Why Safety Policy Cannot Be Enforced
Conventional wisdom is that a safety management system (SMS) policy must be enforced for compliance. There are several reasons why an SMS policy cannot be enforced, and the two main reasons are that an SMS enterprise works within a just culture and root cause analysis of special cause variations.
JUST CULTURE
A just culture refers to an organizational environment or approach that promotes fairness, accountability, and learning when dealing with human errors, mistakes, and system failures. The concept originated in the field of aviation but has since been applied to various industries, including healthcare, nuclear power, and others where safety is critical.
In a just culture, there is a balance between holding individuals accountable for their actions and recognizing that errors often result from systemic issues rather than individual negligence. The goal is to create an atmosphere where personnel, including accountable executive (AE) and mangers, feel comfortable reporting errors and near misses without fear of punitive measures, fostering a culture of openness and transparency.
Fair and Just Accountability: Individuals are held accountable for their actions, but the level of accountability is proportional to their control over the situation and the foreseeability of the consequences. A person may be a second victim and feeling responsibility and regret for what occurred and be held accountable by being asked to share their personal feelings and story with coworkers and management.
Learning from Mistakes: The focus is on learning from errors to improve systems and processes rather than blaming individuals. This involves conducting thorough investigations to understand the root causes of incidents.
Open Communication: Encouraging open and honest communication about errors, near misses, and safety concerns without fear of retribution.
Continuous and Continual Improvement: Actively seeking ways to improve and expand systems and processes to be prepared for special cause variations and being proactive for future errors.
SPECIAL CAUSE VARIATION
Special cause variation, also known as assignable cause variation, refers to variations in a process that are not inherent to the process itself but are caused by specific, identifiable factors. These factors are typically external and unusual occurrences that can have a significant impact on the performance of a process, leading to deviations from the expected or standard outcomes.
Identifiability: Special causes can be traced back to specific events, changes, or factors. Unlike common cause variation, which is inherent to the process and represents the natural variability, special causes have a distinct origin.
Intermittent: Special cause variation tends to be sporadic and intermittent. It doesn't occur consistently over time but rather as a result of specific events or conditions.
Impact: Special causes can lead to significant deviations from the expected performance of a process. This impact can be positive or negative, but it is usually more pronounced than the typical fluctuations caused by common causes.
Correctability: Since special causes are typically associated with specific events or factors, they are often correctable. Identifying and addressing the root cause of special cause variation can help improve the overall stability and predictability of a process.
Statistical process control (SPC) is crucial for a successful safety management system (SMS). Understanding and comprehend special cause variation, and distinguishing between special cause and common cause variation is crucial. Control charts are used to monitor and analyze process performance, helping to identify when special cause variation is present so that appropriate corrective actions can be taken. This approach is fundamental to the concept of continuous improvement in various fields, such as manufacturing, healthcare, and business processes.
ENFORCING SMS POLICY
Enforcing an SMS policy refers to the process of ensuring compliance with the policy. This involves the implementation of measures to make sure that the accountable executive (AE), managers, SMS manager and third-party contractors adhere to the prescribed guidelines of the policy. Enforcement mechanisms are established to maintain policy compliance, order, promote safety, and uphold the principles of a just-culture.
MONITORING AND SURVEILLANCE
Enforcement often begins with the monitoring and surveillance of activities to identify any violations and non-compliances.
Surveillance
Surveillance is very different from audits and inspections.
Audits and surveillance are both activities that involve the systematic examination or monitoring of processes, systems, or activities, but they serve different purposes and have distinct characteristics.
Purpose
Audits are conducted to evaluate and verify the adherence to established standards, policies, or procedures. They aim to ensure compliance, identify areas of improvement, and provide assurance that processes are functioning effectively.
Surveillance is generally focused on monitoring ongoing activities to detect deviations from standards, identify potential issues, and ensure that operations are in compliance with established criteria.
Scope
Audits are typically more comprehensive and thorough in scope. They involve a systematic examination of various aspects, including documentation, processes, controls, and outcomes.
Surveillance tends to be more focused and may involve real-time or periodic monitoring of specific activities or areas. It may not cover all aspects comprehensively but rather concentrates on key elements.
Frequency
Audits are often conducted periodically or at scheduled intervals. They may be annual, bi-annual, or occur based on a predetermined audit schedule.
Surveillance can be ongoing and may occur more frequently, depending on the need for continuous monitoring or risk assessment. It can be daily, weekly, or even in real-time.
Nature
Audits are usually planned and conducted with a structured approach. They may involve a detailed examination of records, interviews, and site visits.
Surveillance can be planned or unplanned, and it may involve more informal monitoring. It can be adaptive to changing circumstances and may involve continuous observation.
