WARNING

The court hearing this matter directs that the following notice be attached to the file:

The court has ordered the exclusion of the public from the hearing of this case under subsection 135(2) of the Courts of Justice Act and has expressly prohibited the disclosure of any information that could identify the youth. This subsection and subsection 135(3) of the Courts of Justice Act, which deals with the consequences of failure to comply with subsection 135(2), read as follows:

135.— (2) EXCEPTION — The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

(3) DISCLOSURE OF INFORMATION — Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information.

Subrules 31(5) and 31(6) of the Family Law Rules state as follows:

31.— (5) Contempt orders. — If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

(6) WRIT OF TEMPORARY SEIZURE — The court may also give permission to issue a writ of temporary seizure (Form 28C) against the person's property.

Court Information

Ontario Court of Justice

Date: February 13, 2018

Court File No.: Halton 48/18

Between:

Centre for Addiction and Mental Health, Dr. Jennifer Nguyen Applicant

— AND —

CS and JS Respondent Parents

Before: Justice Victoria Starr

Heard on: February 6, 2018

Reasons for Judgment released on: February 13, 2018

Counsel

Kathryn Hunt — counsel for the applicant

CS and JS — on their own behalf

James Frost — counsel for the Office of the Children's Lawyer, legal representative for the child

VICTORIA STARR J.:

INTRODUCTION

[1] The applicant psychiatrist, Dr. Nguyen, on behalf of the Centre for Addiction and Mental Health ("CAMH"), applies for 16 year old JS's committal to the secure treatment program at Syl Apps for a period of 180 days.

[2] JS's parents (the respondents) as well as the administrator of Syl Apps consent to the order.

[3] JS does not consent. She asks this court to dismiss the application.

BACKGROUND

[4] JS is the adopted daughter of the respondents. She has a very conflicted relationship with her mother.

[5] JS has experienced two very traumatic events. First, her biological mother died of an overdose in October 2016. It is unclear whether this overdose was intentional. Second, in August 2016 she was robbed of her wallet by an unknown man wielding a knife while she waited for the TTC subway.

[6] JS has ongoing mental health difficulties including her suicidal ideation and attempts.

[7] She was admitted to St. Joseph's Hospital on August 24, 2017 after a serious suicide attempt with intent to die.

[8] She was transferred from St. Joseph's, and admitted as an involuntary patient, to the Concurrent Disorder Youth Unit at the CAMH on September 19, 2017.

[9] She has remained at CAMH since then.

[10] JS is presently an involuntary patient of CAMH. She is detained there on a Form for Certificate of Renewal under the Mental Health Act.

[11] JS contested her involuntary detention on January 9, 2018. The Consent and Capacity Board upheld the certification, finding that she continues to represent a likely risk of serious bodily harm to herself.

[12] Dr. Nguyen believes that if given the opportunity and access to a means, JS will attempt to commit suicide and in so doing either end her life or, in failing to do so, cause serious bodily harm to herself.

LEGAL PRINCIPLES AND FRAMEWORK

[13] An order for JS's committal can only be made if the applicant satisfies this court that each and every one of the five criteria set out in subsection 117(1) of the Child and Family Services Act, RSO 1990, c C.11 are met. The relevant portions of that subsection are as follows:

Commitment to secure treatment: criteria

117 (1) The court may order that a child be committed to a secure treatment program only where the court is satisfied that,

(a) the child has a mental disorder;

(b) the child has, as a result of the mental disorder, within the forty-five days immediately preceding,

(iii) the child's admission to a psychiatric facility under the Mental Health Act as an involuntary patient,

caused or attempted to cause serious bodily harm to himself, herself or another person;

(c) the child has,

(i) within the twelve months immediately preceding the application, but on another occasion than that referred to in clause (b), caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to himself, herself or another person, or

(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.

[14] There is an additional requirement that must be met where the applicant is a physician. Under subsection 117(3), the court must be satisfied that the applicant believes the criteria set out in that subsection are met. In this case there is no debate and I am satisfied that Dr. Nguyen believes all 5 criteria have been met.

[15] If the court decides that all five criteria have been met and that an order for JS's committal to the secure treatment program should be made, it must then decide and specify the length of the committal term in its order. The decision, as can be seen from subsection 118(1), is one left to the court's discretion so long as it does not exceed 180 days.

[16] Among the other relevant provisions of this part of the Act, there are three others worthy of note in these reasons. One is that oral evidence be given at the hearing [see s. 115(1)]. Another is that the court deliver reasons for its decision [see 119(1)].

[17] A third, and particularly relevant in this case as no plan was presented to the court, is that the administrator prepare and file a plan within 90 days. Subsection 119(2) reads as follows.

