C.M. v. Youthdale Treatment Centres, 2014 CFSRB 1

CHILD AND FAMILY SERVICES REVIEW BOARD

C.M.

v.

Youthdale Treatment Centres

REASONS FOR DECISION

Date: January 7, 2014

Citation: 2014 CFSRB 1

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

INTRODUCTION

1This is an application by C.M. (the “Child”) who is now 14 years old asking the Board to review the decision made by Youthdale Treatment Center (”Youthdale”) to admit him in its Secure Treatment Program. The Child was admitted to Youthdale on December 5, 2013. The [local children’s aid society] (“Society”) sought the Child’s admission to Youthdale because of his chronic running from placements, high risk behaviour in the community, lack of interest in his life and self-harm behaviour. The Board heard the application on December 12, 2013.

2The Board must decide, on a balance of probabilities, whether each of the criteria set out in subsection 124(2) of the Child and Family Services Act, R.S.O. 1990 c.C.11, as amended(the “Act”) were met at the time of admission. Youthdale’s position is that all five criteria had been met and that the application should therefore be denied.

3The Child’s position is that criteria (a), (b), and (e) had not been met and that he should be released.

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 ISSUES

5The Office of the Children’s Lawyer (OCL) appeared as Counsel for the Child. The OCL objected to the admission into evidence of three documents tendered by Youthdale: the Emergency Admission to Secure Treatment Program; the Youthdale Psychiatric Crisis Service Admission Summary; and the [ ] Hospital chart. None of these documents were authored by the Psychiatrist presented as witness by Youthdale, [the Psychiatrist]. The first two were signed by the admitting psychiatrist of Youthdale and the last by a [hospital] Psychiatrist. Given the Child’s liberty interests were at stake the OCL argued the Child had the right to test all the evidence through cross-examination. The OCL relied on the Board’s established case law on that issue.

6Counsel for Youthdale informed the Board that the admitting psychiatrist was not available, not even on the phone. Counsel submitted that the OCL could have asked the Board to summon the admitting psychiatrist if he wished to cross examine him on the documents. She asked the Board to admit the documents and decide what weight to be given to them. Counsel also indicated that the OCL should have filed a Notice of Constitutional Question. The position of Youthdale Counsel was that pursuant to s.15 of the SPPA, the Board had an obligation to admit hearsay evidence because the best interests of the Child were at issue.

7In the circumstances the Board refused to admit the three documents. [The Psychiatrist] testified that he had no role in the admission of the Child and had no supervisory role with respect to the admitting psychiatrist in this case. When testifying, he gave the incorrect name of the admitting psychiatrist. He had not seen any of the documents at issue prior to the Child’s admission and had no information about the Child in the last year that could provide him with some clinical insights into the Child’s state of mind at the time of the admission.

8There is nothing to distinguish this case from the circumstances in issue in S.I. v. Youthdale Treatment Centres, 2010 CFSRB 30 at paras.13, 26, 29 and 32, and the Board adopts and applies those reasons. Specifically, in S.I. the Board found:

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. (...)

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. (...)

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. (...)

The Board could reach this same conclusion under a Charter analysis or procedural fairness analysis. The Board can exclude the evidence under s. 24 of the Charter or by virtue of its discretion to control its own proceedings and to refuse to admit any evidence that would lead to a denial of procedural fairness. The language in section 15 of the SPPA is permissive: the Board may admit the document. The Board is not compelled by s. 15 of the SPPA to admit the documents; it merely has the discretion to do so. In refusing to do so, the Board is not finding s. 15 of the SPPA unconstitutional. Rather, the Board is applying the law, namely the Charter and the prevailing administrative law principles as established by the courts. (...)

9As that case noted, the best interests of the Child are served by the legislated review process, the application of the Charter and the protection of procedural fairness where liberty is at stake and these considerations guide the Board’s use of discretion to admit hearsay evidence under the SPPA.

BACKGROUND

10The Board heard the testimony of the Psychiatric Crisis Worker from Youthdale and the Child and Youth Worker from the Society. The Child did not testify.

11The Child is a 14 year old Crown Ward and has been in the care of the Society since he was 9 years old except for a brief period in the fall of 2013 where he resided with his grandmother on an extended visit.

