I. THE PHENOMENON OF HINDSIGHT BIAS IN HEALTH LAW
Hindsight bias is a common concern in many areas of the law, including health law. The phenomenon of hindsight bias refers to the tendency to believe that a party or accused must have committed a legal wrong based on the consequences of their choices or actions. In healthcare-gone-wrong scenarios, it can become easy to believe that a medical professional must have acted negligently when one knows after the fact that mistakes were made during treatment and that those mistakes had life-altering or life-ending consequences.
For example, in 2010, the Alberta Court of Appeal reversed a decision that relied too heavily on hindsight and information that was inaccessible at the time of the incident.1 In Nattrass v. Weber, the patient sought treatment for a leg fracture after falling from a ladder. Following surgery, the patient was administered a blood thinner but had a rare reaction causing it to have the opposite effect.2 With no knowledge of the reaction, hospital staff responded to the clotting by administering more blood thinner directly into the leg. As a result, both legs were amputated. Although the decision to administer additional blood thinner before obtaining the results of a blood test was clearly wrong in hindsight, the medical staff followed standard practice and this practice was not negligent despite the severe harm it caused the patient.3
II. R. v. STEPHAN: THE DISASTROUS CONSEQUENCES
Last year, the Supreme Court of Canada decided R. v. Stephan,4 a notorious case dealing with disastrous consequences. The Stephan case was interesting because it dealt with the medical choices of parents, rather than doctors or nurses, and it considered criminal liability for those choices.5 Another surprising aspect of this criminal case was that the parents did not intentionally harm or withhold lifesaving care from their child, but rather attempted to provide the care they viewed as best in the circumstances, albeit wrongly or misguidedly so.
The accused were the parents of Ezekiel, a young boy who died from meningitis after he did not receive the medical care he required. When Ezekiel began to exhibit symptoms, the Stephans consulted a family friend who worked as a nurse and did so again when the symptoms worsened. Additionally, they gave Ezekiel natural supplements, consulted a naturopathic clinic, and called 9-1-1 when he stopped breathing (after first calling Ezekiel’s grandfather). Over the two weeks these events occurred, the Stephans never took Ezekiel to a doctor, even when advised to do so by their family friend and the naturopathic clinic. Instead, they conducted their own research and administered their own treatments. The Stephans may have provided what they believed to be the best care, but they nonetheless failed to provide Ezekiel the care he required to survive.
Ezekiel’s parents were charged under s. 215(1) of the Criminal Code6 for failing to provide the necessaries of life. The Stephans were found guilty at trial7 and their appeal was dismissed by the Alberta Court of Appeal in 2017.8 On May 18, 2018, the Supreme Court of Canada in a short, three paragraph decision, allowed the Stephans’ appeal and quashed their convictions.9 Justice Moldaver, on behalf of the Supreme Court of Canada, indicated that they were in “essential agreement” with Justice O’Ferrall’s dissent at the Court of Appeal10 and, in particular, that they agreed “the learned trial judge conflated the actus reus and mens rea of the offence and did not sufficiently explain the concept of marked departure in a way that the jury could understand and apply it.”11 Therefore, the case will return to trial.
III. PROVIDING THE NECESSARIES OF LIFE: PARENTAL DUTIES
It is unfortunate that the Supreme Court of Canada did not take advantage of this opportunity to unpack the meaning of marked departure as it applies to parental decision-making on medical matters under s. 215(1). At the Court of Appeal, O’Ferrall J. stated that although s. 215(1) “may require an objective or community standard or the establishment of a societal minimum for the conduct of parents and care-givers, the fact is that the section does not purport to prescribe specific parenting or care-giving standards.”12
The Stephans did not fail to provide what they thought were the necessaries of life and the resulting death of Ezekiel did not alone make their choices criminal. In order to be considered criminal, their actions must also have constituted a marked departure from the actions of a reasonably prudent parent in the same circumstances.13 As O’Ferrall J. noted, the concept of marked departure must be carefully explained because it is a particularly challenging legal concept14 and because there are no set “code[s] or standards when it comes to parenting or caregiving,” unlike other conduct, such as driving.15 The trial judge failed to articulate separately the actus reus and mens rea, creating room for the resulting death of Ezekiel to improperly influence the jury’s finding of marked departure.
