CHILD AND FAMILY SERVICES REVIEW BOARD
E.G. v. Youthdale Treatment Centres
REASON FOR DECISION
Date: July 13, 2015
Citation: 2015 CFSRB 31
Indexed as: E.G. v. Youthdale Treatment Centres (CFSA s.124)
INTRODUCTION
1(The “Child”), made an application to the Child and Family Services Review Board (the “Board”) to review her June 25, 2015 emergency admission to the Secure Treatment Program at Youthdale Treatment Centre. The Child took the position that the statutory criteria (a) (b) and (e) for emergency admission contained in subsection 124(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (the “Act”) were not met at the time of her admission. The mother sought her admission to the secure program because of the Child’s frequent mood swings, her aggressive and threating behaviours and her safety concern for her younger daughter and herself.
2From the evidence presented the Board was not satisfied that, at the time of the Child’s admission criterion (b) and criterion (e) were met as required in subsection 124(2). For that reason the Board granted the application for her release on July 2, 2015. The Board’s reasons address criterion 124 (2) (a) (b) and (e) because the Child conceded criterion (c) and (d) of the Act.
Preliminary Issues
3Counsel for the facility requested that the Child not be present at the hearing because the mother was concerned about the evidence to be presented given her daughter’s age. The mother also feared the possibility that the Child would become “destructive” at home if she was released.
4The Child’s lawyer argued that it was the Child’s hearing and that she had already seen the evidence that would be presented. She also stated that the Child was the instructing client and she had a constitutional right to be present.
5The facility did not present any clinical evidence to prove that the Child’s attendance at the hearing would be detrimental to her and that it was not in her best interest to be present.
6The Board ruled that unless the Child exhibited symptoms of distress or clear uncontroverted evidence was presented to the Board that the hearing was detrimental to the Child, it would proceed with the Child present and monitor her responses so as to take appropriate action if necessary.
7Counsel for the Child indicated that she would object to the admission into evidence of the “Emergency Admission to Secure Treatment Program” and two other medical reports dated 2013 by [Doctor 1] and [Doctor 2] unless the authoring doctors were available to be cross-examined. She also objected to a May 29, 2015 document from a community organization for the same reason. Counsel for the Child stated that it was vitally important to test the evidence through cross-examination to ensure the Child’s liberty rights.
8Counsel for the facility advised that the admitting psychiatrist was not available to be a witness at the hearing.
9The Act places the evidentiary burden on the facility to establish that the five criteria for admission are met. The onus is on facility to call appropriate witnesses to present their evidence and not on the Board or the Child to solicit this evidence. The admissibility of documentary evidence in the absence of the author of the documents is set out in S.I. v. Youthdale Treatment Centres (CFSA s.124), 2010 which is quoted below:
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. (Paragraph 13)
10The Board ruled that the documents must be tendered into evidence by the author or a person with knowledge of the documents to ensure that the Child will have the opportunity to test the evidence through cross-examination. The Child’s liberty interest was directly impacted by the Admission Summary and given the best interests of the Child is the paramount principle under the Act, [s. 1 (2)], the procedural safeguards in the Act for the Child [s. 114, 115 and 124] and the extraordinary nature of the secure treatment provisions, it would be procedurally unfair to permit the introduction of the very evidence that forms the reasons for the loss of her liberty, without permitting the testing of that evidence through cross-examination.
11On receiving the ruling, Counsel for Youthdale arranged for the Director of Psychiatric Crisis Services at the facility to testify and tender the admission evidence. The Board ruled that as the supervising psychiatrist the Director could give evidence from his clinical knowledge of the diagnoses and the criteria that must be met before a child is admitted to the secure unit and the Board would give his evidence the appropriate weight. He was also a member of the prioritizing preadmission team.
BACKGROUND
12The Child is ten years old and she lives with her mother and her [young] sister. The Child’s mother and father are separated and her older [2] brothers live with the father. The mother testified that she moved [ ] [ ] in 2014 to separate herself from her abusive, negative family relationships.
13The mother stated that she suffers from a mental illness which impairs her memory, therefore; she was unable to remember some information clearly, including the spelling of her name. She also stated that there were many cases of mental illness in her family.
ANALYSIS
14Section 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).
15Section 124(2) sets out the criteria all of which must be met at the time of admission:
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 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.
16The Board must decide whether each of the relevant criteria was met at the time of admission on the balance of probabilities.
Criterion (a): the child has a mental disorder
17The Director testified that he was involved in the Child’s case prior to her admission to the facility having reviewed her information with the Crisis Team on multiple days while they were prioritizing her admission. He believed that the Child needed to be assessed for the following disorders;
- Post Traumatic-stress Disorder
- Behavioural Dysregulation
- Tourette’s Syndrome
- Depression
- Attachment Disorder
18The Director’s evidence was that prior to her admission he had not met the Child, he had not attended her admission nor had he spoken to her doctors. He made his diagnosis based on the evidence presented to him by his team. He described the Child as emotionally unstable and he noted that she misperceived things and had difficulties with social interpersonal boundaries.
19The mother testified that when the Child was angry she would hit herself in the face, use objects to dig at herself, smash her head against the wall and she caused property damage to the home.
20She testified that her daughter has become very emotional and was suffering from mood swings. The Child ran away from home and had falsely accused her mother of hurting her. At school she had bullied other children and threatened to hit the principal. The mother stated that the Child also pulled out her hair, and she used her fingers to dig her ears until there was blood.
