal stated that [the Child] was not attending school although his mother brings him to school. He either leaves the building when she leaves or he goes to the office and lies about appointments or events in order to leave and “everyone believes him”.

27On October […], 2010 [the Child] stole his mother’s truck and endangered the lives of five of his friends when he drove the truck erratically on the highway at speeds of up to 140 kilometer per hour. The lives of the other motorists who were on the highway were also in danger as the Child drove the truck for five hours until he was found by the police.

28The Child’s mother testified that [the Child] was impulsive, violent with her as well as his younger brother and that he stole money and clothing which had resulted in her having to buy new locks for all of her doors. She further stated that he had joined a fight club and twice she had seen him with a bloody nose. One of those occasions resulted in a visit to the emergency department.

29She was also concerned that her son made statements about “kicking other kid’s ass” and she believed that [the Child] was using marijuana because she had found some in his room and a pipe to smoke it in his knapsack. On his return to school this fall, the mother noted an escalation of the Child’s behaviors and she testified that he became very volatile and impulsive and he began lying compulsively.

30The Child’s mother reported that [the Child] had been sexually assaulted twice in the community by an adult and that the last assault had “shattered him and rocked his world”.

31The Board after considering all of the evidence presented finds that the volatility, violence, rage, impulsivity and significant behavioral issues displayed by the Child demonstrate a grossly impaired capacity to make reasoned judgments. In the Board’s opinion, the Child’s behavior indicates a substantial disorder of the emotional process as required by the Act.

32The Board finds that the Child did have a mental disorder, as defined in the Act, at the time of his admission to Youthdale. The Board was satisfied that criterion (a) was 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 or others.

33The Board must decide whether 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 or others. The mother testified that the Child not only threatened harm but he actively participated in activities which could result in serious bodily harm to himself and others.

34[The Child’s] impulsive, aggressive out of control behaviors at school and at home resulted in frequent physical fights in the community and at home with his mother and brother. His mother reported that he started to talk about harming himself last year and the year before.

35[The Child] told his mother that he knew how to cut his wrist while he brandished a knife to demonstrate this to her. He also told her that he did not want to be alive.

36The Child posted racially motivated hate mail on Facebook and threatened to hurt the young person to whom the mail was addressed. He also posted hurtful derogatory comments about his ex girlfriend. [The Child’s] impulsive out of control behavior when he stole his mother’s truck, placed the lives of his five friends; the lives of all the motorists they encountered as well as his own in extreme danger during the five hour high speed journey he undertook. [The Child] did not return the stolen truck until the police intervened.

37These serious threats to harm himself as well as the threat of harm he posed to others by his actions and poor judgment were as a result of the Child’s mental disorder and in particular his impulsivity and his inability to control his moods and his actions. The Board finds that the threats were substantial because they involved more than the Child making statements. There were actions (gesture, going onto a website, driving a truck) that increased the likelihood of the threat being carried out. In terms of the high speed driving incident, the Child, his friends and the many motorists they encountered were at serious risk for a vehicular accident which could have had tragic results. The Board was satisfied that criterion (b) was 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.

38The Board must decide whether no less restrictive method of providing appropriate treatment was available. The evidence of the mother and the crises team worker shows that no less intrusive treatment was available for the Child.

39[The Child’s] mother testified that the family has been involved with [an Agency] and that they had participated in [Program A] which is an in home and in school program to assist families with coping and parenting skills. Both the mother and the Child participated in the [Program B] and the Child attended the [Program C] in the summer of 2009 and spring of 2010, until he refused further participation. The family also had counselling and a tele-psychiatric session in 2010.

40[School A] had provided a child youth worker in class as well as an I.E.P. for [the Child]. Despite these supports the Child’s behavior was out of control and he continuously fought, destroyed property and ran away which resulted in numerous suspensions.

41The [ ] Children’s Aid Society had been involved with the family and had provided a placement for [the Child] from March to August, 2010 after he had trashed his room. According to the crisis team worker, [the Agency] reported that the Child was on a residential placement list during April, 2010. A residential placement was secured for the Child however, when the situation improved the residential placement was declined and the Child went home. The mother believes that the Concerta trial had resulted in this improvement.

42The Child had been diagnosed with ADHD by his pediatrician and Concerta had been prescribed, however the medication was discontinued as a result of possible cardiac issues. The mother reported that the Child’s behavior had improved significantly while he was taking the medication but the negative behaviors returned when the medication was discontinued.

43The Child has had services with various degrees of intrusiveness including a foster placement, counseling, psychiatric and behavioral supports at home and at school and despite these services the Child’s behaviors have escalated. The Board is satisfied that given the Child’s escalating, extreme behaviors, a locked setting was required for stabilization and treatment at the time of admission. The medication, Concerta, which seems to help control the behaviors is not available to the Child for medical reasons. At the time of admission, this meant that less intrusive options would not suffice.

44The Board finds that criterion (e) was met and that no less restrictive method of providing treatment appropriate for the Child’s mental disorder was appropriate in the circumstance.

CONCLUSION

45Pursuant to section 124(13) of the Act, the Board, having satisfied itself that each of the criteria in subsections 124(2) (a) have been met, denied the application for released of the Child on November 25, 2010.

Gail Gonda
Presiding Member

Lorna King
Panel Member

Alina Lazor
Panel Member