Should bystanders to Ezekiel Stephan's illness be prosecuted?

"If we do not start prosecuting bystander failure to help children survive treatable illnesses, then will there be a third dead Alberta child?" The University of Calgary's Juliet Guichon and Dr. Ian Mitchell raise the questions of duty and enforcement.

Alberta statute imposes duty on all adults to report situations where a child is at risk

David Stephan, 32, and his wife Collet Stephan, 36, were convicted of failing to provide the necessaries of life for nearly 19-month-old Ezekiel, who died in March 2012. (CBC/Facebook)

Now that Ezekiel Stephan's parents have been found criminally responsible for failing to provide the toddler the necessaries of life, another legal question arises.

Should the bystanders to Ezekiel's illness be prosecuted under child welfare legislation?

Meningitis is treatable with antibiotics and supportive therapy (like intravenous fluids and oxygen) if the child is brought to medical attention in time. 

People other than the parents might have helped Ezekiel receive the medical care that almost certainly would have saved him.

Should they be prosecuted?

A legal duty

An Alberta statute — the Child, Youth and Family Enhancement Act — imposes a duty on all people to help child welfare officials care for children by requiring adults to report that a child needs help.

The statute says: "Any person who has reasonable and probable grounds to believe that a child is in need of intervention shall forthwith report the matter to a director." 

It also says a child is in need of intervention if, among other reasons, the parent or guardian "is unable or unwilling to obtain for the child […] essential medical […] treatment that is necessary for the health or well-being of the child". 

Taken together, these provisions mean that if an adult believes that a sick child is not receiving necessary medical attention, then the adult should call 310-0000 to obtain the telephone number of the local child welfare office or call the hotline at 1-800-387-KIDS (5437) to speak with a caseworker.

Or a concerned person could simply call 911. It is not difficult.

Any person who fails to comply with the duty to report such concerns is liable to a fine of up to $2,000 or six months in jail.

In essence, the statute makes clear that adults cannot simply say, "I told the parents to take the very sick child to a doctor."  If the parent is unable or unwilling to do so, then they must report this fact to child welfare.

The statutory provisions effectively require adults to focus on the child and to give serious consideration to whether the child is likely to receive what it needs to live.

Did the Lethbridge nurse who suspected that the toddler had meningitis call child welfare to report that Ezekiel might not be receiving necessary medical treatment?  Did the naturopath or her assistant? Did Ezekiel's grandfather?

If those people knew that the child's parents were unable or unwilling to provide necessary medical treatment and, if they did not call child welfare, then will they be prosecuted?

It might seem cruel to ask such a question. After all, Ezekiel is dead and nothing can bring him back.

But this is the second time that an Alberta child has died a slow, preventable death.

It's happened before

In March 2013, seven year-old Ryan Alexander Lovett died in Calgary after contracting a strep infection that kept him bedridden for 10 days.

Ryan's mother is expected to go on trial later this year after being charged with criminal negligence causing death and failing to provide the necessaries of life.

Ryan Lovett, 7, died in 2013. His mother, Tamara, is accused of refusing to take the sick boy to a doctor. (YouTube)

Police said that Ryan's mother did not take him to the doctor and chose to treat the bacterial infection with homeopathic medicine. News reports at the time claimed that, during those 10 days, the mother's friends were worried for the sick child's health and urged the mother to take her son to the doctor.

Did any of those people call child welfare, or simply call 911?

Provided that they were calling with genuine concern for the child, their identities would have been protected. The sick child's family would never know who called to help the child.

Ezekiel died. Ryan died.

If we do not start prosecuting bystander failure to help children survive treatable illnesses, will there be a third dead Alberta child?

It is important to stress that parents and guardians are entitled to make decisions for children only if they are acting in the child's best interests.

If parents are not able or are not willing to act in the child's best interests, then other people must become involved. They must report their concern to the state official who is empowered to investigate and to protect the child, if necessary.

It takes a village

It is difficult to raise children. No family is perfect. But sometimes parents have beliefs that are simply wrong and could lead to a child's death.

Obviously, the benefit of prosecution is not just to denounce bystander inaction. It is to prevent future deaths. 

It is up to each of us to help children in our community. As Ryan and Ezekiel's deaths make evident, it is past time to affirm that it takes a village to raise a child.

About the authors:

Juliet Guichon is a medical bioethicist and Dr. Ian Mitchell is a pediatric specialist. Both are faculty members in the Cumming School of Medicine at the University of Calgary.