21The Child had difficulties sleeping because she heard voices and saw things in the night. The mother testified that the Child was very restless during sleep and she would cry and wake up then go back to sleep. [Medication] had been tried without success but white noise seemed to have a calming effect on the Child. The mother also stated that her daughter was sleeping with a knife under a pillow on the couch.
22The mother testified that the Child had attempted to drown her younger sister while they were having a bath and playing in the tub. After this incident she was placed in foster care on May 23, 2015 for three weeks. The foster mother became worried about the safety of the younger children in the home and could not provide the level of supervision necessary for the Child, so she was returned to her home.
23The mother testified that the Child had been diagnosed with Tourette’s syndrome depression and ADHD. The Child attended counselling with an Art Therapist until the family moved and could no longer travel to their former home [community] because of transportation issues. The Child had discontinued taking her medication in 2014 because she became anorexic.
24The Child Protection Worker (Worker) testified that she attended the Child’s monthly school meetings. The Child had reported that the mother hit her and threatened her with a knife. She also made an allegation that another student had choked her while the teacher watched. These reports were not verified. After the alleged drowning incident and the younger daughter’s report that the Child had hit her causing a bruise, the Society apprehended the Child. The worker testified that the family received many services from their previous [local] Society and that the file was still open in that jurisdiction as it had not been transferred. She also testified that the foster home was not a good match and it was felt that the other children could be at risk so the Child was returned to her mother’s care.
25The Family Enhancement Child Protection Worker testified that she met the family mid to the end of May 2015, to assist with the reduction of tension in the home so that the Child could return to live with her mother. She saw the family three times in one week to get services in place and had worked with the Child on hygiene issues and house rules. She also testified that on her first day back at school the Child left for no apparent reason and went to the police. She told the Protection Worker that it comes into her head and “she just does it”. The Protection Worker testified that the Child had been referred to a psychiatrist by the family doctor and she was waitlisted with a children’s mental health organization.
s.112 “mental disorder” means a substantial disorder of emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgments.
27The Director testified that in his opinion the Child was emotionally unstable and she misperceived things; however, his diagnosis was as a result of information from the crisis team and not from first hand observation.
28The mother testified that the Child had mood swings and when she was angry the Child would hurt herself and cause property damage as well as she bullied other children and had tried to hide a knife in the home. The mother stated that the Child had attempted to drown her younger sister in the bathtub and the Child had difficulties sleeping because she heard voices and saw things in the night.
29The Board did not receive any first hand medical evidence from the facility regarding the Child’s mental illness; however, it accepted the behavioural evidence of the mother and the workers and finds that the actions of the Child demonstrated a substantial disorder of emotional and thought processes which grossly impaired her capacity to make reasoned judgments. The Board heard evidence that the Child’s thought and emotional processes were so impaired that she ran away from her home and she made poor social decisions at school and at home. She experienced hallucinations, anxiety and had sleeping difficulties as well as mood swings. Her escalating emotional dysregulation and the volatile behavioural evidence presented demonstrated that the Child had a substantial disorder of her thoughts and emotional processes at the time of her admission to the facility which grossly impaired her capacity to make reasoned judgments.
30The Board finds that there was sufficient evidence before it to conclude that the Child had a mental disorder within the meaning of the Act.
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 herself or others.
31The mother testified that the Child had attempted to harm her sister by drowning her in the bath tub. She had stepped away for a minute when the incident occurred and on her return she saw the Child holding her younger sister under water and smiling. She believed that the Child was not playing with her sister and she was a serious threat to her sister. No medical intervention was necessary and the Child was subsequently placed in foster care because of the mother’s concerns. The foster mother also voiced concerns around the safety of the young children in her home and her inability to supervise the Child and as a result that placement broke down.
32The mother found a knife under the couch and believes the Child hid it there although she had not attempted to use it to harm anyone. The Board heard evidence that the Child hurts herself by hitting; scratching and biting which did not lead to medical interventions. She denied the allegation that she had attempted to drown her sister although her mother believes otherwise. The mother testified that the younger child did not require medical attention after the incident. The Board found from the evidence presented that the Child did not cause or make substantial threats to cause serious bodily harm to herself or others.
33The Board was satisfied that criterion (b) was not met.
Criterion (e) no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances
34The Child had engaged with prior treatments in a less restrictive setting in her former [community] where she saw an Art therapist weekly. The mother testified that she was waitlisted for services in their new home town because she was no longer able to take the Child back to her former therapist. The Society testified that psychiatric services were available for the Child through a community organization and an assessment had been ordered.
35Section 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 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.
36The Board was not satisfied that no less restrictive method of providing treatment for the Child’s mental disorder was appropriate. A psychiatric evaluation of the Child was not completed prior to her admittance to the secure unit although it had been ordered and Art therapy had been discontinued leaving the Child without supports. The Board heard no evidence that the Child had refused treatment in an outpatient setting, rather; she had enjoyed some success in Art therapy. Further a residential placement was being explored for the Child prior to her admittance to the locked facility which would have provided treatment in less restrictive environment.
CONCLUSION
37Pursuant to section 124(13) of the Act, the Board, having satisfied itself that criteria (b) and (e) in subsections 124(2) have not been met, released the Child on July 2, 2015.
CONFIDENTIALITY ORDER
38Pursuant 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, except with an order of the Court or the Board, as appropriate.
NATHALIE FORTIER
_____________________
Nathalie Fortier
Presiding Member
LORNA KING
_____________________
Lorna King
Board Member
ALINA LAZOR
_____________________
Alina Lazor
Board Member
Dated in Toronto, Ontario on this 13^th^ day of July, 2015.