A.T. v. Youthdale Treatment Centres, 2012 CFSRB 49

CHILD AND FAMILY SERVICES REVIEW BOARD

A.T. v. Youthdale Treatment Centres

REASONS FOR DECISION

Date: October 30, 2012

Citation: 2012 CFSRB 49

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

INTRODUCTION

1This is an application by A.T. (the “Child”) born [ ] [ ], 1997 for a review of her 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 October 19, 2012 and relates to the Child’s admission to Youthdale on October 15, 2012. The hearing was held on October 23, 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 criteria (a), (b), and (e) 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 finds that the Child did not meet criterion (a) as set out in s. 124(2) that the Child has a mental disorder. As such, the Board was obliged to release the Child and the Board’s reasons do not address criteria b) through e).

PRELIMINARY MATTERS

5Counsel for Youthdale introduced a document disclosure package to be submitted into evidence at the beginning of the hearing. Counsel for the Child objected to the admission of the Form 14, Admission Summary, and Statement of Reasonable Grounds on the basis that these documents contain the very evidence on the decision that the Board must make and that the psychiatrist who authored these documents will not be available to testify and be cross examined on this evidence. Counsel for the Child argued that these documents should not be admitted since they were not business documents and contravened the Child’s Charter Rights and the principles of procedural fairness. She cited case law to support her arguments: K.L. v. Youthdale Treatment Centres (CFSA s. 124), 2011 (para 12); J.W. v. Youthdale Treatment Centres (CFSA s. 124), 2011 (para 14); B.R. v. Youthdale Treatment Centres (CFSA s. 124) 2010, (para 10).

6Counsel for Youthdale disagreed with the case law and asked the Board to consider evidence which was of great value to add to the fullness of the facts for the Board to make an informed decision. The Child’s liberty was at stake but evidence of much needed treatment was not before the Board.

7The Board asked Counsel for Youthdale to check on the possibility of the admitting psychiatrist appearing at the hearing. Counsel for Youthdale stated that the psychiatrist was busy treating children and was not available to give testimony; however, his written evidence was available and asked the Board to admit it and weight it accordingly.

8The Board, applying its reasoning in S.I. v. Youthdale Treatment Centres (CFSA s.124), 2010 did not admit the Admission Summary, Form 14 and Statement of Reasonable Grounds, into evidence on the basis of the Charter and the duty of fairness. The Board adopts its reasons in that decision and notes the following paragraphs:

As a preface to both evidentiary rulings, the Board reiterates that the onus in establishing that the five criteria are met rests with Youthdale. The onus is on the balance of probabilities. There is nothing in the CFSA which permits the Board to make a determination on a summary evidentiary basis. This means that it is Youthdale’s responsibility to ensure that important witnesses who have evidence about the criteria are available. This is particularly the case regarding clinical witnesses who make the assessment about the existence of the criteria as a pre-requisite to admission and who can assist the Board in making a determination in the best interests of the child….. (para 13)

With respect to the documents at issue, the Form 14 and the Admission Summary, the Board finds that the documents are not business records. Section 35 (1) of the Evidence Act (Ontario) defines a business record as any writing or record made of any act, transaction, occurrence or event if made in the usual and ordinary course of any business, provided it was usual to make such a record. A psychiatrist’s opinions about why a child should be held in a locked facility and the factual basis for those opinions are not a record of an act, occurrence or event….. (para 26)

The Board is satisfied that where the physical liberty of a child is at stake, that child should be accorded a high level of procedural fairness and due process. The principles of fundamental justice which include procedural fairness and the duty of procedural fairness standing alone would dictate that the Child should be given the option of testing the evidence of the person responsible for depriving her of her liberty…. (para 29)

BACKGROUND

9The Child is 15 years old and was living with her mother, stepfather and two half-siblings. In May of 2012, her mother put her in the care of the (the “Society”) under a temporary care agreement due to her inability to handle the Child’s persistent absent without leaves (“AWOL”). Since October [ ], 2012, the Child has been under an Interim Society Wardship.

10The Society initially placed the Child in Group Home “A” which is a receiving home to assess the Child’s needs. She was then placed in Group Home “B” at the beginning of August 2012. Group Home “B” was recommended by the Placement Department at the Society because of its ability to handle girls who were prone to AWOLs. The Child continued with her AWOLs even at the second group home and was taken to Youthdale for admission.