Plan for care on release

(2) Where no plan for the child's care on release from the secure treatment program is available at the time of the order, the administrator shall, within ninety days of the date of the order, prepare such a plan and file it with the court.

[18] The court's power to order the committal of a young person to a secure treatment program comes under the title of "EXTRAORDINARY MEASURES" in a special portion of the Act – Part VI. This placement has been interpreted in a number of cases as a clear signal within the legislation that the committal of a young person to a secure treatment facility is a highly intrusive procedure where the liberty of the young person is at stake.

[19] The enumeration of specific criteria coupled with the conjunctive nature of the criteria in subsection 117(1), together serve as legislative safeguards against the arbitrary loss of a young person's liberty.

[20] So too do the general principles that have emerged from the small body of jurisprudence available in this area of law. One of those principles is that the applicant must adduce clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five criteria has been met.

CRITERIA A: THE CHILD HAS A MENTAL DISORDER

[21] JS took no position with respect to whether the applicant has met her onus to demonstrate that JS has a mental disorder. I find that she does for the reasons that follow.

[22] She has been diagnosed with Post-Traumatic Stress Disorder, Social Anxiety Disorder, Borderline Personality Disorder, Attention Deficit Hyperactivity Disorder, Bulimia Nervosa, Obsessive Compulsive Disorder, as well as, Cannabis Use Disorder, Cannabis induced Psychotic Disorder, Alcohol Use Disorder, and Stimulant Use Disorder.

[23] The symptoms of JS's various disorders include: hyper vigilance, increased difficulties with managing anger and irritability, a persistent sense that the world cannot be safe, and the sense of a foreshortened future. JS's heightened feelings of anxiety feel intolerable for her and have led her to want to end her life. She has described being tired of "feeling afraid all the time" and stated that she cannot imagine continuing to live if she cannot be free of her symptoms of anxiety.

[24] It is as a direct result of her trauma of being robbed and resulting PTSD, that JS has become so fearful, anxious and avoidant of perceived threats and wants to die.

[25] Her escalating drug use has become an addiction and further increases her risk as she uses drugs at times to disinhibit her to allow herself to act on her urge to suicide.

[26] Her long-standing poor body image and the resulting distress around her weight causes her to feel hopeless and to want to end her life as a way of avoiding negative feelings.

[27] Her ADHD exacerbates her impatience at slow treatment aggression, as well as her impulsivity in some of her suicide attempts. Her young age and her ADHD contribute to an underdeveloped frontal lobe, the part of the brain responsible for judgment, safety planning and risk assessment, which are impaired.

[28] Her OCD makes her obsessional and rigid about her urge to die which makes it hard for JS to shift to any further orientation. Her anxiety results in and stems from an intense fear of uncertainty which is a challenge to her maintaining safety in the community because life can be unpredictable and uncertain.

[29] Her need for control combined with her poor distress tolerance which is part of her Borderline Personality Disorder perpetuate her suicidality.

[30] Her Cannabis and Stimulant Use Disorder lead to psychosis resulting in further distress and urge for her to want to die as a way to escape her distress.

[31] In short, JS's persistent suicidal ideation and her compulsion to take her own life, is the direct result of her mental disorders and a symptom of almost every one of them.

PRELIMINARY ISSUES AND RULINGS REGARDING CRITERIA B AND C

[32] Counsel for JS advanced two technical arguments which have significant bearing on Dr. Nguyen's onus and JS's reasonable expectations as to what would be required to demonstrate that the onus has not been met. Before I discuss these arguments, it is necessary to provide some additional factual background.

[33] Prior to August 24, 2017, JS had been residing at a group home (L.'s Place) due to her ongoing mental health difficulties including her suicidal ideation and attempts. She had lived at L.'s since May 2017.

[34] On August 23, 2017, before her admission as an involuntary patient to a psychiatric facility under the Mental Health Act, JS attempted to take her life. She was found to be drowsy by staff at her group home and then disclosed that she had taken multiple medications the previous evening. This included 73 tablets of Zoloft and 40 tabs of Vinovo. She disclosed that she did this with the intention of ending her life.

[35] On August 24, 2017, JS was admitted to St. Joseph's Hospital as an involuntary patient (she was Formed). A urine drug stream test performed there was positive for THC (cannabis), Benzodiazepines, and cocaine.

[36] While she denied any specific trigger for the August 23/24 attempt to kill herself, she stated that she was experiencing chronic and persistent thoughts of wanting to end her life and acted as soon as she saw an opportunity to do so. Despite vomiting five times after taking the overdose, she did not seek medical attention or disclose her attempt to staff until asked about it the next morning.

[37] There is no debate that JS's actions on August 23 and 24, 2017, represent a serious suicide attempt with intent to die.

[38] JS was transferred from St. Joseph's to the Concurrent Disorder Youth Unit at the CAMH on September 19, 2017. She was admitted on the ground that she posed a likely risk of serious bodily harm to herself. Her admission to that psychiatric facility was involuntary as it was on a Form for Certificate of Renewal under the Mental Health Act.

[39] There was a brief period, from October 6, 2017 to October 25, 2017, when JS's certificate of renewal lapsed. As such, her legal status as a patient in that psychiatric facility changed and for these few weeks she was technically a voluntary patient. It was during this period and specifically, on October 25, 2017, that she is alleged to have made another attempt to commit suicide. This event is more fully discussed below.

[40] As a result of what occurred on October 25, 2017, JS was once again Certified (or "Formed") and she has remained an involuntary patient of the Concurrent Disorder Youth Unit at CAMH on a Form Certificate under the Mental Health Act, ever since.

[41] In her application Dr. Nguyen identified the August 24th incident as that which satisfies criteria B. In other words, this is the event she identified as qualifying as an attempt by JS to cause serious bodily harm to herself and which occurred within the forty-five days immediately preceding her admission to a psychiatric facility under the Mental Health Act as an involuntary patient.

[42] The first technical argument advanced by counsel for JS is this. Subsection 117(1)(b)(iii) must be rigidly or literally interpreted given the extraordinary remedy being sought and the potential loss of this young person's liberty. On a strict reading of the requirements, the 45 days from admission must start from October 25th as JS was not an involuntary patient under the Mental Health Act when the incident occurred. Her admission as an involuntary patient occurred following the incident, when she was once again detained pursuant to the issuance of a Certificate under the Mental Health Act. As the August 24th incident falls well beyond the 45 days immediately preceding this admission, it cannot be relied upon by Dr. Nguyen to satisfy the second of the five criteria.

[43] Counsel for Dr. Nguyen makes three arguments in response. First, she submitted that the incident on August 24th occurred within the 45 days because the only admission that counts is the first admission to St. Joseph's or JS's admission on September 19, 2017 to CAMH. Both admissions were involuntary and made under the Mental Health Act. From her perspective it is of no consequence that JS's legal status changed for a time during the period that she has been a patient.

[44] I am not persuaded by this argument. It cannot be that the legislature intended the reference to the admission to mean an event which occurred prior to any admission as an involuntary patient, regardless of when that admission occurred. Taken to its extreme, this would mean that an applicant could rely on an admission that occurred years before but which was followed by a lengthy period of stability with no hospitalization. Given the extraordinary nature of the remedy, the jurisprudence with respect to the strict application of the criteria and heavy onus on an applicant to demonstrate that all the criteria are met, the interpretation proposed would, if followed, render this criteria meaningless in terms of serving as a safeguard against the arbitrary loss of a young person's liberty.

[45] Furthermore, it is evident from the interplay between criteria B and criteria C and the use of the words "immediately preceding" that the intent in C is to show that the event relied on in B is not an isolated incident, and, that the incident relied on to prove B, is recent. To accept counsel's argument and allow a party to rely on any event so long as it occurred within 45 days before any prior admission under the mental health Act as an involuntary patient, regardless of when that admission was, would completely thwart that objective.

[46] The second argument advanced is that the court ought to interpret subsection 117(b)(iii) contextually. Dr. Nguyen admitted on cross-examination that they let the Certificate or Form lapse because of CAMH's policy that such patients cannot leave the facility on passes. They wanted to allow JS to do so and because of this policy, that could only be done if her technical status changed. From her perspective however, JS was never really a voluntary patient because JS's status as an involuntary patient could and would be immediately reinstated if required. Thus, counsel argues, JS has, in effect, been involuntary patient at CAMH throughout her admission and thus, from September 19, 2017 to date. If one accepts this argument, then the August 24th incident falls within the 45 days immediately preceding September 19, 2017, and can be relied upon to demonstrate that this criteria has been met.

[47] I am not persuaded by this submission either. Again I come back to what is at stake for the young person, the underlying goal of preventing the arbitrary loss of a young person's liberty. What is called for is rigidity, not flexibility. In any event, there is no gray area requiring interpretation. The language of the subsection is clear and unambiguous. The incident must have occurred within 45 days immediately preceding the admission of the youth with the legal status of having been designated as an involuntary patient pursuant to the Mental Health Act. On October 25, 2017, she was not such a patient. The August 24th incident falls outside the 45 days immediately preceding her most recent continuous legal status as an involuntary patient which began on October 25, 2017.

[48] For all these reasons, the applicant cannot rely on the August 24, 2017 incident to satisfy criteria B.

