K.R. v. Youthdale Treatment Centre, 2012 CFSRB 19

CHILD AND FAMILY SERVICES REVIEW BOARD

K.R.

v.

YOUTHDALE TREATMENT CENTRE

REASONS FOR DECISION

Date: May 31, 2012

Citation: 2012 CFSRB 19

Indexed as: K.R. v. Youthdale Treatment Centre (CFSA s.124)

INTRODUCTION

1This is an application by K.R. (the “Child”), born October [ ], 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 is dated May 3, 2012 and relates to the Child’s admission to Youthdale on April [ ], 2012. The hearing was held on May 5, 2012.

2The Board must decide, on a balance of probabilities, whether each of the criteria set out in subsection 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 all 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 meets all of the five criteria for admission and denied the Child’s application to be released.

PRELIMINARY ISSUES

5The Board dealt with preliminary matters concerning the admissibility of certain materials as evidence.

6Counsel for the Child advised that he would object to the admission into evidence by Youthdale of Form 14 and/or the Admission Summary unless the admitting psychiatrist or another psychiatrist were available to give evidence and be subject to cross-examination. This position had already been articulated through correspondence faxed by counsel on May [ ], 2012, and addressed to all parties.

7Counsel for Youthdale indicated that he would not call a psychiatrist to testify, and submitted that the Statutory Powers and Procedures Act section 15 permits hearsay evidence to be introduced at this hearing. He stated that the two items in question would be introduced in the course of testimony from Youthdale staff.

8Counsel for the Child submitted that the onus is fully on Youthdale to produce direct evidence that would justify the Child’s rights being denied through the proposed placement in a locked setting. Counsel submitted to the Board three previous decisions of the Board where the Board held that position: B.R. v. Youthdale Treatment Centres [ES10-0027, November 2, 2010], J.W. v. Youthdale Treatment Centres [ES11-0002, March 2 2011], and L.L. v. Youthdale Treatment Centres [ES11-0028, August 17, 2011].

9In essence, three main submissions were made based on the above three cases: that the Form 14 and the Admissions Summary could not be admitted into evidence through the Crisis Worker; that Youthdale’s records are not business records within the meaning of the Evidence Act (Ontario) because they contain medical opinions and do not merely record facts; and that from both Charter and fairness perspectives, it was vitally important to test through cross-examination the evidence in the Form 14 and Admission Summary which may contain the basis for the Child’s deprivation of liberty and commitment to a locked setting for up to thirty days.

10Counsel for Youthdale submitted to the Board the Supreme Court’s decision in R. v. Khan [1990], suggesting that the information could be submitted as hearsay.

11Counsel for Youthdale suggested that counsel for the Child could request a summons compelling the admitting psychiatrist to attend and give evidence; alternatively, the Board could issue a summons for the same effect. Counsel for the Child re-iterated that the onus in establishing that the five criteria are met rests entirely with Youthdale and that the onus is on Youthdale to produce the evidence to satisty this onus.

12At this point, the Board asked counsel for Youthdale if arrangements could be made for a psychiatrist to be made available anytime on the day of the hearing to testify. Counsel responded that all staff including psychiatrists were at an all-day conference, and could not be available for this hearing.

13Counsel for the Child submitted to the Board that the principled exception to the hearsay rule held that hearsay can be admitted when its reliability is beyond question and therefore does not need to be cross-examined, or when hearsay is admitted because it is impossible for the witness to attend, for instance through death or in the case of a Child too afraid to testify. Counsel suggested that the current case was not eligible for the principled exception to the hearsay rule. Counsel for Youthdale indicated that neither the admitting psychiatrist, nor any other psychiatrist, were available through unchangeable circumstances, i.e. the full-day staff meeting. He suggested that the probative value of the documents in question justified their admission. He suggested that he would enter the documents into evidence through a Youthdale staff. As well, he suggested that the Children’s Aid Society of Toronto (the “CAS”) staff has knowledge of much of the information in the documents in question.

14After a brief recess the Board ruled that it would not accept as evidence the Admissions Summary and the Form 14 without testimony from the admitting psychiatrist or another psychiatrist familiar with the Child. The Board holds that these documents are medical opinions and not business records. While the Board can admit hearsay evidence, it is not obliged to do so and should not do so in certain circumstances such as when fairness issues are at stake. In this case, procedural fairness entitles the Child the right to test the critical evidence that has led to her loss of liberty. To hold otherwise would be contrary to the high standard of procedural fairness due where liberty is at stake and would deprive the Child of her liberty contrary to the principles of fundamental justice (s. 7 of the Charter). Both the Charter protections and the administrative law duty of fairness due in this instance include the right to test important evidence through cross-examination. The onus is on Youthdale to call the appropriate witnesses to present their evidence and not on the Board or the Child to solicit this evidence. The Board adopts the more detailed reasoning it its decision: ES10-0011.

