An airline safety manager told me recently of an event where an aircraft of theirs had departed from a runway after closing time of the airport, and the runway lights had been switched off. The chief pilot, on hearing about the incident, said to the safety manager: “Bring those idiots to me—now! I don’t care who they are, they’re dead!”
If you help run the organization, or a part of it, how would you respond to evidence of such an incident? The safety of your organization has to do with being open, with trust, with a willingness to share information about safety problems without the fear of being nailed for them. But most people also believe that the openness of a just culture is not the same as uncritical tolerance. If “everything goes,” then in the end no problem may be seen anymore as safety-critical—and people will stop talking about them for that reason. It is this tension between
• Wanting everything in the open
• While not tolerating everything
This book covers how obligations to disclose are about wanting everything relevant in the open—and how a perceived lack of justice can mess that up really quickly. It covers the problems with not tolerating everything—because “everything” is not about a clear line or definition, but about who gets to decide. It covers how a just culture is about the always uneasy, but exciting melding of the two. It is exactly the tension between wanting everything in the open so that you can learn and improve, but not necessarily tolerating everything so that you can be “just.”
For both retributive and restorative practices to be effective, you have to start to take an honest look at what you do in your own organization. Only this will allow you to begin building relationships and trust between the parties that matter. Even if you are torn between retributive and restorative approaches to justice in your organization, there are some things you can evaluate or accomplish before and after an incident.
BEFORE ANY INCIDENT HAS EVEN HAPPENED
1. See if you can abolish financial and professional penalties in the wake of an occurrence. Suspending practitioners after an incident should be avoided too. These measures turn incidents into something shameful. If your organization has these kinds of rules in place, you can lose out on much valuable safety information.
2. Explore having a staff safety department, not part of the line organization, that deals with incidents. The direct manager (supervisor) of the practitioner should not necessarily be the one who is the first to deal with that practitioner in the wake of an incident (other than perhaps relieving him or her temporarily to deal with the stress and aftermath). Aim to decouple an incident from what may look like a performance review of the practitioner involved. Any retraining of the practitioner involved in the incident will quickly be seen as punishment (and its effects are debatable), so this should be done with utmost care and only as a last resort. In fact, whether a practitioner should undergo retraining, for example, is something that should be discussed not only with the practitioner in question (rather than just handed down from above), but also checked with a group of peers who can consider the wider implications of such a measure in the wake of an incident (e.g., on the reputation of that practitioner, but also on the way incidents will be seen and treated by colleagues as a result).
3. Be sure that practitioners know their rights and duties in relation to incidents. Make clear what can (and typically does) happen in the wake of an incident. One union had prepared little credit-sized cards on which it had printed the practitioner’s rights and duties in the wake of an occurrence (e.g., to whom they were obliged to speak, such as investigators) and to whom not to speak (e.g., the media). Even in a climate of anxiety and uncertainty about a judiciary’s position on occurrences, such knowledge about rights and duties will give your practitioners some anchor, some modicum of certainty about what may happen. At the very least this will prevent them from withholding valuable incident information because of misguided fears or anxieties.
4. Start with building a just culture at the very beginning, during basic education and training for the profession. Make trainees aware of the importance of reporting incidents for a learning culture, and get them to see that incidents are not something individual or shameful but systemic information about and for the entire organization. Convince new practitioners that the difference between a safe and an unsafe organization lies not in how many incidents it has, but in how honestly it deals with the incidents that it has.
5. Implement or review the effectiveness of any debriefing programs or critical incident/stress management programs you may have in place to help practitioners after incidents (and if you don’t have any in place, consider building such programs). Such debriefings and support form a crucial ingredient in helping practitioners see that incidents are “normal,” that they can help the organization get better, and that they can happen to everybody. Empowering and involving the practitioner him- or herself in the aftermath of an incident is the best way to maintain morale, maximize learning, and reinforce the basis for a just culture.
AFTER AN INCIDENT HAS HAPPENED
1. Do what you can to make sure the incident is not seen as a failure or a crisis, neither by management nor by colleagues. An incident is a free lesson, a great opportunity to focus attention and to learn collectively. Don’t ask who is responsible, but ask what is responsible for producing the incident.
2. Monitor and try to prevent stigmatization of the practitioners involved in an incident. They should not be seen as failures or as liabilities to work with by their colleagues. This is devastating not only for them, but also for every practitioner and by extension the organization. Reintegrate practitioners into the operation smoothly and sensitively, being aware of the possibility for stigmatization by their own colleagues.
3. Conduct a learning review of the event, not necessarily an investigation. A learning review asks not who was responsible for causing the incident, but what was responsible. It tries to control the hindsight bias. It focuses on forward-looking accountability rather than backward-looking accountability (see later for more on these topics).
4. If your organization pursues a retributive path after an incident, at least make sure that the substantive and procedural assurances from Chapter 1 are in place that can make such a process anywhere near “just.” Also, ask yourself whether this response address harms, needs, and deeper causes, and whether it is adequately victim oriented (including both first and second victims) and respectful to all parties and stakeholders involved in the aftermath of the incident.
5. If your organization wishes to pursue a restorative path instead, then be sure to ask who is hurt both inside and outside your organization, what their needs are, and to what extent you have the obligation to meet any of those needs. If not you, then who does have that obligation? Your organization will also have needs (this may range from public image to business continuity). You will need to find out what serves those needs best, and how you can avoid them from clashing with other needs (e.g., those of the first and second victims) by making the just culture process both inclusive and collaborative.
Ivan “Pup” Pupulidy, one of my students and an officer in the US Forest Service, introduced the idea of a learning review to his community. If we don’t find fault after an incident, he asked, then what do we do? The aim of the learning review, he said, is to understand the rationale for the actions and decisions involved in the incident and then, if possible, to learn from them. Achieving this goal, he argued, requires a deliberate effort to place decisions and actions in the detailed context in which they occurred, including an understanding of the pressures faced by all those involved in the incident.
People involved in the review were asked to suspend judgment, from the perspective of hindsight, and instead engage as active participants in the process of learning from the event. By coming to understand why it made sense for the people involved, at all levels of the organization, reviewers began to understand what makes the system brittle and what might make it resilient.
The learning review, he said, will not draw conclusions in the traditional way that reports have done in the past. Conclusions can sometimes close the door on learning, by suggesting that all information has been found and judgments can be made. Judgment, however, is always biased from the perspective of the writer and/ or reader. So this review allows sometimes unresolved concepts to emerge, allowing tension to be created for the reader. This tension can inspire dialogue in the community and the organization, and encourages sensemaking around the presented concepts. This way, the learning review can become a living process. Introducing one of the learning reviews, he said, “This review will answer some questions, but it is likely to raise others. It is designed to do just that, which makes it different from traditional reports. Look inside the cover of this Review for answers, but more importantly, look inside yourself.”94
There might be questions from the regulator who is watching over you. It can sometimes be difficult to persuade a regulator that you are doing something about the problem if you do not show a strong retributive response. And indeed, this may also have implications for your own position or survival as organizational manager. I have seen that it takes courage to convince the regulator, colleagues, a board, and indeed other parties in society, that you are doing a lot when you respond restoratively. In particular, you help the organization learn and hopefully prevent similar events in the future. You can ensure that the stories, the accounts surrounding the tragic event, are preserved and shared. You can take on board the recommendations they imply. You can create the conditions for a culture where your people feel free to share safety-critical information with you. You show you trust them with safety-critical work, and they trust you to treat them fairly and humanely when things go wrong.
An operations manager of a mine recently asked me whether I thought it would be just to fire employees who show up for work while drunk or drugged. This is precisely what his mine does. The employee is fired, no questions asked, no appeal offered.
In a raw, narrow sense, that could be seen as just, I told him. After all, if this person is going to operate heavy equipment that can harm other workers, you want the person to be sober.