12The Society initially placed the Child in a number of different foster home placements; all broke down. In March 2013 he was placed in Group home A. This placement started breaking down in May of 2013 when the Child started running away from the placement for 2-3 nights at a time. During these periods, the Child regularly went to his grandmother’s home and she contacted the Society to report it. On other occasions, the Society was unaware of the Child’s location as he did not contact anyone and did not have a cell phone to be reached. The Society was increasingly concerned about the running episodes as the Child disclosed leaving the city to attend in Town A where he had met a friend. The Society did not know how he went to Town A or who he stayed with during these periods.

13In June 2013, the Child was moved to Group home B. The Child initially adjusted well to the new placement and reported enjoying residing there. He started at a new school in September and, there as well, seemed to adjust well. He participated in extracurricular activities and attended regularly to speak with the school social worker.

14Around the end of September, some incidents occurred at school and the group home and, as a result, the previous running behaviours started to occur again. The Child indicated he did not want to reside at the Group home B any longer. This is when he was sent to stay with his grandmother on an extended visit for about 5 weeks. That placement also resulted in running behaviour which the grandmother could not handle as she indicated she was very worried about what he was doing when out in the community.

15He was then placed in November 2013 in a receiving foster home as a temporary placement for up to 3 months. At that time, the Child disclosed he usually walked in a certain neighbourhood when he was out all night. The Child also disclosed having tried marijuana and alcohol but did not disclose ongoing substance use. The Child did not take his prescribed medication consistently when he was running. The Child’s behaviour in this last placement very quickly deteriorated similarly to the previous ones. The Child Services Worker testified receiving daily telephone calls from the school social worker indicating the Child skipped school or attended late and tired. The Child continued to run away from the foster home.

16The events of November 27 to 29 led to the Child’s Emergency placement at Youthdale. The Child Services Worker testified she was receiving daily calls from the school social worker reporting the child was running every night and was skipping school.

17The morning of November 27, the child had a fight with the boy he shared a room with at the foster home, when his roommate told him to get ready to get to school in the morning. The boys exchanged punches. The foster mother was unable to separate them and requested the assistance of the foster father to do so. After the boys had left home for school, the foster mother told the Child Services Worker the Child looked enraged. It was decided the other boy would leave the foster home and the Child would remain there.

18That afternoon, the Child attended the Child Services worker office and told her he did not want to return to the foster home because he was embarrassed by the morning fight. After discussion, he agreed he would return to the foster home but later that night.

19The next morning, the foster mother walked into the Child’s room and observed blood on the sheets and saw him on the floor next to his bed asleep. She told the Child Services Worker the Child had cuts all over his arms and he had carved the letters DONE. The Child refused to attend at the hospital and told the foster mother he would run away if she called an ambulance. The Child then washed up and went to school.

20When he arrived at school, he went to the social worker’s office and she let him sleep as he looked tired. He told the social worker he was tired, could not take it anymore and just wanted to sleep. He also discussed he might considering drinking bleach as he found cutting himself painful.

21The school later decided to call the police to bring the Child to the hospital because of their concern he may attempt suicide over the weekend. The Child Services Worker met him there and he was admitted later that evening to the Adolescent Psychiatric Ward and remained there until December 5, 2013 when he was transported to Youthdale by ambulance.

ANALYSIS

22The 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.

23Each 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.

24The 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.

25The 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.

26Further, 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 his behaviour, the evidence did not indicate that his behaviour was so severe as to indicate that his capacity to make reasoned judgements was grossly impaired. The Child was persistently AWOL and thought to be engaged in risky behaviours such as the use of drugs and alcohol while AWOL, however, no direct evidence was presented in that regards. The Child never returned home intoxicated or under the influence of drugs and there was no evidence of this behaviour at school. The Board finds that the behaviours recounted by the CSW who was told of it by the school social worker or the foster mother, may indicate that the Child had bad judgement; however, it does not imply that the Child had a mental disorder.

27The Child engaged in one incident of self-harm a week before admission but it was not of such an extent as to require immediate medical attention, in fact, he attended at school that morning. There was some evidence of emotional disregulation that led to an exercise in bad judgment. However, there was no evidence to put this into context in terms of whether it was a reaction to the Child’s difficulties in school and with a teenage crush that did not go well or what it meant in terms of the Child’s walking around the city at night. The Child’s Worker did not explore what the incident meant to the Child or work through his reasoning or with him. This might have assisted the Board in its determination. Overall, the Board was left with a lack of information and of any clinical analysis of the behaviours that took them out of the realm of a “cry for help”, language used by the Child’s worker.

28The Board finds that criterion (a) was not met.

CONCLUSION

29Pursuant 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 December 12, 2013.

CONFIDENTIALITY ORDER

30Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings.