Dr. A. B. v. M.B.
WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dr. A. B.
And
M.B., the Child
BEFORE: Shelston, J.
COUNSEL: Ms. Crain for the Applicant
Ms. Côté for the child
HEARD: October 9 and 15, 2020 (at Ottawa)
ENDORSEMENT
1Dr. A. B. (“the Doctor”) applies for an order under section 164 of the Child, Youth, and Family Services Act, 2017, S.O. 2017, c. 14, Sch, 1 (“CYFSA”), to admit M.B., born in 2003 (“the child”), to a secure treatment program at the Roberts Smart Centre for a period of 180 days. The child opposes the application and seeks a dismissal of the application.
2The Doctor’s position is as follows:
a) that the child suffers from a mental disorder;
b) that the child has, as a result of the mental disorder, within 45 days immediately preceding the application or the child’s admission to the psychiatric facility at the Children’s Hospital of Eastern Ontario (“CHEO”) under the Mental Health Act as an involuntary patient, caused or attempted to cause serious bodily harm to herself;
c) the child has within the 12 months immediately preceding this application, but on another occasion and 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 herself;
d) the secure treatment program at the Roberts Smart Center would be effective to prevent the child from causing or attempting to cause serious bodily harm to herself;
e) treatment appropriate for the child’s mental disorder is available at the Roberts Smart Centre Secure Treatment Program to which the application relates; and
f) that no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances other than the Roberts Smart Centre.
3The Doctor’s position is that a stay of 180 days at the Roberts Smart Centre Secure Treatment Program would be effective to prevent the child from causing or attempting to cause serious bodily harm to herself. Further, a period of 180 days would be required to allow the application and modification of medication to address her mental disorder and to allow her to engage in talk therapy to address her various issues.
4This application proceeded with in-person testimony from a records clerk at CHEO, the child’s mother, the child psychiatrist and Ms. Vincent, the manager of the live-in treatment program at the Roberts Smart Centre. The child did not attend or testify at this hearing, at her own choosing.
Legislative and Jurisprudential Framework
5Section 164(1) of the CYFSA provides 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 45 days immediately preceding,
(i) the application under subsection 161(1),
(ii) the child’s detention or custody under the Youth Criminal Justice Act (Canada) or under the Provincial Offences Act, or
(iii) the child’s admission to a psychiatric facility under the Mental Health Act as an involuntary patient,
(iv) caused or attempted to cause serious bodily harm to themself or another person;
c) the child has,
(i) within the 12 months immediately preceding the application, but on another occasion then 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 themself or another person, or
(ii) in committing the act or attempt referred to in clause (b), caused or attempted to cause a person’s death;
d) the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to themself 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.
6The jurisprudence indicates that expert evidence is required to demonstrate that a child has a mental disorder as defined by the CYFSA. A mere diagnosis does not fulfill the requirements of the definition. The court requires a medical expert’s opinion that the child’s capacity to make reasoned judgments is grossly impaired and explaining the basis for that opinion. (See Re J.A. (An Infant), 1989 CanLII 3135 (Ont. C.J.)).
7Justice Starr in McMaster Children’s Hospital, Dr. Jennifer Couturier and L.R.U and J.U 2019 ONCJ 496, Starr, J., reviewed the legal and factual considerations applicable to a secure treatment application. She summarized the key guiding principles in such an application at paragraphs 14, 18 and 26:
Secure treatment is a highly intrusive procedure that engages children’s section 7 rights under the Charter. The Legislature has recognized this by placing the secure treatment provisions in a special part of the Act entitled “Extraordinary Measures” and by highlighting at section 158 of the CYFSA that Secure Treatment Programs impose continuous restriction on a child’s liberty.
In recognition of the highly intrusive nature of this type of order and to ensure that this procedure complies with the Charter and the principles of fundamental justice, both the CYFSA and jurisprudence recognize that long-term secure treatment orders can only be made if the strict criteria are met.