15Counsel for the Child indicated that the Child was not contesting criteria (c) and (d), but that criteria (a), (b), and (e) would be contested. The Board had to satisfy itself in any case, as to whether each criterion is met, based on the evidence led by the parties.

16The Board will not rely on any information that may have come forward during the hearing regarding the Youth Criminal Justice Act (”YCJA”) because of the privacy provisions in the YCJA. The Board does not hear this evidence without a youth court order and to the extent this may have happened through oversight in this proceeding, no information will be relied upon and all YCJA information (if any) shall be redacted from exhibits.

BACKGROUND

17The Child is a 15-year-old girl who was admitted to Youthdale on April [ ], 2012. She comes from a family that has been known to the CAS since 1997. Over the years, there have been many protection investigations. Currently, the case has been active for just over two years. Alcohol and family violence were the main issues facing this family. All but one of the referrals to the CAS came from the police.

18The Child is the third generation in a family that has experienced significant trauma. The Child’s parents were still teenagers (aged 18 and 17) when she was born. They both were brought up in families where domestic violence was frequent, and occasional sexual assaults. The Child’s father had an alcohol problem at that time, which persists today. The Child’s mother has a long-standing cocaine usage problem. The mother has for a long time suffered from depression. She takes five medications for this condition, and spends an inordinate amount of time sleeping. The Child’s mother had a traumatic childhood, and cannot provide structure in her home for the Child. The mother figure for the Child has been her maternal grandmother. The Child lived in the maternal grandmother’s home for the better part of two years, until very recently when her behaviour reached the point where the grandmother could not keep her safe. The paternal grandmother has also played a significant role in the Child’s upbringing.

19The Child’s parents are separated. The mother is the legal guardian and the father has some parental rights. There is no custody agreement between them.

20For the past year, the Child’s mother, and both grandmothers, have been seeing a counselor, as arranged by [youth services].

ANALYSIS

21The criteria that the Board must apply in secure treatment reviews are 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,

(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.

22Each of the above criteria must be met at the time of admission to confirm the Child’s placement at Youthdale. In this application, each criterion was met, as described below, and the Board confirmed the Child’s placement at Youthdale

Criterion (a) the Child has a mental disorder.

23The Board is satisfied that at the time of 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.

24The Board heard from [ ], the Family Services Worker (the “Worker”) at the CAS. She described the precipitating event of the most recent re-opening of the Protection file as being an incident on December [ ], 2009, where the Child and her younger brother were assaulted at a “party” by their father who had been drinking. The father had attempted to choke the Child, and had punched his son in the chest. At that point, the Child’s mother started going for counselling; four months later, the Child left the home, and went to live with her maternal grandmother.

25The Worker related that, in October, the Child stopped going to school. She had exhibited violent behaviour at school, and she does not want to go to school at this time.

26At the end of February 2012, the curfew that had been in place was lifted while she was again living with her mother. This gave the Child the feeling of unrestricted freedom. Suddenly her behaviour escalated significantly. At the grandmother’s home, the Child wrote in big letters very offensive words on the walls in the house. She slashed a hole in an inflatable bed; she also spread kitty litter in her bedroom and in the kitchen sink. After this incident, the grandmother felt that she could no longer care for the Child. These behaviours resulted in a succession of treatment experiences.

27The Child has few friends in the community. The Worker related that most of her friends are older, and in less-than-desirable lifestyles. Two friends are older, but still in their teens, and both are single parents. When the Child gets together with either of these two friends, they usually abuse alcohol and marijuana. The Worker related that there is a very strong suspicion, but unproven, that the Child uses cocaine, and also that she is selling drugs. The Child has one older friend, in her mid-twenties, with whom the Child has a strong bond. The grandmother knows her, and approves of this friendship, which has a calming influence on the Child.

28The Child’s behaviours were such that neither her mother nor her grandmother were able to take her and keep her safe. On March [ ], 2012, the Child was placed at [a] treatment group home in [city]. It is a highly structured setting, with psychiatric consultation readily available, and using the Dialectical Behaviour Therapy (D.B.T.) treatment approach. While there, the Child continued her pattern of bed-wetting and irregular sleep patterns, both of which she has exhibited for a number of years. Within two days of being placed, the Child managed to cut herself with both a knitting needle, and 20 minutes later, cut herself with an eye-liner applicator that she managed to fashion into a cutting instrument. The staff transported the Child to the [city] Hospital, where she was prescribed the medication Ativan, for depression and anxiety.

