T.B. v. Youthdale Treatment Centres, 2011 CFSRB 29

CHILD AND FAMILY SERVICES REVIEW BOARD

T.B.

v.

Youthdale Treatment Centres

REASONS FOR DECISION

Date: August 25, 2011

Citation: 2011 CFSRB 29

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

1This is an application to the Child and Family Services Review Board ( the Board”) by T.B., (the “Child”), born August […], 1996 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 (the “Act”). The application was dated August 8, 2011 and the hearing was held on August 10, 2011.

2The Board must decide, on a balance of probabilities, whether each of the criteria set out in subsections 124(2) of the Act was met at the time of admission, having regard to the best interest of the Child. Youthdale’s position was that all five criteria had been met and that the application should therefore be denied. The Child’s position was that criteria (a), (b) and (e) were not met and consequently, she should be released.

3For the reasons that follow, the Board found that the Child did not meet the requisite criteria at the time of her admission to Youthdale and therefore ordered that she be released from the secure treatment program on August 10, 2011.

PROCEDURAL ISSUES

4The Child’s lawyer objected 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. He argued that the Child’s Charter rights would be subject to infringement since she is losing her liberty and that elevates the standard of procedural fairness to a very high degree. He argued that the absence of the admitting psychiatrist for cross examination was prejudicial to the Child as she would be unable to test the very evidence which had deprived her of her liberty and Charter rights through cross examination. He further argued that the documents were not business records and they could not be entered as such because they were the opinion of the psychiatrist. He relied on a previous Board decision: ES10-0027.

5Counsel for Youthdale argued that a previous Board decision is not binding on the Board and that the diagnosis by the Youthdale admitting doctor has a high probative value and forms the basis for admittance and treatment of the Child at Youthdale. Counsel for Youthdale also argued that the Admission Summary of the Child was evidence that should be admitted by the Board and given the appropriate weight because there were health and safety issues that should be balanced in the best interest of the Child. He further stated that the admitting psychiatrist could not be summoned without proper notice, as the Board’s protocol surrounding the issuing of summons stated that summons must be issued “as soon as possible”.

6The Child’s lawyer responded that the onus of proof rested with Youthdale and he noted that it was not his client’s job to bolster the Youthdale case by calling the admitting psychiatrist. He further stated that if Youthdale took the case seriously, it would have the psychiatrist available for the hearing.

7The Board ruled that the Form 14 and the Youthdale Admission Summary would not be admitted into evidence without the admitting psychiatrist present for cross examination. The Board accepted the submission on behalf of the Child that because the Child is being deprived of her liberty, there must be a high level of procedural fairness which includes the opportunity to test the opinion of the psychiatrist through cross-examination. The onus rests with Youthdale and not the Child and Youthdale must meet its case. The Board offered to accommodate the work schedule of the admitting psychiatrist so that he could testify at the hearing, however, counsel for Youthdale declined to call the psychiatrist as a witness.

8The Child’s Counsel challenged criteria (a) (b) and (e). He stated that he would not be leading evidence about criteria (c) and (d).

9The Board heard from the Child’s Children’s Aid Society Child Protection Worker and the [Program A] Coordinator who presented the case for her admission and the Youthdale crisis worker who introduced the Crisis Assessment Forms. She gave evidence that the crisis team had contacted the Child’s caregivers to obtain the current and historical information required before admission could be recommended. Contacts included the Children’s Aid Society [ ] (“CAS”), the [Program A] and the Child’s foster home.

BACKGROUND

10The Child, [ ] is a fourteen year old girl who lived with her mother until December 2009, when her father gained custody of her. The Child was placed at the [Program A] treatment residence in February 2010, for one year after which she returned to her father’s home in March 2011. The Child’s father works on a two weeks on and a two weeks at home rotation and during his absences from the home the Child‘s stepmother was the primary caregiver. The stepmother was unable to control the Child’s behaviours at home without her partner and this led to high parent-child conflict. The Child went AWOL on May […], 2011 and the stepmother was not prepared to have her back in the home. She was placed under a temporary care agreement with the CAS and returned home on May […], 2011. On May […], 2011 the Child did not return home and went to the [Program A] residence instead. She was placed under a temporary care agreement with the CAS and returned to her father on May […], 2011. The father placed the Child in care on June […], 2011 as he was no longer prepared to parent her after an incident the previous night.

11The Child attends [School A] in [City A], where she had been placed on an individualized education program. She was taken to [Hospital A] and released on June […], 2011 after admitting to taking Oxycontin. On July […], 2011, the Child was once again taken to the hospital where she was admitted overnight and released the next day without any psychiatric treatment. On July […], 2011 the Child was placed at [Foster Home A], a therapeutic foster placement until an assessment bed could be found for her.

ANALYSIS

12Under section 124 (2) of the Act, the Board must decide whether each of the following legislative criteria were met at the time of admission:

(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.

Section 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).