Taking all of the foregoing into account along with the guiding principles this Court summarized at paragraph 20 of its’ decision in an Ontario Shores Centre for Mental Health Sciences v. C. S., supra, the following emerge as the key guiding principles with respect to how the court is to safeguard against the arbitrary loss of a young person’s liberty in the context of the secure treatment applications, be the applications of first instance or applications to extend the committal:
the loss of a young person’s liberty is a very serious matter. Decisions that have the potential of resulting in such a loss are not to be made arbitrarily;
an order committing a child to secure treatment is to be considered as a remedy of last resort;
the applicant bears the onus to demonstrate why the young person should be (or continue to be) committed to a secure program against the child’s wishes;
to fulfil its own as the applicant must:
a. adduce clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five criteria have been met;
b. direct evidence from a psychiatrist whose opinion evidence resulted in the child’s admission;
the court cannot make a ruling on the basis of a summary procedure. It is the applicant’s obligation to lead oral evidence and the child is entitled to test that evidence.
the evidentiary standard on such applications is that the evidence must be trial worthy. It is not permissible to lead or rely on inadmissible hearsay or on hearsay opinion evidence given only in written form;
the court is required to review the evidence with respect to each criteria carefully and exhaustively; and be satisfied that the preponderance of the evidence with respect to each of the criteria, supports a finding that the particular criteria has been established;
the court may only make an order committing, or extending the committal, where it is satisfied that all of the criteria in sub section 164(1) (secure treatment applications) and ss.167(1)(extension applications) have been met;
the court retains the jurisdiction to decline to make a committal order, even in cases were all of the criteria have been met.
Background
8The child is 17 years of age. She lived with her mother, stepfather and 15-year-old brother before her admission to the hospital. She has no contact with her father. The mother describes her daughter as being very non-trusting but a “great kid” who does not warm up easily.
9The child has been in the psychiatric unit at CHEO since July 14, 2020 when she was involuntarily admitted as a patient.
10Since she was 11 years of age, the child has self-harmed, initially by cutting herself. The mother testified that the child has more scars than she can count. She first tried to kill herself when she was 13 and has attempted to kill herself, according to her mother, in excess of 20 times. Some of the attempts have been in her home by overdosing on medication, drinking poisonous solvents, self-strangulation and some have been outside of the home such as attempting to be run over by a train.
11The mother testified that the child has also attempted to starve herself by not eating for up to 19 days or not taking water for four or five days. She has repeatedly and viciously hit her head on the headboard of her bed, burnt herself with curling irons and attempted to swallow razor blades.
12The mother testified that the child has attempted to strangle herself using electrical cords, a belt, pillowcases, towels and putting two socks together. She would then use a pen or a screwdriver to tighten the item around her neck.
13The mother advised that the child tried to harm herself with anything sharp including staples, pushpins and tools. The mother attempted to prevent the child from leaving her bedroom in the basement of her home by barricading the staircase. The mother has hidden razors, medications, sharp knives and tools.
14The child has a history of being admitted to various hospitals in Eastern Ontario, being the Perth and Smiths Falls District Hospital, the Brockville Hospital and CHEO. The Ontario Provincial Police have been involved in locating and returning the child to the parents and in escorting her to the various hospitals.
15The child was admitted to CHEO on May 23, 2019, due to an overdose of 60 capsules of Sertraline. The child remained in the hospital until October 2, 2019, when she consented to an order transferring her to the Roberts Smart Centre Secure Treatment Program for 180 days. The child refused an extension of her stay and was released into her mother’s care on March 29, 2020, with certain protocols to follow. Unfortunately, the child refused to follow the protocols which included therapy and treatment.
16On April 20, 2020, the mother was out for the evening when she failed to receive a text from her daughter who was at home. She was worried and consequently returned home. She found the child in the basement in a groggy state, with cuts on her arms. The mother called 911 and the child was brought to the Perth and Smiths Falls District Hospital emergency department where it was determined that she had ingested 70 tablets of Venlafaxine and 5 tablets of Mirtazapine. After searching her daughter’s bedroom, the mother found a rusty old X-Acto knife under her bed. The child was transferred to CHEO on April 21, 2020, for a psychiatric/safety assessment. She was discharged into her mother’s care.