29The Worker related that the Child has a long history of cutting. This has been going on for some three years. The cuts are very numerous, and have left scars. To date, no cutting incidents have required stitches or hospitalization. There was one visit to [ ] Hospital emergency, where the Child was not admitted. No evidence was submitted to the Board as to the name or the discipline of the person who saw the Child at [the hospital], and who dismissed the cutting as “attention-seeking”. The Worker related that the Child arms are both so scarred from cutting – an estimated 40 or 50 scars per arm, that she subsequently started cutting on the abdomen, and when that became too scarred, that she then started cutting on her legs.

30The Worker testified that the CAS went to court on March [ ], 2012, seeking to have the Child ordered into care. The grandmother supported this application. The mother had reported to the Society that for the prior four weeks or so, the Child had been engaging heavily in drugs and alcohol, and fighting with the mother. She felt the Child was totally out of control, and that she could not ensure her safety. The court granted an order of Society wardship. However, the CAS did not apprehend the Child until March [ ], 2012, as she was AWOL at the time.

31While in residential placements and at home, the Child has exhibited a history of chronic bedwetting.

32The admission to Youthdale Crisis Unit occurred on April [ ], 2012. This was as a result of about 5 weeks of steady and significant deterioration in the Child’s behaviour, clearly showing an increase in danger to the Child and a gross impairment in her ability to make reasoned judgments. Evidence was submitted, highlighting the behaviours, as follows, based on CAS staff case notes:

a) March [ ]: Intoxicated in the community, allegedly assaulted an individual,

b) March [ ]: Child apparently said she was going home to get a gun, but no gun was found;

c) March [ ]: Incident at [ ] hospital, altercation with nurse, took items off a wall. Tried to run away while restrained;

d) March [ ]: complained of stomach pains and sore hand while intoxicated; at [group home], lit envelopes on fire in office, verbally berated staff and spit on floor for about thirty minutes;

e) March [ ]: at [treatment group home] in [city]: verbal aggression, threw phone, computer mouse, and pen at staff, threatened to throw computer at staff head, intimidated staff, self-harmed with a knitting needle cutting her arm. She cut herself with other objects, including the sharp portion of an eye-liner applicator. Transported her to hospital in [city]. She pushed escorts during this episode.

f) March [ ]: threw a can at office door, spat on floor on ongoing basis, ripped down papers from bulleting board. She said she didn’t remember any of this because she had had a beer and had smoked a single joint. She refused to take responsibility since she didn’t remember.

g) April [ ]: ran away from residence; not known where she went or what she did; police returned her to the residence;

h) April [ ]: she escalated in anger, throwing a book and a metal rod at a staff, narrowly missing his head;

i) April [ ]: threw butter knives at staff, threw the phone at staff; threatened and punched staff and spit on him;

j) April [ ]: at [residence group home], threatened: “I’m going to kill all of you”.

k) April [ ]: barricaded herself in her room, verbal aggression, threw broken cigarette at staff, admitted cutting and having suicidal thoughts, picked at her self-inflicted cuts; taken to hospital but not admitted as deemed “attention seeking”, but attempted to run away from hospital. Returned her to [residence group home] were she threatened staff and assaulted escort.

l) April [ ]: ran away from [residence group home], reportedly consuming alcohol and using marijuana.

m) April [ ]: threatened to run away from CAS worker and then go and kill her mother.

n) April [ ]: brought to Youthdale, because of the uttered threats.

33A Form 13 was duly completed at admission, and the CAS specified the grounds for the application to the Youthdale Crisis Service as follows:

“In the last 2 days, [the child] has threatened to kill her mother. She has been cutting her arms, legs + body, leaving a large number of cuts all over in the last 30 days. In our residences she has threatened staff as well as thrown objects at staff. These items include 3 knives (not sharp), a book + metal rod. She has said she has been abusing alcohol and non-prescription drugs, but I cannot verify this. She has assaulted, reportedly, 3 different escorts. When taken to a local hospital she was throwing objects + being disruptive in the emergency ward. [The child] was stating that she was going to run away immediately today and was saying she was going to kill her mother. As a result a justice of the peace authorized a Form 2 to allow for the police to transport [the child] to Youthdale.”