13The Board is therefore required to release the Child unless all criteria are met. The Board concluded that in this case, criteria (a) to (e) were not met at the time of admission, thus, ordered that the Child be released from Youthdale.

Criterion (a) the child has a mental disorder.

14The Board was satisfied that at the time of her admission, the Child did not have 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 did not have a substantial emotional process disorder which grossly impaired her capacity to make reasoned judgements.

15The Child’s worker testified that the CAS had ongoing involvement with the Child’s family when she resided with her mother due to concerns around physical harm, addiction, mental health issues, as well as parent-child conflict in the home. When the Child went to live with her father, things ran smoothly when he was in the home. His work necessitated absences of two weeks, during which his partner provided minimal support for the Child resulting in parent-child conflict. A respite worker was assigned to the Child to help her with time management and to provide support when the father was away as the CAS wanted to give the parties an opportunity to work on their relationships.

16The worker testified that the step mother reported that she was afraid of the Child because she had made verbal threats to harm her, as well, the Child had recorded the threats in her personal diary which the step mother had read. After an incident on June […], 2011, the Child became angry and upset and she cut her arm with a razor. She then contacted the [Program A] residence for support. [Program A] alerted the father who attempted to address the issues with the Child. This led to an argument and an escalation of the conflict which resulted in the father’s decision to stop parenting the Child.

17The worker stated that the Child was taken to the [Hospital A] twice in the preceding month and she was released without being admitted on a “Form 1”. The Child had reported taking Oxycontin on June […], 2011 and being assaulted by her boyfriend. She was taken to the hospital, but she was not admitted. On July […], 2011 the Child was again taken to the hospital and admitted overnight because she had said that she did not want to hurt anyone, but during a rage she felt that she could.

18The Child had been placed in a foster home when she came into the care of the CAS, however due to peer conflict with the other residents, she wanted to return to the [Program A] residence. The CAS placed her in the [Foster Home A] therapeutic foster home on July […], 2011 because specially trained foster parents would be available full time in the home to support the Child until an assessment bed could be found for her. The worker believed that the [Program A] placement was no longer an option for the Child. The worker testified that three of the smaller children in the home began throwing rocks at the Child on July […], 2011 and that she retaliated by throwing a large rock at them. No one was hurt but subsequently the Child cut herself when she tried to take out the razor blade from her razor and she hurt her wrist because she punched the wall.

19The worker further reported that the Child engaged in high risk sexual activities in the community, she solicited sex over the internet using her cousin’s identity; she ran away from her home, used drugs, threatened to harm others and she engaged in self harm.

20The intensive family coordinator from the [Program A] program testified that the Child had a large team of caregivers including , child and family therapist, the school principal and assistant principal, the school board social worker, the resource teacher, the education assistant, the child development officer, the CAS worker, the Child’s parents and herself, and that they had identified the following goals for the Child; decrease anxiety, build social skills and provide safety and security, however no psychiatrist was involved in her care. The service team did not have a recent psychiatric assessment of the Child and they were utilizing recommendations which were made in a 2009 assessment by the [Health Centre A]. The Child had not been diagnosed on the Autistic Spectrum, however the recommendation from the assessment was that the team should adopt the same strategies used with the Autism Spectrum Disorder population when working with the Child. The Child had wrap around services at school which included a one to one worker and this strategy had proved to be successful for the Child.

21The Board did not hear direct evidence regarding a current diagnosis as the admitting psychiatrist did not testify at the hearing. The weight of the behavioural evidence provided by the workers was not sufficient to conclude that the Child suffers from a mental disorder as defined by the Act. The Child had attended the hospital in June and again in July, 2011 and she had not received any psychiatric treatment. She had threatened her step mother in their ongoing parent child conflict and she documented the threat in her diary as a therapeutic gesture (taught to her by the [Program A] program). This was private and not meant to be read by the stepmother. The Child has peer relationship difficulties in her foster homes and she has threatened to harm other residents in her home but the Board did not hear any evidence that she had taken serious steps to harm either herself or other persons. The Board accepts that the Child threatened other residents in her homes, that she engaged in risky sexual behaviours in the community and made unwise lifestyle choices with regards to drug use, running away from home and superficially cutting herself, however, in the Board’s opinion, the Child’s behaviours do not indicate a substantial disorder of the emotional process as required by the Act.

22Section 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. Based on the evidence presented, the Board finds that the Child did not have a mental disorder, as defined by the Act, at the time of her admission to Youthdale. The Board was satisfied that criterion (a) was not met.

23Since the Board finds that the Child did not have a mental disorder as defined by the Act, criteria (b), (d) and (e) do not apply as they require as part of their operation that the child have a mental disorder. These criteria were not applicable and were not met.

CONCLUSION

24Pursuant to section 124 (13) of the Act, the Board, having satisfied itself that all of the criteria in subsections 124 (2) had not been met, released the Child, [ ], under section 124(9) of the Act, on August 10, 2011.

Gail Gonda

Presiding Member

Lorna King

Panel Member

Alina Lazor

Panel Member