But, I said, perceptions of injustice may start to seep in if that is all that you do. Consider the location of your mine, I said. It is in the absolute middle of nowhere, a hot, dusty place. You have fly-in, fly-out workers, like on an oil rig. When out there, the guys (mostly guys) are isolated. They have nothing much for entertainment, very little in the way of social support except each other.
I am not making excuses for somebody who shows up drunk or drugged, I said, but what you want to consider is opening up a parallel inquiry into the conditions that make it more likely for people to do so. What is it in the situation in which you configure them that makes them vulnerable? If you don’t do that, and just fire your people, then other workers might begin to wonder about your understanding of their conditions, your interest in them, and indeed whether what you are doing is just after all. And you might well harm your own organization, I said. You are going to need those people. They are hard to replace. And you do not want your mine to get a reputation that keeps people from wanting to work there.
Finally, I said, if you want to keep your instant-firing policy in place, you want to make sure that the decisions about firings have a good foundation in your workforce. That it is not just you who decides. Make sure there is a constituency for the policy, involve your workers in its language, its application, and the judgments that arise from it. They are the ones, after all, who are going to have to work, or not, with that person. If they feel that judgment is going to be passed over their heads, without any involvement, workers may start covering for each other—helping colleagues hide the evidence of drunkenness or drugs. As a manager, you won’t know about it, but the safety of your operation is going to be hollowed out from the inside out.
NOT INDIVIDUALS OR SYSTEMS, BUT INDIVIDUALS IN SYSTEMS
For some, this might still leave the question from the preface unanswered. Can people in your organization simply blame the system when things go wrong? To many, this seems like a cop-out, like an excuse to get defective or responsible practitioners off the hook. Of course we should look at the system in which people work, and improve it to the best of our ability. But safety-critical work is ultimately channeled through relationships between human beings (such as in healthcare), or through direct contact of some people with the risky technology. At this sharp end, there is almost always a discretionary space into which no system improvement can completely reach. Rather than individuals versus systems, we should begin to understand the relationships and roles of individuals in systems.17
A DISCRETIONARY SPACE FOR PERSONAL ACCOUNTABILITY
A system creates all kinds of opportunities for action. And it also constrains people in many ways. Beyond these opportunities and constraints, we could argue that there remains a discretionary space, a space that can be filled only by an individual care-giving or technology-operating human. This is a final space in which a system really does leave people freedom of choice (to launch or not, to go to open surgery or not, to fire or not, to continue an approach or not). It is a space filled with ambiguity, uncertainty, and moral choices.
Systems cannot substitute the responsibility borne by individuals within that space. Individuals who work in those systems would not even want their responsibility to be taken away by the system entirely. The freedom (and the concomitant responsibility) that is left for them is what makes them and their work human, meaningful, a source of pride. But systems can do two things.
1. One is to be as clear as possible about where that discretionary space begins and ends. Not giving practitioners sufficient authority to decide on courses of action (such as in many managed care systems), but demanding that they be held accountable for the consequences anyway, creates impossible and unfair double binds. Such double binds effectively shrink the discretionary space before action, but open it wide after any bad consequences of action become apparent (then it was suddenly the physician’s responsibility after all).
The same goes when asking dispensation for an unqualified crewmember to proceed with an instrument approach in the November Oscar 747 case described at the beginning of this book. The system is clear in its routine expectation that a commander will ask such dispensation. And if all goes well, no questions will be raised. But if problems occur on the approach, the request for dispensation suddenly becomes the commander’s full responsibility. Such vagueness of where the borders of the discretionary space lie is typical, but it is unfair and unreasonable.
2. The other thing a system can do is decide how it will motivate people to conscientiously carry out their responsibilities inside of that discretionary space. Is the source for that motivation going to be fear or empowerment? Anxiety or involvement? “There has to be some fear that not doing one’s job correctly could lead to prosecution,” said an influential commentator in 2000. Indeed, prosecution presumes that the conscientious discharge of personal responsibility comes from fear of the consequences of not doing so. But neither civil litigation nor criminal prosecution work as a deterrent against human error. Instead, anxiety created by such accountability leads, for example, to defensive medicine, not high-quality care, and even to a greater likelihood of subsequent incidents.60 The anxiety and stress generated by such accountability adds attentional burdens and distracts from conscientious discharge of the main safety-critical task.27 Rather than making people afraid, systems should make people participants in change and improvement. There is evidence that empowering people to affect their work conditions, to involve them in the outlines and content of that discretionary space, most actively promotes their willingness to shoulder their responsibilities inside of it.30
Haavi Morreim reports a case in which an anesthesiologist, during surgery, reached into a drawer that contained two vials, sitting side by side.95 Both vials had yellow labels and yellow caps. One, however, had a paralytic agent and the other a reversal agent to be used later, when paralysis was no longer needed. At the beginning of the procedure, the anesthesiologist administered the paralyzing agent, as per intention. But toward the end, he grabbed the wrong vial, administering additional paralytic instead of its reversal agent. There was no bad outcome in this case. But when he discussed the event with his colleagues, it turned out that this had happened to them too, and that they were all quite aware of the enormous potential for confusion. All knew about the hazard, but none had spoken out about it.
The question is of course why no anesthesiologist had flagged this problem before. Anxiety about the consequences of talking about possible failures cannot be excluded: it has squelched safety information before.
Even more intriguing is the possibility that there is no climate in which practitioners feel they can meaningfully contribute to the context in which they work. Those who work on the safety-critical sharp end every day, in other words, did not feel they had a channel through which to push their ideas for improvement. I was reminded of one worker who told me that she was really happy with her hospital management’s open-door policy. But whenever she went through that open door, the boss was never there.
Do we really think we can prevent anesthesiologists from grabbing a wrong vial by making them afraid of the consequences if they do? Or do we want to prevent them from grabbing a wrong vial by inviting them to come forward with information about that vulnerability, and giving us the opportunity to help do something more systemic about the problem?
BLAME-FREE IS NOT ACCOUNTABILITY-FREE
Holding people accountable and blaming people are two quite different things. Blaming people may in fact make them less accountable: they will tell fewer accounts, they may feel less compelled to have their voice heard, to participate in improvement efforts. This also means that blame-free or no-fault systems are not accountability-free systems. On the contrary: such systems want to open up the ability for people to hold their account, so that everybody can respond and take responsibility for doing something about the problem.
Equating blame-free systems with an absence of personal accountability is shortsighted and not very constructive. Blame-free means blame-free, not accountability-free. The question is not whether we want practitioners to skirt personal accountability. Few practitioners do. The question is whether we want to fool ourselves that we can meaningfully wring such accountability out of practitioners by blaming them, suing them, or putting them on trial. No single piece of evidence so far seems to demonstrate that we can. We can create such accountability not by blaming people, but by getting people actively involved in the creation of a better system to work in. Most practitioners will relish such responsibility, just as most practitioners often despair at the lack of opportunity to really influence their workplace and its preconditions for the better.
John Allspaw, one of my students and a software engineer, had this way of explaining the idea of “blameless” postmortem to his community.96 It means investigating mistakes in a way that focuses on the situational aspects and the decision-making process of individuals proximate to the failure. Having a “blameless” postmortem process means that engineers whose actions have contributed to an accident can give a detailed account of
• What actions they took at what time
• What effects they observed
• Expectations they had
• Assumptions they had made
• Their understanding of timeline of events as they occurred
…and that they can give this detailed account without fear of punishment or retribution.
Why shouldn’t they be punished or reprimanded? Because an engineer who thinks he or she is going to be reprimanded is disincentivized to give the details necessary to get an understanding of the mechanism and operation of the failure. This all but guarantees that it will repeat itself—if not with the original engineer, then with another one in the future.