[49] This brings me to the second issue raised by counsel for JS, an issue that is more in the vein of an objection with the remedy requested, the dismissal of the application. By way of background, counsel for Dr. Nguyen submitted that if the court rejected her arguments with respect to the August 24th incident, then her client relies on the October 24th incident to demonstrate that criteria B is met. This submission came on the heels of a rigorous cross-examination of Dr. Nguyen, where she made it abundantly clear that the incident she was relying on to satisfy criteria B was the August 24th incident, and not that of the October 25th (although she did see the October 25th one as an attempt to commit suicide).

[50] Counsel for JS argues that it is unfair to allow the applicant to change her position and to allow her to rely on an event she did not "plead" as that which satisfies her onus to demonstrate criteria B. In other words: in her application she plead the incident on August 23/24 satisfies this criteria. She confirmed this clearly in her evidence at the hearing. Now that JS has demonstrated it does not qualify, it is unfair to let her change positions and to now rely on the October 25th incident to prove this criteria. It is unfair because that is a different case from the one JS has come to court prepared to meet.

[51] I agree that there is prejudice to JS in allowing the applicant to change her position. I do not agree that this means the application ought to be dismissed. Given the result in this case could be a matter of life or death for JS, such approach would be completely inconsistent with the paramount purpose of the Act as set out in subsection 1(1) – to promote the best interests, protection and well-being of children.

[52] While the primary purpose cannot in my view be used as a means to water down the rigid substantive legal test in applications under Part VI, it serves as the key guiding principle when it comes to the exercise of the court's discretion over procedural matters such as whether to dismiss a case on the basis of how a pleading has been drafted.

[53] In this case, the events of October 25th do not come as a surprise to JS. The factual circumstances surrounding that event are well articulated in Dr. Nguyen's report, which was provided to JS when the application was served. Dr. Nguyen adopted it as part of her evidence at this hearing. Thus, while there is some prejudice to JS as a result of how the pleading was drafted, I find it is minimal and in any event, can be addressed by adjourning the hearing to give JS's counsel more time to prepare her defense. Counsel for JS made no such request, even though this possibility was raised by the court when the argument was first advanced by her counsel.

[54] For these reasons I decline to dismiss the application on the ground just discussed and allow Dr. Nguyen to rely on the events which occurred on October 25, 2017, in her attempt to meet her onus to demonstrate that criteria B is met.

[55] I turn next to my analysis of whether criteria C has been met. I have decided to structure these reasons so as to address this criteria before criteria B because the facts relevant to C inform my analysis in B. I simply wish to avoid repeating the same facts.

CRITERIA C: THE CHILD HAS, WITHIN THE 12 MONTHS IMMEDIATELY BEFORE THIS APPLICATION FOR SECURE TREATMENT ON AN OCCASION DIFFERENT FROM THE ONE MENTIONED IN CRITERIA B, CAUSED OR ATTEMPTED TO CAUSE OR BY WORDS OR CONDUCT, MADE SUBSTANTIAL THREAT TO CAUSE SERIOUS BODILY HARM TO HERSELF OR ANOTHER

[56] JS did not dispute that Dr. Nguyen has met her onus to demonstrate that criteria C is met. I find that it is met for the reasons that follow.

[57] JS made several attempts in 2017 to end her life. For example in April 2017 she googled "can you die from an inhaler", and upon learning from the Internet that this was possible, took an impulsive overdose of her asthma inhaler causing heart palpitations. She did not tell anyone nor seek medical attention. She required medical intervention in the form of intravenous potassium for three days.

[58] In June 2017, she had gone to a bridge and contemplated jumping off but did not do so because she was afraid of the pain. On July 29 or 30, 2017, she bought two bottles of Benadryl on a wall from home. She had planned this and searched online where she learned it takes 52 tabs to kill herself. She took between 50 to 60 tabs as well as some other pills she had found including an anti-inflammatory medication. She started to hallucinate and then threw up. She did not tell anyone nor seek any medical attention. On August 21, 2017, she took a planned overdose of 12 tabs of Tylenol with 750 mL of vodka and a cocktail of prescription drugs including Xanax. She did not tell anyone and did not seek medical attention. There is also the suicide attempt on August 23 and 24, 2017, discussed earlier.

[59] What each of these attempts demonstrate is a persistent desire and intent in the 12 months immediately before this application, to end her life. They also demonstrate her escalating use, in terms of amounts as well as breadth of various substances in terms of their associated harms/lethality.

