C.F. v. Youthdale Treatment Centres, 2012 CFSRB 10

CHILD AND FAMILY SERVICES REVIEW BOARD

C.F.

v.

Youthdale Treatment Centres

REASONS FOR DECISION

Date: March 12, 2012

Citation: 2012 CFSRB 10

Indexed as: C.F. v. Youthdale Treatment Centres (CFSA s.124)

INTRODUCTION

1This is an application by C.F. (the “Child”), born September [ ], 1997 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 February 2, 2012 and related to the Child’s admission to Youthdale on January [ ], 2012. The hearing was held on February 3, 2012.

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. 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 that 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).

4For the reasons that follow, the Board found that the Child did not meet criterion (a) listed in section 124(2) and ordered that she be released from Youthdale.

PRELIMINARY MATTERS

5The Board dealt with two preliminary matters concerning the criteria being contested and admissibility of certain materials as evidence.

6Counsel for the Child indicated that the Child was not contesting criteria (c) and (e) but that criteria (a), (b), and (d) would be contested. The Board must still satisfy itself that all criteria are met. If there is no mental disorder under criterion (a), then criteria (b), (d) and (e) cannot apply.

7Counsel for the Child indicated that she would object to the admission into evidence by Youthdale of the Admission Summary and of Form 14, unless the admitting psychiatrist or another psychiatrist was available to be cross-examined on these two documents.

8Counsel for Youthdale advised that the admitting psychiatrist or another psychiatrist would not be called to testify at the hearing.

9Counsel for the Child argued that the Child’s liberty interests were at stake and she should be accorded due process under the Charter and procedural fairness. This includes the right to cross-examine the admitting psychiatrist or another psychiatrist about the medical opinions in the two documents in question, since they formed the basis for the decision to admit the Child.

10Counsel for the Child also argued that the onus is on Youthdale to present the material it relied upon for the admission, so that it could be tested through cross- examination and to fail to do so would be profoundly unfair to the Child.

11Counsel for Youthdale argued that Youthdale wishes to present its best case, however that due to limited resources, a psychiatrist is not available to give testimony. She also presented case law examples related to the value and admissibility of and weight given to hearsay evidence (Starson v. Swayze 2003 SCC 32, [2003] 1 S.C.R. 722; E. v. Desai, 2006 , ON S.C).

12The Board ruled that it would not accept the Admission Summary or the Form 14 as evidence, without the presence of the admitting psychiatrist or another psychiatrist to give testimony and be available for cross-examination. Both Charter protections and procedural fairness entitle the Child the right to test the critical evidence that has led to her loss of liberty. The Child’s liberty interests are primarily and directly impacted by her admission into Youthdale and the Form 14 and Admission Summary contain the basis for the Child’s deprivation of liberty.

BACKGROUND

13The Child is a 14-year-old youth who was admitted to Youthdale on January [ ], 2012. She had been living with her father prior to her admission. She has had no contact with her mother since May 2010, at which time she moved in with her father.

14The Child’s father contacted Youthdale in August of 2011 for an assessment. At that time, the father was concerned that the Child was spending time in her room and did not want to attend school. The Child and her father were planning a move to Scarborough, which meant that the Child would be starting grade nine in a new school, which she was reluctant to attend despite the fact that she had selected it initially. During the process of the assessment by Youthdale at that time, concerns were identified that required Youthdale to contact the (“the Society”). The Society remains involved with the father.

15The Child attended the new school and did well until she received her report card at the end of November 2011. Since that time, she has refused to attend school and spends most of her time in her room. The Child’s father was advised to take her to the family doctor and to a local hospital. The Child’s father contacted Youthdale on the referral of [the centre]. The Child was admitted to Youthdale on January [ ], 2012.

ANALYSIS

16The criteria that the Board must apply in secure treatment reviews is set out in the following legislative provision:

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,

(b) the child has a mental disorder;

(c) 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;

(d) 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;

(e) treatment appropriate for the child’s mental disorder is available at the place of secure treatment to which the application relates; and

(f) no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances.