ANALYSIS

11The 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.

12Each of the above criteria must be met at the time of admission to confirm the Child’s placement at Youthdale. In this application, the Board was not satisfied that the Child had a mental disorder and thus the Board released the Child.

Criterion (a) the Child has a mental disorder.

13The Board is not 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.

14[ ], Children’s Service Worker (the “CSW”), testified to the behaviours of the Child that led to her admission to Youthdale. The CSW’s main concern was with the Child’s persistent AWOLs which put the Child in danger. The Child came into the Society’s care on May [ ], 2012 and went AWOL for periods of several days to several weeks approximately 11 times. She was always returned by police and seldom returned on her own. While the Child was AWOL she reportedly used drugs, alcohol and engaged in unprotected sex. In September, she went AWOL in her pajamas and socks and was found in a neighbour’s backyard in the rain. The Child has told the CSW that she has smoked marijuana, has had unprotected sex and has told other staff members that she drinks alcohol. The Child has also revealed that she has slept under a bridge. After being AWOL for a week, the Child lost 9 pounds. The Child has reported that she blacked out during one of her AWOLs and staff managed to convince her to see a doctor.

15The Group Home attempted to put treatment in place but could not follow through because the Child was constantly AWOL and was not willing to follow through with the goals for treatment. They tried to set up drug counselling and art therapy at the [hospital] but this did not happen since the Child was AWOL. In June she was found in a car driven by a youth without a licence.

16The Child testified that she was very close to her mom, brother, sister and step dad. Her mom and step dad are splitting up. If it was up to her, she would go to live with her step dad whom she believes is trying to get custody of her. When she went AWOL, she would go to the homes of friends or to her step dad’s home, never to strangers. She would take the GO train and walk to her friend’s home. She was sleeping in the friend’s backyard under an awning when it was raining because it was late and she did not want to wake them up. When she slept under a bridge sometime in May of 2012, she was with a group of friends. She claimed she only took alcohol once sometime in January of 2012 when she was living with her aunt. She did not want treatment for alcohol use because she had only used it once and did not enjoy it. In June of 2012, she was in a car with her boy friend who did not have a license but could drive.

17The Board finds that there was insufficient evidence before it to conclude that the Child had a mental disorder within the meaning of the Act. Youthdale did not put before the Board the testimony of its admitting psychiatrist and his medical diagnosis that the Child has a mental disorder. Nor was there a medical diagnosis of any kind before the Board that could be evidence that the Child had a mental disorder at the time of admission.

18Further, the behavioural evidence before the Board did not establish the existence of a mental disorder. The Act is specific in defining a mental disorder as a substantial disorder of emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgements. While the Child showed some poor judgement in her behaviour, the evidence did not indicate that her behaviour was so severe as to indicate that her capacity to make reasoned judgements was grossly impaired. The Child was persistently AWOL and engaged in risky behaviours and the use of drugs while AWOL. The Board finds that the behaviours recounted by the CSW may indicate that the Child had bad judgement; however, it does not imply that the Child had a mental disorder. In the Intake Review submitted by the Crisis Team Worker, the Child was described as being oppositional when she “will often attempt to maintain control of her program by simply stating, no, in a calm, clear and direct manner”. During the “triggering stage” the Child would “calmly, clearly, and directly object to an expectation or direction to which she does not agree by stating, no”. The Board finds that this type of behaviour does not indicate that the Child’s emotional processes, thought or cognition was grossly impaired.

19The Child was not in a state of crisis leading up to her emergency admission. The CSW stated that the Child was not taken to a hospital because they would not have been able to hold and assess her due to the way she presented. The Child was told of Youthdale on the morning of the admission and she went willingly. There were no incidents of self harm, threats of self harm, or threats of harm to others in the immediate time leading up to admission. Such behaviours might have been indicative of a mental disorder, but they did not occur.

20The Board finds that criterion (a) was not met.

CONCLUSION

21Pursuant to section 124 (13) of the Act, the Board was not satisfied that the criterion 124 (2) (a) has been met and, therefore released the Child under section 124(13) of the Act, on October 23, 2012.

CONFIDENTIALITY ORDER

22Parties 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.