34A second worker from the CAS also gave testimony to the Board. [ ] is a long-term worker (20 years) at the CAS. He has only known the Child since April [ ], 2012. That day, he was involved in her transfer from [city] back to [another city] and placement at the [residence group home]. He offered direct testimony of interaction he had with the Child and his recollection of what the Child told him at various times. He also was part of the discussion at the CAS on April 23 which resulted in the decision to make application to the Youthdale Crisis Unit.

35A 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 heard from two CAS staff about behaviours that reflect a substantial disorder of emotional processes, thought or cognition which grossly impairs the Child’s capacity to make reasoned judgments. There were multiple and repeated instances of behaviours exhibited by the Child while in the care of her mother, and while she was in various placements. To dismiss the multiple incidents of cutting, physical aggression towards staff, and assault of police officers as mere attention-seeking is just not credible. Rather, it demonstrates grossly impaired judgment, given the escalation in the severity and frequency of her behaviours. Many of these behaviours are high-risk to the Child in that they are inappropriate and dangerous. The lack of judgment, the absence of insight, and the inability to learn from past difficulties all are symptomatic of her disorder.

36During the last few months the child has been rapidly decompensating, as evidenced in her behaviours of aggression, substance abuse, running, not attending school, and being enveloped in an all-encompassing sense of hopelessness. Her severe sleeping difficulties, her self-destructive threats and her carrying out those threats, as well as severe threats to harm others clearly are affecting her daily functioning. Combine this with her difficulties to engage in counseling and the inability of several mental health services to contain her, and the Child is at extremely high risk for future decompensation with severe results and even more unsafe and risky behaviour.

37Although the Board did not hear direct evidence regarding a current diagnosis, the weight of the behavioural evidence provided by the witnesses was sufficient to conclude that the Child suffers from a mental disorder. The Board finds that the pattern of behaviours exhibited by the Child in the months before her admission to Youthdale which are outlined in the preceding paragraphs, on a balance of probabilities, clearly demonstrates that she has a mental disorder as defined by the Act.

38The Board was satisfied that criterion (a) was met at the time of the time of admission.

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.

39The Board was satisfied that the Child has, as a result of the mental disorder, attempted to cause or by words or conduct, made a substantial threat to cause serious bodily harm to other persons: her mother, and a staff person at [treatment group home].

40The Board heard extensive direct testimony from the Worker, who has been involved with the Child and her family since November 2011. She presented extensive evidence based on her observations and interactions with the Child and her family, and related the experience of other professionals who have worked with the Child in many residential placements.

41The Child grew up in a family where domestic violence was common, and now adopts this as a manner in dealing with frustrations. The Child received counselling in the “[ ]” program, at the [centre], between January and March of 2010. The evaluation of her involvement indicated that there was a measure of success, in that she did attend the session as planned; however, the evaluation also indicated that the treatment program did not curb her level of aggression. This aggression continued, and took the form of repeated incidents of physically pushing her mother, slamming doors, and angry yelling at various people. This context is relevant because it contributes to the greater likelihood that the Applicant would have followed through on her threats at the relevant time.

42On March [ ], 2012, during her placement at [treatment group home], the Child’s aggressive behaviour included throwing a telephone at a staff, and threatening a staff with the prospect of “smashing the laptop on your head”. The Board takes the reference to smashing of a lap top on someone’s head as a threat to cause serious bodily harm and not just superficial or transient physical harm.

43On April [ ], 2012, the Child threatened to kill her mother. The Child did not have a gun in her possession at this time, but she threatened that she could get a gun, and that she had the connection to access a gun if she wanted to. This threat was sufficiently credible for the police to assist in her admission to the Youthdale crisis unit two days later.

44The Board finds that, as a result of the mental disorder, the Child has made substantial threats through her actions and her verbalizations to cause serious bodily harm to her mother and a staff person. Of concern is the recent significant deterioration of the Child’s behaviour and the increase in intensity of the behaviours. The Board relies in this regard on the evidence described under criterion (a). This escalation is significant in terms of increasing the likelihood at the time of admission that there was a real threat of serious bodily harm to her mother and the staff person because of the increased severity and unpredictability of the Child’s behaviours.

45Based on this evidence, the Board was satisfied that criterion (b) was met.

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.

46The Board was satisfied that the secure treatment program would be effective to prevent the Child from causing or attempting to cause serious bodily harm to herself or others.

47[ ] is a [staff member] at Youthdale, and has been with the Crisis Support Team for 5 years. She testified on behalf of the treatment team at Youthdale staff.