17Each of the above criteria must be met at the time of admission to confirm the Child’s placement at Youthdale. In this case, criterion (a) was not met as described below.

Criterion (a) the child has a mental disorder.

18The Board is not satisfied that at the time of this admission, 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.

19The Board heard from the Child’s father and a Youthdale worker who is a member of the Crisis Support Unit and was involved in the Child’s admission to Youthdale. The Child’s father testified that the Child had lived with her mother for several years before she came to live with him in May 2010. He stated the Child has not gone to school since late November 2011, after she received a report card that she was unhappy about. Apparently the Child received good grades on her report card, but was disappointed in the results, as compared with her classmates. From this point on she did not want to go to school. The Child was described as spending all of her time in her room except for meals, not wanting to make new friends or learn new things and talking to her cat like a person. The Child’s father further stated that the Child would respond to calls from friends from her grade eight class, but not anyone else. In addition, she was up all night and slept during the day.

20The school social worker had attended the home during this period and demanded that the Child “get dressed and get out of the house”. The Child complied with her and went to school briefly. The Child’s father had been advised to see the family doctor, who recommended that he take the Child to a local hospital where she was not admitted. The doctor at the hospital discussed medication, but did not prescribe any medications for the Child. She was described by the doctor as a little depressed. In addition, the doctor suggested a plan to ease the Child back to school that included having the Child attend school for the “easy” subjects and be tutored at home for the “hard” ones. This plan was initiated briefly before the Child’s admission to Youthdale.

21The Child’s father seemed at a loss as to how to manage the Child himself and was clearly highly anxious and stressed about the situation. He expressed the view that the Child should be making new friends at this point in her life and should want to be learning new things. He also stated that the [the centre] had seen the Child when she was in grade 7 and she was on a two-year waitlist. His more recent contact with them suggested that they could provide services to the Child within two weeks.

22The Youthdale worker did not present any evidence based on her own observations of the Child prior to admission on January [ ], 2012.

23The Board did not hear any direct medical evidence regarding the Child having a mental disorder. The assessment report that was completed just before the Child’s admission to Youthdale was admitted into evidence by the Youthdale worker. It included information about the Child’s behaviour that was consistent with the testimony presented by the Child’s father. The previous Youthdale assessment report dated August [ ], 2011 was also admitted into evidence and reflected the difficulties both the father and the Child were having at that time related to school attendance.

24A 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 Board did not hear any evidence to indicate that this criterion had been met. The two assessment reports did not reflect any behaviour that was consistent with the definition of a mental disorder. There was no evidence that the Child attempted to, or directly threatened to, cause serious harm to herself or others, which could be evidence of a mental disorder. Counsel for Youthdale asserted that serious bodily harm to self could include psychological harm as decided by the Supreme Court of Canada in R. v. Mc Craw [1991 ] 1991 29 (SCC), 3 S.C.R. 72 (“Mc Craw”). However, no evidence was presented to support this assertion as applied to the Child. Therefore, the Board has not dealt with the submissions relating to Mc Craw.

25The Board acknowledges that the Child’s father is anxious and concerned about her behaviour, that he is unable to manage it himself and that he has made attempts to seek the support of professionals. The Board did hear evidence to suggest that the Child may have unresolved issues relating to her mother and father and perhaps adjustment issues resulting from a recent move and transition to high school and a new school environment.

26On the basis of the evidence presented, the Board finds that the Child did not have a mental disorder, as defined in the Act, at the time of her admission to Youthdale. The Board was satisfied that criterion (a) was not met.

27Each of the five criteria under section 124 (13) of the Act must be met at the time of admission, to confirm the Child’s placement at Youthdale. In this case, the Board finds that the Child did not have a mental disorder as defined by the Act. Therefore criterion (a) was not met, which is a sufficient basis upon which to base its decision.

CONCLUSION

28Pursuant to section 124 (13) of the Act, the Board, having satisfied itself that the criterion (a) in subsections 124 (2) had not been met, released the Child on February 3, 2012.