If we go with “blame” as the predominant approach, then we’re implicitly accepting that deterrence is how organizations become safer. This is founded in the belief that individuals, not situations, cause errors. It’s also aligned with the idea there has to be some fear that not doing one’s job correctly could lead to punishment. Supposedly, the fear of punishment will motivate people to act correctly in the future. This cycle of name/blame/shame can be looked at like this:
1. Engineer takes action and contributes to a failure or incident.
2. Engineer is punished, shamed, blamed, or retrained.
3. Trust is reduced between engineers on the ground (the “sharp end”) and management (the “blunt end”) looking for someone to scapegoat.
4. Engineers become silent on details about actions/situations/observations, resulting in “cover-your-ass” engineering (from fear of punishment).
5. Management becomes less aware and informed on how work is being performed day to day, and engineers become less educated on lurking or latent conditions for failure due to silence mentioned in step 4.
6. Errors are more likely; latent conditions can’t be identified due to step 5.
7. Repeat from step 1.
We need to avoid this cycle. We want the engineer who has made an error to give details about why (either explicitly or implicitly) he or she did what they did; why the action made sense to them at the time. The action made sense to the person at the time they took it, because if it hadn’t made sense to them at the time, they wouldn’t have taken the action in the first place. Only by constantly seeking out its vulnerabilities can organizations enhance safety.
A funny thing happens when engineers make mistakes and feel safe when giving details about it: they are not only willing to be held accountable; they are also enthusiastic in helping the rest of the company avoid the same error in the future. They are, after all, the most expert in their own error. They ought to be heavily involved in coming up with remediation items.
So technically, engineers are not at all “off the hook” with a blameless postmortem process. They are very much on the hook for helping us become safer and more resilient. Most engineers find this idea of making things better for others a worthwhile exercise.
So what do we do to enable a “just culture”?
• We encourage learning by having blameless postmortems.
• The goal is to understand how an accident could have happened, in order to better equip ourselves to prevent it from happening in the future.
• Instead of punishing engineers, we allow them to give detailed accounts of their contributions to failures. We gather details from multiple perspectives.
• We accept that the hindsight bias will cloud our assessment of past events, and we work hard to eliminate it.
• We make sure that the organization understands how work actually gets done (as opposed to how they imagine it gets done, via charts and procedures).
• Operational people inform the organization where the line is between appropriate and inappropriate behavior. This isn’t something that managers or others can come up with on their own.
Failure happens. Let’s take a hard look at how the accident actually happened, treat the engineers involved with respect, and learn from the event.
FORWARD-LOOKING ACCOUNTABILITY
“He or she has taken responsibility, and resigned.”
We often say this in the same sentence. We may have come to believe that quitting and taking responsibility are the same thing. Sure, they can be. But they don’t have to be. In fact, holding people accountable may be exactly what we are not doing when we allow them to step down and leave a mess behind.
Accountability is often only backward-looking. This is the kind of accountability in trials or lawsuits, in dismissals, demotions, or suspensions. Such accountability tries to find a bad apple, somebody to blame for the mess. It is the kind of accountability that feeds a press (or politicians, or perhaps even a company’s board), who may eagerly be awaiting signs that “you are doing something about the problem.” But for you and your organization, such backward-looking accountability could be pretty useless or even harmful—other than getting somebody’s hot breath off of your neck.
Instead, you could see accountability as looking ahead. Stories of failure that both respond to calls for accountability and allow people and organizations to learn and move forward, are essentially about looking ahead. In those stories, accountability is something that brings information about needed improvements to people or groups who can do something about it. There, accountability is something that allows people and their organization to invest resources in improvements that have a safety dividend, rather than deflecting resources into legal protection and limiting liability.
Virginia Sharpe, a philosopher and clinical ethicist who has studied the problem of medical harm for many years, has captured these dual demands in what she calls “forward-looking accountability.”1 Accountability that is backward-looking (often the kind in trials or lawsuits) might try to find a scapegoat, to blame and shame an individual for messing up. But accountability is also about looking ahead. Not only should accountability acknowledge the mistake and the harm resulting from it. It should also lay out the opportunities (and responsibilities!) for making changes so that the probability of recurrence is reduced. In the words of Sharpe,
The forward-looking or prospective sense of responsibility is linked to goal-setting and moral deliberation. Responsibility in this sense is about the particular roles that a person may occupy, the obligations they entail, and how those obligations are best fulfilled. But whereas responsibility in the retrospective sense focuses on outcomes, prospective responsibility is oriented to the deliberative and practical processes involved in setting and meeting goals.
Currently, the dominant view of responsibility is compensation to harmed parties and deterrence of further malpractice. Responsibility in this context is retrospective; its point is the assignment of blame. A systems approach to error emphasizes responsibility in the prospective sense. It is taken for granted that errors will occur in complex, high-risk environments, and participants in that system are responsible for active, committed attention to that fact. Responsibility takes the form of preventive steps to design for safety, to improve on poor system design, to provide information about potential problems, to investigate causes, and to create an environment where it is safe to discuss and analyze error.1
An explosion occurred at a Texas oil refinery in March 2005, as an octane-boosting unit overflowed when it was being restarted. Gasoline vapors seeped into an inadequate vent system and ignited in a blast that was felt five miles away. The explosion killed 15 people. An internal company study into the accident found that four of the company’s US executives should be fired for failing to prevent the explosion, and that even the company’s global refinery chief had failed to heed serious warning signals. The company’s “management was ultimately responsible for assuring the appropriate priorities were in place, adequate resources were provided, and clear accountabilities were established for the safe operation of the refinery,” said the lead company investigator.
Corporate budget cuts had compromised worker safety at the plant, an earlier report had found, and the refinery had had to pay a record fine for worker safety violations at its site. A safety culture that “seemed to ignore risk, tolerated noncompliance and accepted incompetence” was determined as a root cause of the accident. The global refinery chief should have faced and communicated “the brutal facts that fundamentally, the refinery was unsafe and it was a major risk to continue operating it as such.”97
Calls for accountability are important. And responding adequately to them is too. Sending the responsible people away is of course one response. But, remember from Chapter 1, that calls for accountability are in essence about relationships and trust. This means that breaking those relationships by getting rid of a few people (even if they are in positions of greater responsibility) may not be seen as an adequate response. Nor is it necessarily the most fruitful way for an organization to incorporate lessons about failure into what it knows about itself, into how it should deal with such vulnerabilities in the future.
ASK WHAT IS RESPONSIBLE, NOT WHO IS RESPONSIBLE
The question that drives safety work in a just culture is not who is responsible for failure. Rather, it asks what is responsible for things going wrong. What is the set of engineered and organized circumstances that is responsible for putting people in a position where they end up doing things that go wrong?
Shortly after midnight on June 21, 1964, James Chaney, Michael Schwerner, and Andrew Goodman were murdered by a group of White Citizens’ Council and Ku Klux Klan members in Mississippi. The three young civil rights activists had been in the state to help black Americans register to vote. A Neshoba County deputy sheriff, Cecil Price, stopped the three men on a tip from other white activists in Meridian, Mississippi, jailed them, and instructed his secretary to keep quiet about their incarceration. Meanwhile he notified his Klan associates, who assembled and planned how to kill the three civil rights workers.
With a fine of $20, the three men were ordered to leave the county. Price followed them to the edge of town, but pulled them over again and held them until the Klan arrived. They were taken to an isolated spot where Chaney, a black man, was mutilated and all three were shot dead. A local minister was part of the Klan group that attacked them.
The bodies were not located until weeks later, and the outrage over their killings helped bring about the passage of the 1964 Civil Rights Act. Commenting on the crimes not long after, Martin Luther King, Jr. urged people to ask not who was responsible, but what was responsible for the deaths. What was the mix of hatred, of discrimination, of bigotry and intolerance, of fear, ratified in how counties were run, in how politics was done, in how laws were written and selectively applied? It was that mix that drove men to see their acts as legitimate, as necessary for their survival and continued supremacy. King’s was a system-level appeal avant-la-lettre, a quest to go up and out in seeking an understanding of why such evil could happen, rather than a down-and-in hunt for a few bad Klan apples.
