Martha Héder and Grace Cheng are both lawyers at the Office of the Children’s Lawyer. Martha is in charge of the Secure Treatment legal representation program. Grace has represented youth in emergency secure treatment cases.
*** this information deals with emergency admission only, since the longer-term admission process and criteria are different! ***
1. When a young person does not agree with being locked in a children’s residence (Youthdale, Roberts/Smart or Syl Apps) for mental health reasons, how does a lawyer from the Office of the Children’s Lawyer (OCL) get involved?
When a young person first arrives at a locked residence, he or she meets with a representative from the Office of the Provincial Advocate for Children and Youth. The representative asks the young person whether he or she would like to meet with a lawyer, and if the young person does, the representative contacts the OCL and the OCL arranges for a lawyer to meet with the young person at the residence within about one day. The young person can request to see a lawyer at any time during his or her stay at the residence by contacting the Office of the Provincial Advocate. The young person has a right to see a lawyer and does not need to pay for the lawyer.
2. When a young person does not agree with being locked in, the lawyer can help the young person go to the Child and Family Services Review Board to take a second look at whether or not they can be kept there (a “hearing”). When does the hearing take place and what happens at the hearing?
If a young person does not agree with being locked in, the OCL lawyer will help the young person request a hearing, and the hearing must take place within five days of the request. A young person may request a hearing at any time during his or her stay at a locked residence. Hearings take place in a room at the residence and usually last about 6 to 8 hours. At the hearing, a panel of three decision-makers from the CFSRB decides whether the decision to put the young person in the residence was made according to law. The law says that five conditions must be met before a young person can be involuntarily placed in a locked residence.*
The OCL lawyer’s job is to show that the decision was wrong because all five conditions were not met. Another lawyer will be at the hearing to represent the residence. The residence’s lawyer’s job is to show that the decision was correct. The lawyers will present information to the decision-makers by asking witnesses questions. Witnesses may be anyone who has information about the young person that is relevant to the decision to put the young person in the locked residence, and may be the young person’s parents, group home staff, Children’s Aid workers, staff at the residence, and doctors. All witnesses must promise to tell the truth.
The decision-makers will listen to the witnesses’ answers (“testimony”) to make their decision. The decision-makers can only base their decision on testimony about events and behaviours that happened before the young person was put in the locked residence. They cannot consider testimony about things that happened during the young person’s stay at the residence. The decision-makers are also not allowed to consider any testimony about a young person’s interactions with the criminal justice system or a young person’s criminal record.
The young person may choose whether to be present at the hearing, and also whether to be a witness. If the young person wants to testify, he or she should let the OCL lawyer know ahead of time so they can prepare. The young person will first be asked questions by the OCL lawyer, and then by the residence lawyer. Sometimes the decision-makers will ask the young person questions directly too. During a hearing, a young person can ask to take breaks or to speak privately with his or her lawyer.
* The five conditions are set out in a law called the Child and Family Services Act, in section 124(2), and they are: (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.
3. What are the possible things that could come out of a hearing?
At the end of the hearing, the CFSRB decision-makers will give their decision. If they decide that all five conditions in the law were met (in other words, the decision to put the young person in the locked residence was correct), then the young person must stay in the residence. If they decide that the decision to put the young person in the residence was not correct, they will tell the lawyers and the young person which conditions were not met. The young person is then allowed to leave the residence immediately with his or her parent (or Children’s Aid worker, if the young person was in Children’s Aid’s care).
Once a decision has been made, the young person cannot request another hearing during his or her stay at the residence. However, if the young person is brought back to a locked residence again in the future, he or she may request a new hearing then.
4. Why is it important for young people to have a lawyer from the Office of the Children’s Lawyer if they disagree with being locked in for mental health reasons?
The law says that no person, young or old, can be put in a locked place against his or her wishes unless there are lawful reasons. A lawyer helps young people who have been locked in exercise this basic right by guiding them through the legal process and speaking up for them at the hearing.