As professional pilots we continue to see a growing trend toward demonizing people who make mistakes. It's a topic we might want to consider as the likelihood of receiving a prison sentence for making a professional mistake increases.
The paper below by Sidney W. A. Dekker delves into this growing area of criminology.
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It's a fine line.
I hate the thought of it becoming the 'popular' thing to do, but I also recall the days of senior surgeons being treated like gods. No one could make comment.
Threat of prosecution - with possible imprisonment - is something crews do not need on a dark and stormy night. They've got enough pressure as it is. And remember the difference between them and say, a surgeon, who isn't going to be maimed or killed if he gets it wrong.
People in positions of power, need to be more accountable themselves. Supposing we could pillorize a judge for getting things wrong. I have the distinct feeling the structure of the law would change overnight.
When I worked as a Signaller in the railway industry in the UK it was impressed upon us during training that we could be criminally liable if anything went wrong - it certainly got our attention!
That said I think it would be a retrograde step for pilots, in general, to be held criminally liable. I guess negligence has to be proved but then thats before we even mention the Board of a company being liable too.
To quote from Dekker's paper, "Another effect, with possible parallels in other industries, is the practicing of "defensive medicine", which increases the use of unnecessary tests and procedures and fuels the rise in healthcare costs (Sharpe, 2004)."
At a recent (mandated) ethics lecture I ventured to the Professor that we were now moving away from ethics-driven ethics and towards litigation-driven ethics - that we were making ethical decisions less based on their ethical rightness than on the likelihood of legal action.
A ‘Deep Thought’ view of this is ‘42’, “the Ultimate Question of Life, The Universe, and Everything.
But more seriously, Dekker appears to cover the issues very well while calling for more research, yet fails to provide guidance as how individual professionals or the industry might manage such situations meantime.
This ‘failure’ to provide a solution, an academic failing - not attacking academics in general or any other professional, often results in the problem being passed on. ‘Academics’ are called to provide specialist ‘evidence’ in court where a social judgement is to be made, i.e. the professional academic/witness can-sit-on-the-fence by providing a balanced view of the issues, or look one way or another without commitment. ‘Professional’ witnesses might be, or could be labelled as biased, thus we might not be our best form of defence. Yet the professional operator still has to commit to everyday activity with all of the hazards and pitfalls of ‘error’ (I prefer performance variability). Dekker does not stray into this area which is surprising given that he is an academic-pilot and thus could have the opportunity to look both ways.
As professionals we have to work with the knowledge of these shortfalls – its life, there are risks. This is not an attitude of resignation, but a form of risk management; unfortunately the risk is very difficult to define. IMHO the risk of criminalisation should not be feared; such thoughts can be detrimental in operations - “we have nothing to fear but fear itself”. Thus risk management in this instance, also involves overcoming (quantifying) our fear; education, knowledge, and experience (expertise) can help with this. Early in my career I was encouraged to continuously seek improvement – professionalism. Many years later, by means of explanation, I was advised that the best action in any situation was to ‘do what is right’ – as judged to the best of your professional ability. ‘Doing what is right’ can provide the basis for legal defense.
However, as Dekker discusses, the legal outcome may depend on who makes the judgement of ‘what is right’ (often ‘what was right’ due to hindsight), who draws the line, or even if a line is required at all. Our industry should not be concerned with the negative. Fight a good corner, be mindful of the issues outlined in the paper, but don’t expect definitive results. This appears to be a problem without solution. Instead put more effort into the positive aspects of social education, presenting the industry in an appropriate light, working with government, regulators, and media to sway public opinion. This might best be satisfied by every individual and organisation striving for professional excellence, and helping others to do similar:- ‘do what is right’, as judged by the best of our professional ability.
In practical terms, I used to depend upon BALPA to defend me until a friend who had tried to go down that route, was told by the BALPA lawyers that they did not want to know.
Ever since then, I have had totally seperate Legal Insurance such that they have to represent me, even if I end up sliding off the end of a rubber-covered wet runway at Athens.
It is not that expensive.
Although, having retired, I now only fly little puddlejumpers, I still keep my insurance going. You would be surprised to find out how much damage you could cause if you clipped the Spinnaker Tower and then hit HMS "Victory".
Being a neurosurgeon, I can say, Medicine has learned a lot from aviation professionals in terms of safety during the last decade. Why not vice versa? Would an "informed consent" for all pax and all other involved not make a difference? Signing an "informed consent" would mean to subject oneself to the pilot´s performance and unintentional mistakes (which they would always be, because no pilot would endanger his own life) without being able to claim/prosecute him/her?
(Disclaimer: I am no professional pilot, just a boffin working on the topic of safety culture as of late who has consequently been delving into pertinent literature for several months now.)
Mostly agree with Dekker (as usually), in addition to his analysis I'd add/emphasize two points regarding the topic of criminalization of professional mistakes. If any safety is to be gained from prosecuting people for bad calls or mishandling a situation (apart from the discussion about the effectiveness of criminal prosecution for preventing misconduct of any kind), IMHO
a) the "bad apple" view (i.e., that it is single incompetent sharp end operators who cause accidents by messing up a safe system) must be abandoned, implying that the people at the blunt end who create the working environment must be held accountable for their decisions as well. In this case, this would probably not so much be the judges as management and the regulative powers-that-be. (Acknowledging that for them, too, putting protection over production is often an uphill battle with cost-cutting, productivity, and removing slack being the neoliberal idols. You don't get rewarded for creating a climate of safety and resilience, especially since this is hard to measure and catastrophic failures are rare events anyway. All incentives much more suggest to go with the flow, cut costs and get staff to do more with less resources);
b) prosecution must not be prompted by outcome (accident) but by operators' irresponsible actions regardless of the outcome. Had the pilots of Air Florida 90 survived, they would almost certainly have been prosecuted. By contrast, I doubt that criminal charges will ever be brought up against the pilot for the stunt displayed in Take off with snow on wing , and that's not at all a matter of US vs. USSR. There is a sordid double standard concerning sanctions for violating safety standards, depending on whether this results in an accident or not, undoing any "educational" message that could be sent by prosecutions.
there are two sides to the ultimate responsibility, we as captains/pilots/aircraft commanders, are faced wtih....
responsiblity
and authority
we don't have the authority to tell boeing how to make planes, or our bosses on the board of directors of the airlines which planes to buy, or how to run the airline
so I know , after reading my contract and flight ops manual, that I am covered by the company...something to protect my six oclock.
of course if I was in a foreign country I might get arrested...another reason to fly in the good old USA
Would an "informed consent" for all pax and all other involved not make a difference?
I always assumed informed-consent forms were legally meaningless, whether signed at a ski slope, a sport-parachuting site, a racetrack or anywhere else. At least in the U. S.
Many things in aviation are inherited from marine. Except one thing - flight crew members are very rarely prosecuted, while it's quite a norm for ship Captains and top officers. Why the buzz? Those jobs are coming together with responsibility.
I was chatting to a super-tanker Captain the other day and he almost fall from a chair when heard that Captain who wrote-off an aircraft on a landing, possibly with injuries to pax, is standing a fair chance not to end up in jail, not to loose his license, not to put an end to his carrier and in many cases not even to be fired!
Informed consent for flights? It could be inferred that boarding the aircraft is a form of consent.
Surgery is something done to an individual who must understand the risks and the consequences even if the outcomes are highly risky. A person's obesity/diabetes/COPD and myriad other conditions may well amplify the risk, but it is a personal decision. As a group, passengers board an aircraft, its a generalisation. Even if a passenger would be at higher risk of injury during flight (I'm thinking of barotrauma to the ears in one case I can recall) does that mean that the risk for every passenger is going to be the same? Clearly not. For that matter, would it be the captain's concern that some people would be more liable to injury than others? Possibly, if it were a clearly debilitated person, but for the most part, its the passenger's responsibility to ensure that they are fit enough to undergo the flight, unless there are substantial reasons why their ability would eb compromised such as repatriation flights, for which the risk assessments are well documented.
Also, with a person with total mental capacity, consent can be revoked at any point. If I were on the flight from SVO with snow on the wing (This site passim) I would revoke my consent to be flown. Probably very loudly.
Interesting that other professions do understand that they can be prosecuted for deviating from their employer's procedures and/or breeching the various laws. Something that was made very clear nearly 40 years ago when I was just starting out in the profession I am in.