In the search for the three young men (two of them white), at least seven bodies of blacks turned up. Many of them had been missing for months, without much action or even attention from authorities. Missing, murdered blacks were the norm. Similar norms or fixed ideas prevailed. An earlier trial had hung because one tormented Mississippi jury member could not stomach declaring the minister guilty.
It took decades to convict Ray Killen, one of the Klan members involved. Opposing his three consecutive 20-year sentences, Killen argued in 2005 that no jury of his peers at the time would have found him guilty. He was probably right. The operation of the institution of justice might not have led to justice. In fact, it took extrajudicial action to achieve justice. A mafia member (of the Colombo crime family) was allegedly recruited by the FBI to help find the bodies. He threatened a Klansman by putting a gun in his mouth, forcing him to reveal the location. Illegal, but quite just, according to many.
Organizations concerned with building a just culture do not normally struggle with forces as deep, pervasive, and dark as those that killed Chaney, Schwerner, and Goodman. They will not be asked to make sense of the behaviors of Klansmen, nor take a position on whether it invites sanction or not. Yet the question that King raised—ask not who is responsible, but what is responsible—rings as relevant for us now as it did then. The aim of safety work is not to judge people for not doing things safely, but to try to understand why it made sense for people to do what they did—against the background of their engineered and psychological work environment. If it made sense to them, it will for others too. Merely judging them for doing something undesirable is going to pass over that much broader lesson, over the thing that your organization needs to do to learn and improve.
Offloading a failure onto a few individuals is not usually going to get you very far. The conclusion drawn from most incidents and accidents in aviation is that everybody and everything contributes in a small way. These small events and contributions can combine to create unfortunate and unintended outcomes. People do not come to work to do a bad job. Like King, people concerned with safety must try to understand not who is responsible for an error, but what is responsible. What set of circumstances, events, and equipment put people in a position where an error became more likely, and its discovery and recovery are less likely? The aim is to try to explain why well-intended people can act mistakenly, without necessarily bad intentions, and without purposefully disregarding their duties or safety.
WHAT IS THE RIGHT THING TO DO?
The dead girl was wrapped in a shower curtain.
When the police found the package in the trunk of her stepfather’s car, they noticed the little girl had a rag stuffed down her throat, secured in place with a bandage around her head. It turned out that the rag had been put there by her mother, who, days before, had shoved the girl under a bed and left her. Under that bed, she had died alone. The rag would have kept her from crying—crying from abandonment, fear, hunger. At three years of age, her body weighed 10 kg, or about 20 lb. Her body was now on its final journey, to be dumped in a wood.
How can a society accomplish justice in the aftermath of something like that? What is the right thing to do?
The mother was charged and convicted and got six years in jail. That would be just to many people. To them, it would be the right thing to do. Some might say that the sentence was too short. The mother was also forced into treatment. Not right, some would say, not deserved. Very appropriate, and very smart and just, others would say.
But the prosecution was not satisfied. Not yet. They found another contributing party and produced a charge of manslaughter in the second degree.
The stepfather, you’d think. Aiding, abetting, driving a car with a body in the trunk? That would be him.
Except it wasn’t.
The charge was leveled against the social worker who replaced the original worker tasked with looking after this family. The alleged failure of the replacement social worker was that she did not pick up on signals of the child’s neglect. Here, in short, was the case. The family had been troubled from the very start. When the girl was one year old, the state had taken her out of the mother’s care because of signs of abuse, only to be returned to the family not much later. The paperwork that would have testified as to the family fulfilling the conditions for the child’s return, however, was lost, or never produced. The child protection council was not notified either.
The social worker visited the family three times, and found little to report. After a while, she went on sick leave. It took months before a replacement was found. The replacement worker drew up a plan for the mother. It specified, among other things, what to give to a toddler to eat, when, how often, and other basic things related to child care and hygiene. The mother never really managed. The girl started falling behind in language, and started to look a little blue.
And then, one day, she was dead.
Was charging the replacement social worker with manslaughter the right thing to do? This is an ethical question. It is a question about our values, about what we consider to be right or wrong. That finding an answer might be hard, however, does not mean that the question resists systematic reflection. Ethics, as a branch of philosophy, offers that sort of systematic reflection. When ethical thinking departs from the merely descriptive and becomes prescriptive, it offers systematic ways of considering what people ought to do in a particular situation. The different ethical approaches offer different ways of mapping the same moral terrain. Here are the approaches that are explained a bit more below:
• Virtue ethics
• Duty ethics
• Contract ethics
• Utilitarianism
• Consequence ethics
• Golden rule ethics
These approaches in themselves do not offer easily applicable solutions perhaps, and any brief treatment of what they might offer is likely unfair. But here is some guidance you can start with.
Virtue ethics comes in part from the ideas of Aristotle and also Confucius, and asks what it takes to be a good or virtuous person. You can ask that of yourself as you ponder what to do in the wake of an incident in your organization. You can also ask it of the practitioner who was involved. Virtues are reliable habits that you engrave into your identity. They are considered to be a constant of your character, rather than driven by the different roles you might have. Virtues are typically surrounded by vices on either side. The virtue of courage, for example, has the vice of cowardice on one side and rashness on the other side. In the wake of an incident, you want to be neither: you probably want to be courageous—to disclose if you were involved in an incident, and to be restorative rather than punitive when your job it is to respond to that incident. In this, you want the virtue of being temperate, but not the vices on either side: being insensible or indulgent, respectively. Aristotle was inspired by people who possessed what he called phronesis, the sort of practical wisdom or on-the-spot ability to see what is good or virtuous in any situation and how to achieve it. The way to become virtuous, he proposed, was to be driven to take on that goal, be inspired by people whose traits you would like to have, and then practice them yourself. The right thing to do, according to virtue ethics, is that which is in line with the virtues you wish to have, and you wish others to have. That still leaves it a bit vague in the case described earlier, of course. Which is indeed one of the critiques of virtue ethics. Not only is its guidance rather underspecified; it is hard to know which virtues are inherently “right” or “good.”
Duty ethics is the ethics of principle. Principles are different from rules. Rules are followed because they are externally imposed and policed. Principles are something you can make a part of yourself, particularly in relation to a professional duty. So this kind of ethics studies the nature of that duty, and the obligations and constraints that come with it. To Kant, an important moral philosopher, such obligations were not conditional, not negotiable.
Professions where (potentially risky) decisions about the lives of other people get taken come with a duty of care (which, incidentally, does get reinforced through laws relating to such a duty of care). The relationship of trust between professional and client (patient, family, passenger, child) is often called a fiduciary relationship. The client has comparatively limited knowledge and power to influence what the professional might do or decide. The relationship, and people’s willingness to engage in it, is founded on the trust that the professional knows what she or he is doing, and does the best for the person in her or his care. This is where deontology might suggest that going after the replacement social worker is ethical, is the right thing to do. She did not live up to her duty of care. She violated the fiduciary relationship. She knew what the child and mother needed, or should have known. And she should have ensured that this was leading to a safe situation for the child, not a lethal one.
But, of course, things are not as simple as that. The fiduciary relationship is also founded on the belief that the professional will do everything in the best interest of the client in front of her or him. When meeting with a client—a family, a patient—nothing in the world should be more important than the client seen there and then. The financial bottom line is not more important, nor is the clock, nor the next client waiting to be seen. The duty to do the best for the current client overrules them all.