CRITERIA B: THE CHILD HAS, AS A RESULT OF THE MENTAL DISORDER, WITHIN THE 45 DAYS IMMEDIATELY BEFORE THE CHILD'S ADMISSION AS AN INVOLUNTARY PATIENT TO A PSYCHIATRIC FACILITY UNDER THE MENTAL HEALTH ACT, CAUSED OR ATTEMPTED TO CAUSE SERIOUS BODILY HARM TO HERSELF OR TO ANOTHER PERSON

[60] On October 25, 2017, JS ran away from staff while off the unit on a supervised recreation pass. She went to a bridge with the intent and plan of jumping off it in order to commit suicide. She did not jump. In fact, other than going to the bridge, she made no effort at all to jump.

[61] Dr. Nguyen admitted that JS reported to her that she decided not to jump at the time because she was afraid of the pain. Additionally, a man with a cell phone came by and asked her if she was ok. This scared her. She left the bridge and went to a friend's house. There she smoked marijuana, hoping that it would give her the courage to return to the bridge and jump. She started experiencing psychotic symptoms. The friend called 911. The police ultimately returned JS to the hospital.

[62] Dr. Nguyen admitted that she let JS' Certificate or Form lapse so that passes into the community could be given to JS. This was on October 6. She did so for several reasons. First, she did not know JS as well as she does now. Second, JS had been a voluntary patient with the strength of the Form as back up, since October 6th. Third, there had been no further attempt to suicide by JS after August 24th. Fourth, JS had been in hospital (first St. Joseph's and then CAMH) for over 1½ months without going out on passes, which is not ideal for teenagers. Fifth, patients on the unit are generally discharged after 4 to 6 weeks. Dr. Nguyen felt it was time for passes into the community in order to determine her suitability for discharge.

[63] When the implied suggestion was put to her that these factors coupled with JS's failure to do anything more than go to the bridge, all indicate low to no real intention to kill herself by jumping from it, Dr. Nguyen disagreed. She admitted that at the time she did not know JS as well as she does now and likely misjudged her lethality to herself.

[64] To ascertain whether what occurred on October 25, 2017 was a real attempt on the part of JS to kill herself by jumping off the bridge, one must look at the totality of the circumstances including the multiple attempts to kill herself that preceded this event, the symptoms of her mental disorders, which drive and fuel her desire to end her life, and what is now known about JS's intention and plan on the day in question. As I have already discussed the suicide attempts which preceded October 25th as well as the symptoms of her disorders, which cause her to want to die, I turn to what JS reported about the incident, all of which indicates serious intent, a plan, and action towards following through with the plan.

[65] After the fact, JS reported to Dr. Nguyen that:

(a) She had gone to this bridge before in June 2017 with an intent to jump and suicide but left because she was afraid of pain;

(b) Prior to going to the bridge, she had been having persistent suicidal thoughts;

(c) She had been planning to run away with intention to suicide since October 17, 2017;

(d) Her plan was to go to the bridge and to kill herself by jumping off it;

(e) She had been waiting since October 17th for the right opportunity. She told Dr. Nguyen that her plan was to wait until she was out on a pass supervised by a staff who was not likely to chase after her, and to go AWOL;

(f) She was happy the week before October 25th because she had this plan and would be completing her plan to end her life. This had been her wish since she found her anxiety and her life unbearable;

(g) On October 25th she ran away while on a supervised recreational pass off the unit. She went straight to the bridge as she planned. Her intention was to jump off the bridge and end her life;

(h) She did not jump because she was afraid of the pain and because a man came by who asked if she was okay. She ran away when he took out his cell phone as she was afraid he was going to call police;

(i) She then went to her friend's home to use marijuana in the hopes that this would give her the courage to return to the bridge and end her life by jumping.

[66] One must also consider Dr. Nguyen's unchallenged evidence that JS has few protective factors and limited ability to reflect on the consequences of her actions when engaging in self-harm or suicidal behaviours, particularly when under the influence of substances. After suicide attempts she has never stated that she is glad that the attempt failed and has expressed frustration at not being able to have ended her life to this point. Further, JS has never expressed regret for acting on suicidal urges nor expressed a desire to be alive or expressed any reasons for living. Also, that JS has said that she feels she has a right to die.

[67] Then there is JS's behaviour since October 2017 to consider. JS has indicated that her desire to die is a 5 out of 5. This has been the case throughout her stay with the exception of once dropping to 4.8. JS has also told Dr. Nguyen that she does not see herself living past her next birthday. JS drew a picture of herself in six months which indicated that she sees herself as dead by then. Just days before this hearing JS told Dr. Nguyen she does not expect to live more than six more months.