It rarely happens but it is not unknown, so I would, perhaps, ask the question why should aviation be any different
How about this one: I asked at a recent management meeting what would happen to one of our pilots under the law that allows USA to extradite citizens from their own country to stand trial in the US. The question was based around the idea that if we had an accident and killed or maimed a US citizen and the crew were found in no way culpable for the crash (by the local AAIB) a US prosecutor could claim that under US law the crash was the fault of the pilots (lets be brutaly frank about this, in the reality of most crashes at some point, under extreme pressure a pilot is likely to make an error, I know I did when my crash was going on, the AAIB just said they weren't surprised with so many systems failures happening) then could our pilots be extradited to the US to face criminal charges?
Its opened a smallish can of worms, an initial enquiry to a lawyer has resulted in a conditional yes, we are awaiting a more definitive response. Its a tad alarming as we fly a lot of US citizens in Europe without the flight going anywhere near the US, but the long arm of the US system (a law which was meant to be used in the War on Terror) may reach out and touch us here. I know of 2 cases where following criminal investigation in the UK, with the people concerned found innocent by local authorities they have been put on a plane and sent to face charges in the US for crimes "commited" in another sovereign state.
Informed consent has virtually no bearing on the criminal law. It is the State that prosecutes, not the individual victim. It might amount to a defence in a civil claim but would not provide a defence to a criminal prosecution for recklessness or negligence.
Consider the current debate over assisted suicide for the terminally ill. In the past "mercy killings" have resulted in criminal charges and in some cases convictions. Although there are now more liberal guidelines issued to prosecutors, theoretically assisting a suicide could still result in criminal charges including murder. The fact that the "victim" has asked, nay begged, for help is irrelevant.
Criminal prosecutions in the UK used to be fairly dispassionate. The state prosecuted and took the decision as to what was or was not in the public interest. A person was prosecuted and sentenced on the basis of their actions, not necessarily for the consequences. As a result of politicians pandering to newspapers and headline grabbing calls for vengeance we see laws and sentencing policy gradually changing.
A prime example of this is the attitude towards causing death by careless driving. Causing death by dangerous or reckless driving (ie deliberately bad driving) has been punishable by imprisonment for many years and the maximum sentence has been increased considerably in the last few years. Reckless driving involves deliberately risking the safety of others and reckless driving per se carries the threat of a prison sentence. Sentencing here is influenced by a combination of the driver's actions and the consequences.
Careless driving on the other hand involves no more than a momentary mistake or lack of judgement. This was previously reflected by the fact that it was punishable by a fine. The same mistake may result in no more than a scratch to a bumper or it might result in death. Now, however, and because of the introduction of the offence of causing death by careless driving, if the scratch ensues then a fine is still the maximum, yet if death results the driver faces up to five years in prison - for a mistake anyone of us might make and behind which there was no intent. Sentencing has been entirely influenced by the consequences and not by the driver's actions.
Deliberate flouting of rules or regulations or deliberate risk taking should be criminalised and punished. Basic human errors should not be or at least not to the same extent.
Sir Niall Assuming that the law of the US state involved allowed for the prosecution of a foreign individual for an offence committed against a US citizen anywhere in the world and there was an appropriate offence to charge then the answer would appear to be yes.
It would entirely depend upon the law in the US. The scenario you refer to would not apply to an offence committed against a UK citizen abroad by a foreign national. In the UK, there is a well established presumption in construing a statute creating an offence that, in the absence of clear words to the contrary, it is not intended to make conduct taking place outside the territorial jurisdiction of the Crown an offence triable in an English Court. This view, expressed in the case of Air India v Wiggins, may been modified slightly as a result of the comments of Lord Diplock in a subsequent case where he made reference to the rules of international comity "which do not call for more than that each sovereign state should refrain from punishing persons for their conduct within the territory of another state where that conduct has no harmful consequences within the territory of the state that imposes the punishment". His Lordship considered that in the absence of an express term a court might need to look at the intention of Parliament but in so doing would apply the above.
So, if there is a US law that allows prosecution in the US for US offences committed against a US citizen abroad the answer to extradition is yes. In the absence of such a provision the answer is likely to be no.
Last edited by Legalapproach; 18th May 2012 at 07:03.