But that works only in an ideal world. Giving all the time and resources to one family (living up maximally to the duty ethic relative to that client) takes away time and resources from others. This militates against the ability to live up to the duty ethic with those other clients. It creates a classic goal conflict, or ethical conflict even, for social workers (as it does for many physicians). And it could be argued that most families or patients deserve or require more time than is accorded them. This is, in most Western countries, a structural constraint for services such as social work, state family support, child protection, or healthcare. They are always under pressure of limited resources—not enough money, not enough people (remember it took months to find a replacement in the little girl’s case), not enough time. And always more families or patients to be seen, waiting for help, attention.
So part of being a good professional, of living up to the duty ethic, is making sure that all families get the best care you can give them. That, of course, starts to sound like utilitarianism (see later): the best to the most, the greatest good to the greatest number. A good duty ethic under limited resources and goal conflicts, then, means being a good utilitarian. It means juggling time and resources in a way that gets the most to the most families. But of course this militates against a more pure reading of duty ethic—that nothing is more important than the family seen there and then. There is no hope that such an ethical conflict can ever be resolved. It is felt by most social workers, and most healthcare workers, every day, all over the world. Organizations that employ or deploy such professionals often do little to encourage serious reflection over moral conflict, nor do they help their people manage it. The conflict simply gets pushed down into the workday, to be sorted out at the sharp end, on the go, as a supervisor draws up the schedules, as a social worker hurries from one family to the next.
This complicates any judgment about whether somebody lived up to professional duty. If we want to come to a fair judgment of whether pursuing the replacement social worker is the right thing to do, then there is a lot more we need to look at. Just considering the dead girl and connecting that, in hindsight, to the (now so obvious) signals of neglect that the social worker should (now so obviously) have picked up and acted on, is not going to be enough. What was the case load for this worker? What were the handover procedures when getting cases from the previous worker? How did signals of neglect come in over time, and how did they compare to the perceived criticality of the signals coming from other families in the care of this worker? Who made the schedules and what rationale were they based on? And we could go on. How was social work funded and staffed and organized in this state? Whether prosecuting the social worker is the right thing to do would depend on a careful collage of answers to all of those questions, and probably more.
A colleague recently received a phone call from a hospital vice president. A child had died a few days before from a 10-fold chemotherapy overdose in their pediatric oncology unit. He led the investigation of this tragedy and found a number of issues in processes, admixture formulation practices, and problematic new pharmacy technology that aligned to bring about the death of this child. The family was devastated. Everyone involved in the care of the child was devastated. Suddenly and lethally, doing what they usually did to create and administer chemotherapy admixtures had not worked as intended. The introduction of the new pharmacy device was deemed a substantial factor—it had replaced familiar technology “on the fly” and this was one of the first uses.
The vice president said that he did not believe any of the personnel involved should be punished. Yet, despite his organization’s publicly announced plan to develop a just culture, the chief executive, chief medical officer, and human resources director insisted on firing the two pharmacists involved in the formulation of the admixture and the nurse who had administered the medication. There was absolutely no way the nurse could have known that the content of the IV bag was not as labeled. The impetus for dismissal actually came from their consulting ethicist, who also happened to be a lawyer. He identified the child’s death as evidence of a breach of “duty ethic” and hence a breach of legal duty—he deemed these three people unequivocally negligent.
Going back to the original example that opened this chapter, contract ethics considers the contractual arrangement under which the social worker was hired and under which she worked with and for families. In the aftermath of the child’s death, the answer to the question, “What is the right thing to do”? would be driven by what is in those contracts (though contracts do not always have to be written down). The problem for contract ethics is ensuring that both sides live up to the agreement. Contract ethics proposes that we may need an arbiter, a sovereign, who can help settle disputes and rule in cases where contracts have been breached. For this to work, however, people need to give over, or alienate their rights to that arbiter or sovereign. In other words, they have to hand their rights in, without any expectation of getting them back. That takes a lot of trust. The social worker, for example, as a member of the society in which this case played out, had little choice but to submit to the final judgment, as did Mara the nurse, or the captain of the November Oscar 747. Alienating your rights under a contract (legal, societal, or an employment contract) requires quite a bit of trust: trust that you will be treated fairly, and that your rights will not be trampled in favor of other members of society. And if we think this is difficult in a democracy (where people get to choose their head of state), how does this work in a corporation that does not have to be, and hardly ever is, democratic? This is where, if you are making decisions inside of such an organization or institution, you want to be guided by other ethical thinking than just contract ethics.
According to utilitarianism, the ethical or right thing to do is that which produces the greatest good for the greatest number. Getting rid of an unsafe person (removing a social worker who does not pick up signals of neglect) could then qualify as ethical. The benefit to families, to children, to co-workers, and the organization is greater than any cost. In fact, the cost is borne mostly or exclusively by the individual who is removed and charged. All the possible benefits go to a lot of people, the cost goes to one. It could be argued that an even greater good goes to an even greater number here—the society surrounding this family and their state caretakers. They receive the good that those complicit in the death of the little girl get punished. Getting rid of a bad apple, a deficient worker, harms virtually no one and benefits many people. In fact, any harm is inflicted only on the person or party who might deserve it anyway. So utilitarianism could perhaps argue that this would be the right thing to do. The critique, of course, is that utility and justice do not overlap, as they indeed don’t in this case. The option that gives the highest utility (the greatest good for the greatest number) is also one that imposes a grave injustice on the social worker. Indeed, one wonders whether punishing the social worker actually creates the greatest good possible. We can evaluate that when we consider the consequences of such punishment a bit more.
Consequence ethics is a school of ethical thinking that also includes utilitarianism. What are the consequences of charging the replacement social worker with manslaughter? Of course, there are all kinds of consequences. Not in the least for the social worker herself. Chapter 4 considers the consequences for the “second victim” in more detail. But what matters here are the consequences for the profession, and for the people in its care: children like the one who died. One predictable consequence is this: prosecution of the social worker is likely to tell her colleagues that they should look harder and intervene more aggressively—or else.
And so they did. The very next year, the number of children taken out of their families’ care in this state doubled. Only very weak signals, or mere hints of trouble, would be necessary for a social worker to decide to intervene. The cost of missing signals is simply too large. But that sort of response has consequences too: the cost gets displaced. It gets moved around the system and part of it may well end up on the heads of the most vulnerable ones. Because where do those children go? While in the care of the state, many would go to foster families or other temporary solutions. In many countries appropriate foster families are difficult to find, even with normal case loads. Doubling the number of children from one year to the next can lead to a lowering of standards for admitting foster families. This can have consequences for the safety and security of the children in question.
And there are more consequences. Doubling the number of cases from one year to the next will lead to a doubling or at least an increase of the paperwork and in the supervisory and organizational attention devoted to them. It is unlikely that resources will quickly be made available to have the organization grow accordingly. So other work probably gets left undone. And there is a multiplier effect here. When noticing that a colleague suffers such consequences for having been involved in a failure, professionals typically start being more cautious with what they document. The paper trails of their actions get larger, more preemptive, more cautious. It is one of the defensive measures that professionals often take. And, as research has shown, paying a great deal of attention to the possibility of being held accountable like this detracts attention and cognitive resources from the actual task.27 In other words, social workers may be looking harder at paperwork and protocol and procedure than at children.
With all those consequences, is charging the replacement social worker the right thing to do? Consequentialism would suggest not. The things that get changed when a failure is met with an “unjust” response (the prosecution of an individual caregiver in the preceding example) are not typically the things that make the organization safer. They do not typically lead to improvements in primary processes. They can lead to “improvement” of all the stuff that swirls around those primary processes: bureaucracy, involvement of the organization’s legal department, bookkeeping, micro-management. Paradoxically, many such measures can make the work of those at the sharp end, those whose main concern is the primary process, more difficult, lower in quality, more cumbersome, and perhaps even less safe.