[68] I have also considered the evidence that JS has not made another attempt on her life since October 25th. Dr. Nguyen attributes this to a lack of means and opportunity, not to a lack of intent. I do not accept that this has been the case. Dr. Nguyen admitted during cross-examination that JS has been out on pass since October 25th, including in December 2017 and January 2018. This is opportunity and JS has not made an attempt to take her life on these occasions. Having said that, I accept Dr. Nguyen's explanation that JS did not want to ruin Christmas for her family and that she did not want to do anything that might jeopardize her chances at an upcoming review board hearing.

[69] I have placed little weight on JS's lack of attempt to commit suicide since October 25th in my evaluation of whether JS's actions on October 25th amount to an attempt to cause serious bodily harm to herself. What they demonstrate is not that JS did not intend or attempt to kill herself on October 25th but rather, that she is, as she was in the time leading up to October 25th, prepared to wait for the right moment.

[70] Looking at the totality of the circumstances, the evidence leads me to find that on October 25th, JS had the strong desire and clear intention of killing herself. She had a plan which she put into action and which would have culminated in her death if followed through to the end. The fact that her actions were interrupted by a passerby and that she developed cold feet does not negate this a real attempt to cause mortal bodily harm to herself.

[71] I find therefore that the applicant has met her onus to demonstrate that within the 45 days immediately before JS's admission as an involuntary patient to CAMH under the Mental Health Act, attempted to cause serious bodily harm to herself.

CRITERION D: THE SECURE TREATMENT PROGRAM WOULD BE EFFECTIVE TO PREVENT THE CHILD FROM CAUSING OR ATTEMPTING TO CAUSE SERIOUS BODILY HARM TO HERSELF

[72] JS took no position on whether the applicant has met the onus to satisfy the court that the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to herself. I am satisfied that it would for these reasons:

[73] She requires external controls to ensure she refrains from unsafe behaviour such as self-harm, drug use, purging, and suicide attempts. Restriction of access to means is essential to risk mitigation. According to Dr. Nguyen, at this junction 24/seven supervision is essential to preserve her safety. The secure treatment program offered by Syl Apps can provide this.

CRITERIA E: TREATMENT APPROPRIATE FOR THE CHILD'S MENTAL DISORDER IS AVAILABLE AT THE SECURE TREATMENT PROGRAM

[74] JS took the position that the applicant has not met the onus to satisfy the court that the treatment appropriate for JS's mental disorder is available at the secure treatment program.

[75] There is no direct evidence from someone at Syl Apps as to the treatment available there. What evidence this court has comes from Dr. Nguyen and reflects her understanding of what is available. I accept that evidence as her understanding was not shown to be inaccurate or incorrect on cross-examination. The following evidence therefore satisfies me that the treatment available at Syl Apps is appropriate for treating JS's mental health needs.

[76] While JS has shown some benefit at CAMH to treatment with psychotropic medications, the complexity of her presentation is such that she requires ongoing medication adjustment in the context of close observation from multiple different parties in multiple different settings to ensure accurate information is received with respect to her clinical response and side effects to medication. The secure treatment program will meet this need as there is a nurse practitioner, psychologists and psychiatrist available to meet this need.

[77] For her eating disorder, she needs structured meals with monitoring of her weight, blood work to monitor electrolytes which can be deadly when with purging. The program also has a nurse practitioner and psychiatrist with expertise in eating disorders so that her treatment of bulimia nervosa can continue with structured meals and ongoing behaviour therapy approach.

[78] The program offers extensive CBT and DBT treatment modalities, both of which are called for in treating disorders such as those of JS. She will also have extensive opportunities to implement the skills she has learned in a closely monitored and structured setting.

[79] She and her family require family therapy where they can continue to work on their communication with one another and continue to work on improving their relationship and family dynamics. While at CAMH, JS has not engaged fully in the work that the family needs to do and as a result, her gains have been extremely slow and minimal. At the secure treatment program she will have access to ongoing individual and group therapy sessions as well as family therapy sessions to work through complicated family dynamics.

[80] Recreation is vital to her treatment plan in terms of finding alternatives to substance use. At the secure treatment program JS will have a robust recreational therapy program, including: gym, yoga, hip-hop, music therapy, as well as pet therapy. She is quite musical and would have access to her MP3 player/iPod.

[81] School and academic advancement are also vital to her treatment plan. JS requires support in school in a specialized classroom that has a smaller number of students with greater teacher to student ratio. If she is committed to Syl Apps she will be able to attend a small classroom with individualized support and this will enable her to regain missed credits and catch up to where she should be for her chronological age and academic ability with respect to school performance.

[82] The benefit to JS of attending a full time program of study should not be underestimated. At Syl Apps she will be able to participate in a full day of school. The school teacher at CAMH has reported that JS is capable of participating in a full course load at school. This is important for JS because it is her fear of failure and her avoidant response to failing that creates an obstacle to academic progression. Rather than only two teachers, they have a full high school with the principal with a variety of courses including culinary, something JS is interested in. Woodshop and computer labs are also offered.