48The unit is locked, and the program is such that youth do not have any access whatsoever to sharp objects such as glass shards, knives, scissors, and lighters. [The staff member] testified that at Youthdale, they could keep the Child safe since she would be in a locked setting with continuous observation to ensure that she does not harm herself.

49The Child has on a number of occasions threatened that she would kill her mother. Placement at Youthdale will prevent her from causing or attempting to cause serious harm to her mother. As well, the self-harmful behaviour that has been escalating since February will be controlled while at Youthdale.

50The 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.

51The Board was satisfied that treatment appropriate for the Child’s mental disorder was available at Youthdale.

52The Youthdale Crisis Support Team worker described the services that are available on the secure crisis unit, namely a psychiatrist on site and on call, a neurologist available if required, a nurse on duty on the unit, psychology and social work staff, a structured program with clear routines, as well as assessment and group and individual therapy. Based on a thorough evaluation, medication will be prescribed or adjusted based on the Child’s needs. The Child, like many youth came to the crisis unit after using illegal drugs and alcohol. A major emphasis in the crisis unit is to try to break that substance abuse habit by getting at some of the underlying issues that are troubling the youth.

53Professional staff are available to provide individual therapy for the Child as well as group therapy to assist her in finding ways to safely cope with her feelings and gain control from within over her conflicted behaviours. As well, an assessment at the sleep clinic could be arranged to assess any issues with regards to the Child’s difficulties with sleep.

54The 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.

55The placement history of the Child demonstrates that there is no other setting at this time that is appropriate for the Child’s mental disorder. Listed below are the settings where the Child was referred to, or was placed. Most settings listed are voluntary placements, and most have indicated that they would not be able to contain the Child until her behaviour was somewhat stabilized. Every open and voluntary setting where she has been placed has broken down because of out-of-control behaviour and serious threats to self and others.

[a] [Centre] “[ Program ]” (attended two months, not intensive enough for the Child’s needs.);

[b] [Youth services] Day Treatment Program (could not maintain her because of behaviour and risks the Child posed);

[c] [Another centre], a Children’s Mental Health Centre (placement declined by the Child);

[d] [ ], a treatment group home in [city]; (will not take her back);

[e] [Residence] – turned her down at this time because too difficult to handle in open setting;

[f] [Residence group home] (CAS) April [ ] (not able to contain the Child);

[g] [Centre] (a Children’s Mental Health Centre, with a secure crisis unit, similar to Youthdale’s crisis unit);

[h] [Group home] (could not contain her);

[i] [Area-based Centre] Day Treatment Program (after three days, she refused to return to the program);

[j] [Centre] (a Children’s Mental Health Centre, declined not to admit her until she was stabilized).

56The second worker from the CAS described how the Child had “blown apart” her placement at two very good residential settings, [treatment group home], and the [residence group home] operated by the CAS. He has seen the Child’s escalating behaviour, heard her threats on a number of occasions to kill her mother, and realized that the mother and the grandmother would be totally incapable of handling the Child with the level of behaviour she is now exhibiting.

57On April [ ], 2012, the CAS held a major case planning conference concerning the Child. The staff from the Placement Department and the staff from [the “Committee” a centralized committee for accessing residential services] met. The Committee has full knowledge of which settings in the residential system might be able to provide a treatment program and offer a place of safety for the Child. The Youthdale program at [ ] indicated that they would need the Child to be more stabilized before they would be able to take her. The Committee suggested that the Crisis Unit at Youthdale was the only option for the Child at this time. In their opinion, no setting in the system would be able to take the Child in her present state, and provide both safety and effective treatment. A referral was made that day to the Crisis Unit.

58The Board was satisfied that no less restrictive method of providing treatment appropriate for the Child’s mental disorder is appropriate in the circumstances. This is so because the Child’s behaviour prior to admission was escalating, included non-compliance with programming and extreme, aggressive behaviours as described under criterion (a) and criterion (b). Without a locked setting, there is no option for appropriate treatment for the Child. A less restrictive environment is not appropriate to provide treatment given the severity of the Child’s threats and actions. The Board is satisfied that criterion (e) was met.

CONCLUSION

59Pursuant to section 124 (13) of the Act, the Board was satisfied that the criteria in subsections 124 (2) (a) through (e) have been met and therefore dismissed the application of the Child, under section 124(9) of the Act, on May 5, 2012.

FINAL ORDER

60Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any documents or information shared by the parties must be used only for the purpose of the hearing of this application by the Board.