When you are still stumped for what is the right thing to do, think about the golden rule. What that boils down to is this: don’t do anything to other people that you would not like to be done to you. Or, put in reverse: the right thing to do is what you would want done unto you. Perhaps that can be your ultimate touchstone. It is also known as common sense ethics. The advantages of this kind of ethical thinking are that it is easy to understand and apply. It also motivates people to do the right thing, because it is a desire they already have (as it applies to them).
Most cultures and ethical or religious traditions have evolved their own version of golden rule ethics, and the principle has been around already for a very long time. Here are some of the versions.
• Plato: May I do to others as I would that they should do to me.
• Confucius: What I do not wish others to do to me, I also do not wish to do to others.
• Hinduism: This is the sum of duty: do not do to others what would cause pain if done to you.
• Judaism: What you want other people to do to you, do so to them.
• Christianity: Do to others as you would have them do unto you.
• Islam: You are a believer if you love for the other what you love for yourself.
Of course, the assumption in golden rule ethics is that what is good for you is also good for the other person. That may not always be true: people may have different values or expectations. But for generic notions of doing good and preventing harm, it may still work very well.
NOT BAD PRACTICE, BUT BAD RELATIONSHIPS
Unjust responses to incidents are less likely the result of bad judgment calls by those who handle the aftermath of an incident and more likely the result of bad relationships between those involved in that aftermath. You can see this in almost any situation where you want to talk of just culture.
Managing relationships between patients and doctors, if not restoring them, is one major aim of mediation, a form of alternative dispute resolution (ADR) in medicine. Mediation restores communication between the two parties, often (if not always) with the help of a mediator. What is said is kept confidential by law, thus making mediation a safe place for showing remorse, for introspection and the exploration of corrective actions without it being seen as admitting liability. In what is called interest-based mediation, in contrast to litigation or criminal-legal action, mediation allows apology, expressions of regret, compassion to occur much more naturally. Mediation is also much more flexible in allowing different outcomes. Compensation does not have to be money (indeed, it most often is not in ADR). In addition to agreeing to care for the injured party in whatever way necessary (medical or otherwise), mediation can inspire changes to procedures, augmenting of education, or other changes that respond to a patient’s desire to never see this happen again.60
Here is another example of the importance of relationships. Whether employees will see management responses to failure as just depends not so much on the response (or on the bad performance that triggers it). Rather, it depends to a great extent on the existing relationship between management and employees.
We did extensive field work among firefighters to see how they learn from failures that occur during their emergency responses. If firefighters felt that they could come forward with their errors, then it was largely due to the relationship with their supervisors and their managers. It had very little, if anything, to do with formally established procedures or protocol for handling incidents. In one station, firefighters worked in close concert with their management, which had created an atmosphere where reporting errors and suggesting changes was normal, expected, and without jeopardy for any of the parties. Conversely, at a larger urban fire station with distrustful industrial relations, there was less bottom-up participation in decisions involving work context, less firefighter involvement in learning, and much greater suspicion that any reported errors would not be treated fairly.
If bad relationships are behind unjust responses to failure, then good relationships should be seen as a major step toward a just culture. Good relationships are about openness and honesty, but also about responsibility for each other and accountability to each other. Good relationships are about communication, about being clear about expectations and duties, and about learning from each other. Perhaps this can come as somewhat of a relief. “Justice” and “culture” are two huge concepts. They are both essentially contested categories: what either means will forever be open to debate and controversy. They are basically intractable, unmanageable. A relationship, on the other hand, is perhaps more manageable. At least half of it is in your hands. So if you want to do something about just culture, that is where to start.
THERE IS NEVER ONE “TRUE” STORY
Recall from the preface how “justice,” “accountability,” and “trust” are essentially contested categories—about which even reasonable people might still disagree after lots of conversation. So we have to acknowledge the existence of multiple ways of thinking about those terms. Because our point of view is not necessarily right, just like nobody else’s is. In this final case study, the argument is made that we need to do this for the very notion of “truth” as well. What is the “true” account of a failure, of an incident? Is there even such a thing? Previous case studies in this book, like the one about nurse Mara, or even the captain of November Oscar, seem to suggest there wouldn’t be. And if there is no one or true account, then relative to which account are we holding people accountable?
Perhaps we should give up trying to dig out the “true” account of a failure altogether. As soon as you make such a claim, somebody will come around and point to “untrue” elements in your story. Or missing parts. Or misconstrued parts, or mischaracterized ones, or underemphasized parts. Trying to tell a story from the perspective “from nowhere” is impossible. As soon as anybody starts describing what happened and what went right or wrong in that story, that person is already using his or her own language, thereby inevitably importing his or her own values, interests, background, culture, traditions, judgments. The courts may have laid a claim on an objective account of a professional’s actions. But from the professional’s perspective (and that of almost all their colleagues) that account was incomplete, unfair, biased, partial. Remember, in trying to build a just culture, what matters is not getting to a true or objective account of what happened. That is not where the criterion for success lies.
Consider the following story, from the first book of what today is the Hebrew bible (Genesis 19). In this story, a man called Lot is visited by two messengers. They tell him that the city in which he lives, Sodom, is going to be destroyed. “Run, run for your life! Don’t look back, don’t stop anywhere on the plain. Run to the mountains, lest you be swept away…!” Lot grabs his two daughters and his wife and makes a beeline for the countryside. His two sons-in-law and other family members all dawdle and do not make it out in time.
Then disaster strikes. Fire and brimstone rains down on the city of Sodom and on Gomorrah. The cities are overturned and all their inhabitants are burnt, even the vegetation. Lot’s wife looks back, and instantly becomes a pillar of salt.
Lot and his two daughters keep moving. They go up to the mountains outside the town of Zoar, because they fear staying in Zoar. So instead they camp in a cave, Lot and his two daughters.
There, the older daughter says to the younger, “Our father is old and there is no man in the land to come into us in the way of all the world. Let us get our father drunk with wine and sleep with him, that we may quicken with our father’s seed.”
So they get their father drunk with wine that night and the elder comes and lies with her father. He doesn’t know of her lying down or her getting up. The next day the older tells the younger, “Last night I slept with my father. Let us get our father drunk with wine tonight too. You will come and lie with him so you may quicken with our father’s seed.”
So they get their father drunk with wine that night, too, and the younger got up and lay with him. He doesn’t know of her lying down or her getting up. The two daughters of Lot become pregnant from their father. The elder bears a son, whom she calls Moav. He is the ancestor of the Moabites to this day. The younger also bears a son and calls him Ben Ammi. He is the father of the Ammonites of this day.
Suppose the author of this piece of Genesis had told us the story in another way. Suppose the story had told us how Lot, desperate and lonely in the cave, locked up with two helpless and freshly widowed putative virgins. How he forced himself onto his daughters several nights in a row. We may have ended up with acts that were so bad, so morally reprehensible as to amount to “real” crimes. We would have had statutory rape. We would have had incest.
You could even argue that such a story could have been more believable. I mean, how plausible is the story as told in Genesis? Here’s an old man, who would have been more than a bit preoccupied with recent bad experiences—losing his wife, his house, his town. Enough to keep an old man awake and a bit distracted. But he seems to sleep just fine. In fact, he sleeps so deeply, as though he’s lost to the world. Supposedly made so drunk that he doesn’t remember anything of the night. Yet his daughters are capable of tricking him into sexual performances to the point of impregnating them? Twice in a row? While he is essentially unconscious?
But we don’t read that Lot raped his daughters. We don’t read that Lot committed incest. Instead we read of a plot hatched by the elder daughter, a plot that, we might believe, has a morally justifiable goal: preservation of family lineage after a calamitous interruption that took the men folk out of the ranks and left the remaining women with few prospects (though one might think the town of Zoar wasn’t too far). This was perhaps not so strange in a society where family name and tribal affiliation were central to asset ownership and even survival, and where childlessness was a stigmatizing burden.