17On April 26, 2020 and April 27, 2020, the child was again assessed as result of attempted strangulation and self-harm. She was again discharged to her mother.
18The child was admitted to CHEO on a fourth occasion from May 9-14, 2020, after she attempted to strangle herself with an electrical cord in her home. She was discharged into the care of her mother on May 14, 2020.
19The child was admitted, this time by the applicant doctor, to CHEO from June 16-18, 2020 as a result of recent active suicidal thoughts and plans. She had been on train tracks at least three times, was making superficial cuts to her forearms and had stopped eating. She was released her mother on June 18, 2020.
20The child was admitted to CHEO from July 2-6, 2020, following an overdose of about 50 tablets of Tylenol on Canada Day. She was again discharged into the care for mother on July 6, 2020.
21On July 10, 2020, the child was admitted to the Brockville General Hospital after she left home with the intention to commit suicide and was found near train tracks by the Ontario Provincial Police. She was transferred to CHEO on July 14, 2020. On that date, the applicant doctor admitted the child as an involuntary patient. She remains there today.
22Since July 14, 2020, the child isolates herself in the unit and refuses to participate in any form of therapy. She has pursued very little education. She is very difficult to engage in talk therapy even with the applicant doctor who sees her every day during the week.
23The doctor completed an application dated July 21, 2020 to the Roberts Smart Centre Mental Health Treatment Program: Open Live-In Treatment and Secure Treatment Program.
24On August 21, 2020, the Roberts Smart Centre confirmed that they had approved the application for the child to be admitted to the Secure Treatment Program for 180 days.
Analysis
25The applicant requests an order that the child be placed in the Roberts Smart Centre for a period of 180 days. If the request is granted, the child will remain in a psychiatric facility against her will. This decision fundamentally affects her right to liberty. The court must be cautious and weigh carefully the evidence before making such a decision. The court must act as a gatekeeper to only permit the evidence that his trial worthy and admissible.
26The burden of proof is on the applicant to prove based on credible and trustworthy evidence that the evidence supports a finding that all six factors set out in section 164 of the CYFSA are met. If any one factor is not met, the request must be denied.
Criteria #1: Mental disorder
27The applicant submits that the child suffers from a mental disorder. The applicant doctor prepared a report dated September 8, 2020, in support of his request to commit the child to the secure treatment program at the Roberts Smart Centre pursuant to section 164(1) of the CYFSA.
28In the doctor’s opinion, the child suffers from a mental disorder. The doctor has diagnosed the child with the following disorders:
a) major depressive disorder;
b) social anxiety disorder;
c) borderline personality traits; and
d) sleep disturbance.
29The doctor testified that, in his opinion, the child has a severe case of depressive disorder with suicidal ideation and profound depression and that the number of self-harm attempts and suicidality makes the situation very high risk.
30The applicant doctor testified that the child is in the subunit which consists of reinforced walls, windows, contains two beds and in which the occupants are under constant observation with the line of vision by staff at all times.
31The doctor testified that when the child gets a thought in her mind, she cannot control it. In his opinion, the various attempts at self-harm are directly related to her mental disorder. Counsel for the child cross-examined the doctor and argues the doctor did not specifically state either in his report or in his testimony that the child’s “mental disorder” is a substantial disorder of the emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgments as required by section 157.
32I disagree with the submission of counsel for the child. The doctor testified that in the preparation of his report, his testimony and the application dated July 21, 2020 that he submitted to the Roberts Smart Centre, that he was aware of the requirements under the legislation. I accept the evidence of the doctor that the child suffers from a severe case of depressive disorder and that the child suffers from a mental disorder.
Criteria #2: The child has, as a result of a mental disorder, within the 45 days immediately preceding this application for secure treatment or 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.
33The proceedings were commenced on September 10, 2020. The child was admitted as an involuntary patient on July 14, 2020. For the purposes of this criteria, I have considered any incidents within 45 days preceding the admission as an involuntary patient on July 14, 2020. Consequently 45 days from July 14, 2020 results in the 45-day period starting May 30, 2020.