CRITERIA F: NO LESS RESTRICTIVE METHOD OF PROVIDING TREATMENT APPROPRIATE FOR THE CHILD'S MENTAL DISORDER IS APPROPRIATE IN THE CIRCUMSTANCES

[83] JS contends that the applicant has not met her onus to demonstrate that criteria F has been met.

[84] I find that, other than Syl Apps and CAMH, there are no other voluntary or involuntary placement options that are viable at this juncture.

[85] Dr. Nguyen's evidence is that continued hospital admission is not a suitable option to manage JS's risk. This is demonstrated by the ongoing high risk behaviour she exhibits upon discharge. For example, JS has had five admissions to hospital since September 2016. Each admission has been followed by suicide attempts, and in one case, aggressive behaviour towards her family (an incident that involved JS smashing drinking glasses on the floor and trying to get into a locked room by beating on the door with a meat cleaver). JS has also had one presentation to the emergency room at Humber River Regional Hospital for drug-induced psychosis in July 2017 but was not admitted.

[86] The CAMH treatment team has explored every voluntary or less restrictive treatment option as a discharge plan to avoid ongoing hospitalization. JS has been declined from all community discharge locations due to a concern about an inability to manage her level of suicidal ideation as well is concerns regarding her having no treatment goals or willingness to engage in treatment. The one program that might have been open to her, she declined to go to.

[87] Returning home is also not an option for JS. Due to their concern for her safety, and the fact that JS continues to require a structured living environment, JS's parents are not willing to have her discharged to return living with them.

[88] JS has stated to Dr. Nguyen that if involuntary status at CAMH were to be rescinded and she was to become a voluntary patient then she would leave hospital against medical advice and stay in a shelter. She is aware that going to a shelter puts her at risk of being robbed and re-victimized thereby exacerbating her symptoms of anxiety which she agrees drives her suicidality putting her at further risk. I accept Dr. Nguyen's evidence that JS would likely commit suicide at the first opportunity if released into the community, particularly to a shelter, where she would have no control over her environment and access to both the means an opportunity to kill herself. This, community release is also not appropriate.

[89] I find that the only options before me to consider are continued admission on the Concurrent Disorders Youth Unit at CAMH or commitment to the secure treatment program at Syl Apps. Although the evidence to meet this criteria is slim, I am persuaded that no less restrictive method of providing treatment appropriate for JS's mental disorder is appropriate in the circumstances, then committal to the secure treatment program at Syl Apps. I make this finding for these key reasons:

[90] First, both CAMH and Syl Apps offer a restrictive environment where the risk JS poses to herself can be contained. Both offer ways to restrict both the means and opportunity available to act on her suicidality. Both offer freedoms off the unit. Syl Apps has the potential to be less restrictive, however, because it can contain the risk while offering greater freedoms both on the unit and off, for patients who earn those privileges.

[91] Second, while both offer some similar programming and treatment modalities, I find that what is offered by Syl Apps is greater and more likely to advance the treatment of JS's mental disorders. As such, Syl Apps is also the more appropriate setting to treat JS. This is why.

[92] The evidence clearly establishes that since October 25th JS has not made a further attempt to suicide and before that her only attempt was on August 23/24, 2017. This suggests more than mere containment. It suggests that CAMH has been effective in treating JS's mental disorders.

[93] This may be so, however, what is also clear from such things as JS's continued suicidal ideation, inappropriate and aggressive behaviours towards her family in particular, and from her recent restriction of food intake, is that she is not cured and in fact, the risks remain very high. My understanding of Dr. Nguyen's evidence is that the treatment program offered at CAMH has gone as far as it can in treating JS's mental disorders and if she continues in their program, she will be in danger of regressing. In other words, while it may have been somewhat effective, it is no longer effective or appropriate.

[94] She discussed the limitations of their program and how Syl Apps is more likely to meet JS's treatment needs going forward, and thus, the more appropriate program for JS at this time. I have already discussed some of these above. Three are worthy of note again.

[95] First, by design the CAMH unit is unlikely to advance her treatment through programing. The average length of stay for a patient on this unit is just over four weeks. The patients, on average, are of moderate to medium risk. The treatment modalities are all designed to meet the needs of that clientele and designed to be effective for that duration of stay.

[96] JS has been there for almost 5 months. She has gone through all the groups multiple times. She could, as Dr. Nguyen states, probably teach the programs at this time. Not surprisingly, JS is now disengaged.