Whether a crime was committed, then, depends on how the story is told. Even more, it depends on who gets to tell the story. Sutherland’s work on white-collar crime, 60 years ago, pointed out that white-collar “crimes” often go under more innocent names such as “fraud.” This is possible because they typically violate financial or economic or scientific norms, and inflict no direct bodily harm. There is a difference in punishment too, with fraud generally carrying much lighter sentences than the acts the same society decides to call “crimes.” The question here too is, Who gets to say what is what? Sutherland suggested that the difference in naming as well as the difference in sanction afterwards are a consequence of the differential power in society of the populations who commit the different kinds of crime.
This might go for Lot too. Lot was a man. At the time, men generally had more power, more say. And indeed, you may assume that Lot’s story was told by a man, not a woman, certainly not one who was young, deeply traumatized, and recently widowed (because then we would likely have heard quite a different story). So what we need to ask is this: If we get somebody to tell the story, and his or her story gets to be the canonical account of the event, whose voice or voices are we not hearing? Who gets sidelined, marginalized, repressed, ignored? Whose view, whose experience is not represented?
A patient died in an Argentine hospital after the use of an experimental US drug, administered to him and a number of fellow patients. The event was part of a clinical trial of a yet unapproved medicine eventually destined for the North American market. To many, the case was only the latest emblem of a disparity where Western nations use poorer, less scrupulous, relatively lightly regulated medical testing grounds in the Second and Third World. But the drug manufacturer was quick to stress that “the case was an aberration” and emphasized how the “supervisory and quality assurance systems all worked effectively.” The system, in other words, was safe—it simply needed to be cleansed of its bad apples. The hospital fired the doctors involved and prosecutors were sent after them with murder charges. Calling something murder, in this case, was a choice too. A choice of those with vested interests to protect. A choice of those who had the power to impose their version of events on other people, the version favorable to them and their goals.
Again, whose voices are we not hearing? What other possible perspectives or stories about these deaths are being brushed under the carpet? What are we not learning by labeling these cases as “murder”?
If you go to the Louvre in Paris, you may find a painting called La Méduse, or The Raft of the Medusa, by Theodore Géricault. It’s hard to miss, because it’s big. Its size, some five by seven meters, is almost overwhelming, sucking you into the ugly real-life scene that depicts a serious accident. An accident report—in a painting. Here is what it shows. Perched on a raft, piled one on top of another and on the remnants of some supplies, are 15 people, some sitting, some sprawling, scattered about the beams. Some are denuded, some in tattered clothing. The raft is adrift on a rough sea, a foamy and angry deep green; waves are rolling in, rolling over the raft. And far, far away, on the horizon there may be a glimpse of something—a rescue ship maybe? One of the survivors has clambered on top of the rubble and on other people and, his arm outstretched, is waving a rag, frantically it seems. The painting shows the man from behind, as if we too are to be hopeful and desperate at the same time, peeking across the raft toward a possible rescue. Who are these people, so emaciated, so close to death? You look at this scene, at the desperation, the destruction, and you can’t help but wonder: How did this happen? And you probably ask: Who is to blame, whose fault was this?
The raft is a remnant of the French Navy frigate La Méduse. On June 17, 1816, La Méduse sailed in a small convoy from Rochefort, headed for St. Louis in Senegal, which the French were going to formally take over from the British. It was carrying 400 people, of whom more than 200 were passengers, including the newly appointed French governor Schmaltz of Senegal. Schmaltz wanted to reach Senegal as quickly as possible. You wonder about his motives, but the man may simply have been eager to claim his new dominion and prevent the British from having second thoughts. Taking the direct route to Senegal would mean skirting the coast of Africa closely, a coast where, in various places, land and sea endlessly merge into one another, with many sandbars and reefs. La Méduse was the fastest ship of the convoy and she quickly lost sight of the trailing vessels that were opting for routes farther out to sea.
Commanded by Captain de Chaumareys, and aided by an impromptu navigator (a philosopher named Richefort, who was a member of the Philantropic Society of Cape Verde, an organization dedicated to exploring the African interior), La Méduse sailed toward ever shallower water, heralded by white breakers and mud in the water. A lieutenant took it on himself to take soundings off the bow, and, measuring only 18 fathoms (about 30 meters), he warned his captain. Realizing the danger, de Chaumareys ordered his ship turned into the wind, but it was too late. La Méduse ran aground on the Bank of Arguin, 50 kilometers off the coast of Mauritania. The accident happened during spring high tide, leaving few possibilities to float the ship again as each subsequent high tide would be lower than the previous one. De Chaumareys also refused to dump its 14 cannons overboard (each weighing three tons).
Plans were made to take everybody to shore with the ship’s launches, which would have taken two trips, stretched over a number of days. An alternative idea quickly took shape. It was to build a raft on which the ship’s cargo would be offloaded so that La Méduse could be floated again. The raft was constructed from masts and crossbeams, measuring 20 meters in length and 7 meters in width and nicknamed La Machine by the crew.
But on July 5, a gale developed that threatened to breaking up La Méduse. De Chaumareys decided to immediately evacuate the frigate, with 146 men and one woman boarding the woefully inadequate raft, which was to be towed ashore by the lifeboats of La Méduse. The raft had few supplies and no method of navigation or steering. Much of its deck was under water. Seventeen men decided to stay on La Méduse. The rest boarded the lifeboats. They quickly realized that towing the raft was a hopeless endeavor, and began to fear that they would be overwhelmed by its desperate survivors. The raft was cut loose, leaving the 147 occupants adrift. Those in the lifeboats made it safely to the coast of Africa, with most finding their way overland to Senegal, though some died on the way.
Conditions on the raft quickly became wretched. Among the few provisions were casks of wine instead of water. Different factions developed, with officers and passengers in one, soldiers and sailors in another. Fights broke out. On the first night, 20 men lost their lives either through suicide or murder. Stormy weather kept threatening and people continually scrambled to get to the center of the raft. Many were pushed or washed overboard in the scuffles.
After four days, fewer than half the survivors were still on board. Rations, such as they were, were dwindling rapidly, and some people resorted to cannibalism. On the eight day, the fittest began throwing the weaker and wounded overboard until only 15 remained. On July 17, they sighted one of the ships in the original convoy. It disappeared over the horizon, plunging the survivors into profound gloom. The ship reappeared two hours later, however, and they were finally rescued after 13 days adrift. Five of the survivors died within days.
Henri Savigny, the surviving surgeon of La Méduse, submitted his account to the French authorities only a few months after the shipwreck. It was leaked to an anti-Bourbon newspaper, Le Journal des Débats. Together with Alexander Corréard, a geographer, he then wrote a book about the case. It became a hit, going through five editions within the next years, and was translated into English, German, Dutch, and Italian. With every edition, the message of the book became more political. A scandal became unavoidable, one heavily drenched in French politics. In 1815, Napoleon had been defeated at Waterloo and exiled, allowing the restoration of the Bourbon monarchy that had been terminated by the French Revolution of 1792. Its restoration brought the imperative to reward loyalists and populate key positions with confidantes. Viscount Hugues Duroy de Chaumareys was one of them and, after requesting a naval post from the king’s brother, he was given the command of La Méduse. At 53, he had hardly been on a ship in the preceding 25 years, and had never commanded one, instead working as a customs officer.
In 1817, de Chaumareys was court-martialed. He was found not guilty of abandoning his ship, nor of failing to refloat his ship, nor of abandoning the raft. He was, however, convicted because of incompetent and complacent navigation and of abandoning La Méduse before all passengers had been taken off. The verdict could have led to the death penalty, but he was given three years in prison—a whitewash according to some. A year later, Governor Schmaltz of Senegal was forced to resign. The Gouvion de Saint-Cyrl law later ensured that appointments and promotions in the French military were more merit-based than before.