This lack of guidance is problematic because s. 215(1) is not a strict liability offence and Ezekiel’s death alone does not and should not fulfill the requirements of the offence. Although some may view the Stephans’ actions as a clear marked departure, the potential consequences of such a finding should be considered. What if parents do not take their child for yearly medical check-ups and as a result, a fatal disease is not diagnosed in time for effective treatment? What if they fail to vaccinate their child against a particular illness which the child later contracts and is unable to recover from? Or what if, as in R. v. Brennan,16 a breastfeeding mother does not realize she is insufficiently nourishing her newborn child?17 These examples may attract more or less sympathy from different readers but more notably they demonstrate the importance and complexity of the marked departure requirement in relation to parenting.
At the Court of Appeal, Justice McDonald responded to O’Ferrall J.’s dissent and stated that O’Ferrall J. was demanding a degree of specificity for jury instruction that the offence did not require. However, caution and specificity are necessary because of the acute risk of hindsight bias in health law matters. This risk is particularly relevant in this case, because the accused were not medical doctors and should not be held criminally responsible on the basis that they failed to do what a medical doctor in the same circumstances would have done.18 Furthermore, this was a criminal case assessing moral blameworthiness and whether there was “conduct that merits punishment,” a determination dependent under s. 215 on the degree of negligence exhibited by the accused.19 The trial judge’s jury instructions blended elements of the offence together, gave the impression that the offence was a strict liability offence, and ultimately gave the jury “little choice but to convict.”20
Many laws address difficult, and often unfortunate, circumstances arising in our communities. Those unfortunate circumstances involving children can be particularly challenging to approach without asking “what if?” and “why did we not do better?” Although there were disastrous consequences in Stephan, consequences alone cannot determine the guilt or innocence of the accused. By law, the actions in question must have also constituted a marked departure from the actions of a reasonably prudent parent in the same circumstances. The mens rea should have been explained carefully and separately because of the dangers of hindsight bias in two respects: 1) the medical nature of the issue and 2) the tragic nature of the case. To eliminate or diminish this element endangers the legal process by allowing regret and hindsight, rather than law, to rule the day. Only time, and proper jury instruction, will tell if the Stephans’ actions were or were not a marked departure as the case returns to trial.
* JD Candidate (2019).
1 Nattrass v Weber 2010 ABCA 64, 316 DLR (4th) 666.
2 Ibid at para 15.
3 Ibid at para 42.
4 2018 SCC 21, 423 DLR (4th) 52 [Stephan SCC].
5 Lisa Silver, “Who are the ‘Parents of the Nation’? Thoughts on the Stephan Case and Section 215 of the Criminal Code” (24 May 2016), ABlawg (blog), online: <https://ablawg.ca/2016/05/24/who-are-the-parents-of-the-nation-thoughts-on-the-stephan-case-and-section-215-of-the-criminal-code>, archived: <https://perma.cc/ZV2L-JLFF>. Lisa Silver notes that the line between “bad” parenting and “criminal” parenting may not be as clear as one would think. Silver also raises the central challenge of this topic by recalling Prime Minister Pierre Elliott Trudeau’s statement: “The state has no business in the bedrooms of the nation.” Similarly, how far can or should the state reach into the decisions made by parents on behalf of their children and at what point has the state gone too far?
6 RSC 1985, c C-46.
7 R v Stephan, 2016 ABQB 319.
8 R v Stephan, 2017 ABCA 380, 423 DLR (4th) 56 [Stephan CA].
9 Stephan SCC, supra note 4.
10 Ibid at para 1.
11 Ibid at para 2.
12 Stephan CA, supra note 8 at para 251.
13 Ibid at para 265.
14 Ibid at para 247.
15 Ibid at para 250.
16 2006 NSPC 11, 243 NSR (2d) 18.
17 Silver, supra note 5. Lisa Silver discusses this example in her blog on parenting standards in criminal law in the context of the Stephan case.
18 Stephan CA, supra note 8 at para 251.
19 Ibid at para 264, citing R v JF, 2008 SCC 60 at para 67,  3 SCR 215.
20 Ibid at para 214.