[97] Syl Apps offers more variety, greater programming options, and more extensive opportunities for JS to practice her skills. It is a program designed for both short term and long term patients. Its programing is most appropriate for JS because it is designed for long term engagement, and, JS is more likely to reengage in treatment, given the variety and increased opportunities.

[98] JS's treatment and recovery will also be furthered if she is able to attend school full time. CAMH is limited in terms of meeting this treatment need and goal as it can only offer the chance of attaining two credits at a time to support JS's academic progression. Prolonged admission on a unit without access to full school programming and a full academic day, given that JS is now capable of this, puts JS further behind in school. Continuing in the program they have to offer JS, will perpetuate her belief that she cannot see herself finishing high school and perpetuate her hopelessness. The ability to access a full day of school programming is developmentally appropriate and clinically indicated at this time. Syl App's as I have already discussed, can offer more appropriate education programming, and thus, offers the more appropriate treatment for such symptoms.

[99] JS also continues to struggle with urges and cravings to use cannabis and alcohol. She acknowledges her use of cannabis will increase her risk of relapse to cocaine use. As a result of JS's sensitivity to psychotic symptoms even with very small amounts of use, the clinical recommendation is of abstinence.

[100] Further admission to CAMH is not an appropriate treatment plan because it may perpetuate JS difficulties in refraining from substance use. All of the patients at CAMH's Concurrent Disorders Youth Unit have a moderate to severe substance use disorder. Some clients are working under the harm reduction model which means they may have access to substances. Additionally, there are new patients coming onto the unit who are intoxicated or who have relapsed while on passes. I accept Dr. Nguyen's evidence that JS will use if presented with access to substances. Such use could be lethal.

[101] I heard no evidence that JS has been triggered to date, even though two people she knew have been admitted. Despite this, I accept Dr. Nguyen's evidence and find there is some measure of risk; some potential for JS to be triggered. This is compounded by the fact that JS is very peer oriented. While I do not place much weight on this as a reason for finding CAMH to be inappropriate; on the other hand, Syl Apps does appear to be able to offer the more appropriate treatment because all of its patients will have the same clinical recommendation of abstinence. Because of this transfer to Syl Apps will allow JS time away from triggers and offer greater restriction of her access to harmful substances.

[102] CBT is the gold standard, Dr. Nguyen says, for treating OCD. This is not something offered at CAMH but it is something offered at Syl Apps. Thus, at Syl Apps JS's OCD treatment will go beyond the high doses of SSRIs modality focused on at CAMH.

[103] An important part of JS's treatment includes DBT. At CAMH they teach DBT skills but the opportunities for patients to practice them daily under supervision and with feedback, is limited. At Syl Apps, however, the entire unit is DBT based and thus, will afford JS a greater opportunity to advance her work in practicing the skills she learns there.

[104] For all these reasons I conclude that no less restrictive method of providing treatment appropriate for JS's mental disorder is appropriate in the circumstances.

TERM OF COMMITTAL AND NEED FOR DISCHARGE PLAN

[105] No one made any submissions as to the length of the committal term.

[106] The evidence at this hearing about Syl Apps and what it has to offer, and about its programs and structure was barely sufficient. It lacked the kind of detail the court would expect to have been presented with. It also seemed to me that the evidence around how effective it will be in advancing JS's treatment was often speculative. Further, no plan for JS's care on release from the secure treatment program was made available to me.

[107] I am also mindful that JS has made no attempt to commit suicide since October 25, 2017. Similarly, there is no evidence she has turned to illegal substances, despite the increased risk Dr. Nguyen says there is for this at CAMH.

[108] The case for JS's committal to Syl Apps is made out but just barely. The evidence around the length of the committal term is insufficient to support a finding that a 180 day committal term is appropriate.

[109] All of this troubles me, particularly given that we are talking about a 16 year old faced with the loss of her liberty.

[110] I must order the Administrator of Syl Apps to serve and file a plan for the child's discharge because none was filed. The Act permits me to direct that this be done within 90 days of the order. Given this and all of the forgoing, I have decided that a 90 day committal term is more appropriate in the circumstances.

ORDER

[111] For all of the reasons set out above, I find that the applicant has met her onus to demonstrate that all criteria under section 117(1) have been met, and, that the appropriate term of JS's committal to the secure treatment program is 90 days. Accordingly, I make the following order:

(1) JS shall be committed to the secure treatment program at Syl Apps for a period of 90 days from the date of this order;

(2) The Administrator of Syl Apps shall serve and file a plan for the youth upon her discharge from the program within 90 days of the date of this order.

(3) Today's court attendance by teleconference date is vacated;

(4) The Judicial Secretary is requested to fax a copy of this order to both counsel and to mail a copy to the respondent parents.

Released: February 13, 2018

Signed: Justice Victoria Starr