34I have received evidence of various incidents that occurred during this period of time. However, the legal test is that the child has caused or attempted to cause serious bodily injury to herself. There is no evidence of any attempt to injure anyone else but herself.
35Many of the incidents described are troubling but do not meet the test of “serious bodily injury”. However, I find that on one occasion the child attempted to cause herself serious bodily harm. On July 1, 2020, she took an overdose of approximately 50 Tylenol tablets.
36I find that the applicant has met the second criteria.
Criteria #3: The child has within the 12 months immediately preceding this application, but on another occasion than that referred to in criteria two, caused, attempted to cause or by words or conduct made a substantial threat to cause bodily harm to himself, herself or another person
37The applicant must provide incidents that support a finding that from September 9, 2019, to September 10, 2020, other than the incident of July 1, 2020, the child caused or attempted to cause or by words or conduct made a substantial threat to cause bodily harm to herself.
38I find that the child attempted to cause bodily harm to herself on the following locations:
a) on April 20, 2020, the child ingested 70 tablets of Venlafaxine and 5 tablets of Mirtazapine;
b) on April 26, 2020, the child attempted to strangle herself with an extension cord; and
c) on May 8, 2020, the child attempted to strangle herself with an electrical cord.
39The doctor testified that, in his opinion, on these three occasions, the child tried to kill herself as a result of her mental disorder.
40I find that the applicant has met the third criteria.
Criteria #4: 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
41I accept the evidence of the doctor that the child is very high risk to cause serious bodily harm to herself because of her mental disorder.
42Ms. Vincent, the manager of the live-in treatment program at the Roberts Smart Centre, provided the court with evidence as to the physical layout out and the protocols in place at the Roberts Smart Centre. She described the Roberts Smart Centre as providing specialized, structured and high-level intensity supervision and treatment of youths with high risk behaviors such as self-harm and suicidal gestures.
43The secure treatment center consists of a secure facility which includes eight beds in separate bedrooms, with a gym, dining, lounge and school. The children are supervised 100% of the time with varying levels of supervision, the highest level requiring a staff member to be within arms-length of a child at all times. All members of the treatment team including the psychiatrist, youth counselor, clinician, program coordinator, occupational therapist, nurses, pharmacist and social workers are all trained in preventing death by suicide.
44I accept the evidence of the applicant doctor and Ms. Vincent that the child would be assessed, monitored and given treatment if she is sent to the Roberts Smart Centre. I find that the applicant has met the fourth criteria.
Criteria #5: Treatment appropriate for the child’s mental disorder is available at the place or secure treatment to which the application relates
45Currently, the child’s mental disorder is being treated by medication that was started in September 2020. The child is not engaging in any therapy and very little education at this time in the psychiatric unit of CHEO.
46The doctor testified that as part of the treatment for the child, the psychiatrist must be able to ascertain what medication and what dosages would be the best for this child. I accept the evidence of the doctor that adjusting or increasing the dosage can only be done over time and that the child must reach the maximum dosage before an opinion can be formed on whether the medication is appropriate.
47The doctor and Ms. Vincent testified that The Roberts Smart Centre would develop a plan of treatment to determine the right medication for the child. Further, in addition to the medication, the child will be involved in therapy that will address the life-threatening and harmful behaviors that she has exhibited.
48I find that the applicant has met the fifth criteria.
Criteria #6: No less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances
49I find that the options available for this child are as follows:
a) to be released into her mother’s care;
b) remaining in the psychiatric ward of CHEO;
c) being placed in a group home or independent living with the Children’s Aid Society;
d) being admitted to the Royal Ottawa Hospital;
e) being admitted to the secure treatment program at the Roberts Smart Centre.
50The child’s mother testified that she does not feel she can protect her daughter from killing herself. I agree that returning the child to her mother is not in her best interests and is not a viable option.
51The child has been in the CHEO psychiatric unit since July 14, 2020. The applicant doctor testified that the usual stay in the psychiatric unit is between 1 to 2 weeks. The child has been there over three months. Most of her stay has been in the subunit for her own protection. However, while the psychiatric department at CHEO is designed to address acute psychiatric admissions, it is not designed for long-term psychiatric admissions. This is not an option.