Inspired by stories of the shipwreck and the subsequent scandal, Theodore Géricault, a 25-year-old artist, decided to create his own depiction of it. His painting shows the moment that was recounted to him by one of the survivors: just as the rescue ship was disappearing over the horizon. Whatever had not yet been told in Le Journal, the Savigny-Corréard book, or any of the other stories swirling around the shipwreck, was now on full display in picture-perfect form: a monumental disaster with a bad aftermath, a painting that in itself formed an indictment against a corrupt, insider monarchist establishment. Géricault’s painting tells one story. It is for sure a valid one: the desperation and anxiety on the part of the few survivors must have been all too real for them. But again we need to ask: Whose version of the events is not seen here?
Suppose Géricault had created a painting in which brave officers and passengers are valiantly trying to tow the raft, but in which the raft’s occupants are looming over them, depicted as numerous and livid, as sinister and menacing, threatening to overwhelm the launches and lynch or scuttle anybody still on them. Such a painting could tell the story from the point of view of the occupants of the launches. It may well have inspired sympathy with them and their plight, and perhaps even supported public understanding for their decision to cut the raft loose.
Similarly, a painting that would have given prominence to the gathering storm that prompted De Chaumereys to order the abandonment of La Méduse could have helped explain that decision and made it look less culpable. The culpability arises in part because of hindsight: De Chaumereys later went back to the shipwreck to try to recover the gold that was believed to be still on board (as well as a few survivors who had decided to stay behind). To his probable surprise, La Méduse was still intact, despite the storm. In hindsight, the decision to abandon ship was unwise, perilous, premature.
A painting that shows the actual moment of that decision, with a really bad storm about to barrel down on the stuck ship, could have helped set it in context and make De Chaumereys look much better. Details about his life, in which his monarchist affiliation had made it impossible for him to attain a naval post and in which not having sailed in 25 years was not a condition of his own making, could gain greater notability there too. It wasn’t that he was uniquely unqualified for the job; rather, he had been denied the possibility to exercise it for a while because of contemporary political configurations.
Again, whether a crime was committed depends on how the story is told, and on who gets to tell the story. De Chaumerays may have gotten a tough treatment in Géricault’s depiction of the aftermath of his decisions. Those in power, or legitimated by society, to decide whether his behavior amounted to punishable crimes, however, came to a different conclusion. In their story of the events, he was found not guilty of the most incriminating counts, and punished mildly for the remaining lesser accusations. De Chaumerays’ royalist dedication would probably have not hurt here in a country once again under the reign of a Bourbon. Was a crime committed, and if so, which acts constitute enough badness to amount to a crime? Well—who gets to say? Who gets to tell the story?
THE “REAL” STORY OF WHAT HAPPENED?
Géricault certainly tried to tell the “real” story of what happened. His portrait of La Méduse was an important installment in the development of the Realist school of art, a school concerned with depicting accurately and objectively the scene or event. Realism departed from Romanticism in deliberately rejecting subjects that were made to look more beautiful, wistful almost, than they could ever be in real life (like the king regally sitting on his horse in full ornamentation). Realism also dealt with subjects deemed inappropriate to nineteenth-century sensibilities (the nudity in Géricault’s painting would have added to its shock value). Realism took off in the nineteenth century in France, with, for example, Gustave Courbet. It tried to capture the “real,” the sincere, the ugly, unsentimental, and unidealized version of contemporary life.
The aim may be sincere, and a welcome departure from the deliberately dressed-up, beautified, embellished versions of a subject of painting or writing. But with the commitment to show how things “really” were comes epistemological arrogance. Who is to say that this is “really” how it was? How do you know? And if one depiction is supposed to be the real one, are we to conclude that all other depictions are false? One person shows the truth; all others are liars?
Realist paintings such as Géricault’s succeed only in capturing one moment, from one angle. An angle on a scene reveals something, for sure, but it hides even more. Each perspective discloses and obscures at the same time. Somebody paints an accident scene at one moment, from one perspective, and all other perspectives and moments are lost. You don’t know about them, you don’t hear them, you don’t see them.
Early twentieth-century schools of art such as cubism, in a reaction to this, tried to capture multiple perspectives simultaneously. They used geometric shapes, collage, or interlocking planes, Picasso and Cézanne being the obvious exponents. Cubism rejected the notion that we can represent reality only from one single viewpoint at a time. It challenged the assertion by Realists that they could “accurately” and “objectively” depict an event or a scene. Such supposed accuracy and objectivity again implies epistemological hubris, as if some people have privileged access to the “real” account, the objectively “true” one, and that they are therefore entitled to impose that on other people too.
RHETORIC: THE ART OF PERSUASION
La Méduse is a persuasive painting. The images in it seem to say: Look, here is what happened; here is the unvarnished, ugly truth. It is rhetoric, something we normally associate with words, but in this case it is rendered in brushstrokes. In the West, we have all learned that factual evidence, expressed plainly and clearly (as was indeed the ambition of the Realist school, and is in much of our scientific and judicial traditions) is the most convincing form of knowledge. Much more so than pretty arguments, or nice stories, or emotional appeals, or psychological trickery. Facts speak for themselves; just look at La Méduse. See what happened? See how bad this is, how morally reprehensible? How criminal?
This view assumes that a phenomenon such as a crime is real, that an act that is factually criminal is inherently criminal. From this view, crime is more than simply telling or painting the story one way and not another. Crime represents an identifiable form of behavior caused by an identifiable set of mechanisms and factors (there may be violence, the uncontrolled release of energy, other people getting hurt as a result). Crime is not the contingency of who gets to tell about what happened. Crime has unavoidable material features that cannot be defined away. In other words, the act has the immutable identity of a crime. It doesn’t matter who commits it, or where or when, or under what duress, and it certainly doesn’t matter who gets to tell the story about the act. A crime is a crime, no matter how you describe it, or who gets to describe it. And, while at it, a criminal is a criminal. He or she doesn’t get made into one by the descriptions of other people around him or her.
From this position, Lot was a serial rapist. From this position, De Chaumereys was an incompetent, unqualified moron. He was that before the trip of La Méduse, during the trip, after the trip. He weaseled his way into the job, consistent with who he was. And during the trip, he predictably engaged in something that was criminally negligent, also consistent with who he was. Turning him into a criminal is not the result of a label that other people put on him. It is something he himself did, or even was. Similarly, from this perspective, the pilots in Chapter 4 were unprofessional, and really did engage in willful violations. The pharmacist really did commit something criminal when he didn’t double-check the lethal solution prepared by his lab tech.
But the compelling question, raised by Lot and the Argentine doctors and La Méduse is still: Who gets to tell the story? And how and when does its content and tone amount to a story of a punishable crime? Remember, Géricault might have chosen to paint another angle, another moment of the whole event, and the supposedly criminally negligent aspects of De Chaumereys or his actions may have dissipated. And who got to describe the act so that it became a crime (Géricault; the drug company doing its trials in Argentina)? Or, for that matter, who got to describe the act so that it didn’t amount to a crime (Lot)? The focus from this position is not on who committed the so-called crime, but on who called it so.
Central to the creation of such stories is the lack of status or power on the part of those who are set to lose; those who do not have a voice are on the losing end of the construction. Lot’s daughters lacked status and power, and did not have a voice (or were denied one in Genesis), so their father did not commit a crime. The drug company had status and power, so the doctors administering its trials in Argentina, who didn’t have much of a voice in this debacle, committed a crime. De Chaumereys (or his backers) still had enough power and status and voice: his “crime” was judged very lightly. Dead pilots lack power or status and have no voice, so it is easy to convert their acts into bad, sanctionable behavior posthumously. Mara still had a voice, but by the time it was heard in court, it was rendered feeble and partisan. It came from a prepared transcript, squeezed into the tightly scripted and formal proceedings of a court case, where the words it uttered became easily seen as an evasive, self-serving, and exculpatory maneuver.
This means that justice and power are closely overlapping categories. We cannot consider one without the other.