52Counsel for the child submits that there were options to engage the services of the Children’s Aid Society or to place the child in a group home such as the Kramer group home operated by the Roberts Smart Centre. The mother testified that the child refused to engage in a Voluntary Services Agreement or to consider the Roberts Smart Centre, Kramer house. With respect to the doctor, he testified that he did not consider those options because of the child’s refusal and that, in any event, in the doctor’s opinion, putting her in an unsecure, unsupervised setting would be extremely high risk. I agree with the doctor that this is not a viable option.
53As the Royal Ottawa Hospital is not accepting new patients during the COVID-19 pandemic, this is not an option. The mother testified that the child was at the Royal Ottawa Hospital for three weeks before going into the Roberts Smart Centre in October 2019. The child told her mother she refuses to go there again.
54In my view, the only alternative is to place the child in the Secure Treatment Program of the Roberts Smart Centre where she will be supervised 24 hours a day in a very secure facility, being watched by individuals who are specifically trained in suicide prevention and where she can be medicated and engage in psychotherapy.
55I find that the only institution which can provide the appropriate treatment required to address this child’s mental disorder is the Roberts Smart Centre Secure Treatment Program.
Length of Placement
56On the issue of the length of placement, the applicant has requested a period of 180 days. Counsel for the child submits that a period of three months should be the maximum amount of time that the child would be placed in the secure treatment program. She submits that this three-month period will be sufficient to determine if the program is beneficial. There is no medical evidence filed by counsel for the child to support this submission.
57The child was already in the program for a six-month period ending on March 29, 2020, albeit with different medication. The mother’s evidence was that there was some improvement by the child but that it was short-lived because she did not follow up with the protocols recommended. The applicant doctor testified that the length of time of six months is required to allow the treating psychiatrist to adjust the child’s medication and to determine which type of medication and in what quantity is best able to address the child’s mental disorder. Further, he testified that the child will need to engage in talk therapy which will take time because she is very non-trusting. A shorter period of time will not allow both the medication and the therapy to be properly engaged.
Plan for the child’s care on release from the Secure Treatment Program
58Section 166 of the CYFSA requires the court, in making an order under subsection 164(1) to include a statement of plan, if any, for the child’s care on release from the Secure Treatment Program. At this time, there is no such plan.
59Once the child is admitted, the child will be followed by a treatment team consisting of a treating psychiatrist, program coordinator, clinician, youth counselor, as well as other services such as an occupational therapist, nurse and pharmacist. A plan of treatment will be created once the team convenes to prepare a plan of treatment for the child.
60A post-release plan would be worked on while the child was in care in the Secure Treatment Program.
61Section 166(2) of the CYFSA provides that where there is no plan for the child’s care on release available at the time of the order, the administrator shall, within 90 days of the date of the order, prepare such a plan and file it with the court. I make such an order in this case.
Disposition
62I find that this child’s mental disorder is causing her to attempt to end her own life. Her mother can no longer provide a safe environment and has no other alternative but to turn to the mental health community to address her daughter’s serious problems.
63The child has been admitted to the psychiatric unit of CHEO for long periods of time. That unit is intended for acute short-term cases. This child’s mental disorder requires a longer period of time in a specially designed environment to address her needs.
64The depth of her mental disorder causes me serious concern about releasing her into a non-secure environment such as a group home or independent living with the assistance of the Children’s Aid Society.
65I find that this child’s particular mental disorder requires a stable, secure environment that can be provided by the Roberts Smart Centre.
66I order that the child M.B. be committed to the Roberts Smart Centre Secure Treatment Program for a period of 180 days.
Released: October 21, 2020
COURT FILE NO.: FC-20-CP53
DATE: 2020/10/21
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Dr. A.B., Applicant
and
M.B., the child
BEFORE: Shelston J.
COUNSEL: Ms. Crain for the Applicant
Ms. Côté, for the child
ENDORSEMENT
Shelston J.
Released: October 21, 2020