Reporting
Audits result in formal reports that outline findings, conclusions, and recommendations. These reports are often used for accountability, improvement, and decision-making.
Surveillance activities may lead to immediate action if issues are detected, but they may not always result in formal reports. Reporting may be more ad hoc or focused on addressing specific concerns.
While both audits and surveillance involve monitoring and examination, audits are typically more structured, comprehensive, and periodic, with a focus on compliance and improvement. Surveillance, on the other hand, is often more ongoing, adaptable, and focused on detecting deviations and immediate issues.
There are five key components of surveillance.
Physical Surveillance
This involves the direct, in-person monitoring of individuals or locations. It can be conducted by law enforcement, private investigators, or security personnel.
Electronic Surveillance
This involves the use of technology such as closed-circuit television (CCTV), drones, satellites, and other electronic devices to monitor and record activities.
Communication Surveillance
Monitoring of communication channels, including phone calls, emails, and internet activities, to gather information or identify potential threats.
Data Analysis
The collection and analysis of large amounts of data to identify patterns, trends, or anomalies. This may involve the use of algorithms, artificial intelligence, and machine learning.
Social Media Monitoring
Tracking and analyzing information shared on social media platforms to gain insights into public opinion, detect potential threats, or gather intelligence.
Surveillance can be both overt and covert, and the ethical implications of surveillance practices are often a subject of debate. Overt behaviors are actions which are visible and can be seen directly, such as physical movements and verbal statements. Covert behaviors are hidden actions and processes that occur inside the mind and cannot be directly observed by others.
INVESTIGATION
Once potential SMS policy violations are identified, the enforcement department may conduct investigations to gather evidence and build a personal case against the violator.
Most SMS enterprises do not operate with an enforcement department to enforce their SMS policy. Conditions accepted by most SMS enterprises are that conditions under which punitive disciplinary action would be considered (e.g. illegal activity, negligence, or wilful misconduct) are clearly defined and documented. However, the regulatory requirement is not to define conditions for punitive actions, but to including the conditions under which immunity from disciplinary action will be granted.
Illegal Activity
Illegal activity refers to actions or behaviors that are prohibited by law. These activities are typically outlined and defined in a legal system's statutes, regulations, or ordinances. Engaging in illegal activities can result in various consequences, such as criminal charges, fines, imprisonment, or other legal penalties.
Theft: Unlawfully taking someone else's property with the intent to permanently deprive them of it.
Burglary: Illegally entering a building with the intent to commit a crime, typically theft.
Robbery: Using force or threat to take someone's property directly from them.
Fraud: Deceptive practices to gain something of value, often involving false information or misrepresentation.
Embezzlement: Misappropriating funds entrusted to someone for personal use.
Money Laundering: Concealing the origins of illegally obtained money, typically by means of transfers involving foreign banks or legitimate businesses.
Extortion: Obtaining something, such as money or property, through coercion or threats.
Assault: Intentionally causing apprehension of harmful or offensive contact.
Battery: Intentionally causing harmful or offensive physical contact with another person.
Kidnapping: Unlawfully taking and holding someone against their will.
Arson: Intentionally setting fire to property.
Drug Trafficking: Illegally manufacturing, distributing, or selling controlled substances.
Cybercrime: Criminal activities conducted through the use of computers or the internet, such as hacking, identity theft, and online fraud.
Terrorism: The use of violence or intimidation to create fear for political or ideological purposes.
Forgery: Creating or altering documents with the intent to deceive.
Counterfeiting: Producing fake or unauthorized copies of goods or currency.
Racketeering: Engaging in an organized and illegal scheme, often for financial gain.
Hate Crimes: Crimes committed against individuals or groups based on their race, religion, ethnicity, or other protected characteristics.
Blackmail: Demanding something of value under the threat of revealing damaging or embarrassing information.
Stalking: Repeatedly following or harassing someone, causing them fear or distress.
Public Order Offenses: Crimes that disrupt public peace and order, such as rioting or disorderly conduct.
It is also important to note that laws can vary between jurisdictions, and what may be illegal in one place may not be illegal in another. Additionally, laws also change over time, so staying informed about local regulations at any airport, and anywhere airlines operate globally is crucial. A few years back a flight crew was detained for compliance with their own SMS policy, which was not accepted in their local jurisdiction of operation.
Negligence
Negligence is a legal concept that refers to a failure to exercise the level of care that a reasonably prudent person would have exercised in similar circumstances. In other words, it involves the failure to act with the degree of care that a reasonable person would have exercised under the same circumstances, leading to harm or damage to another party.
SMS enterprises with an SMS policy to consider punitive actions for negligence must define these actions and associated punitive actions. Below is a list of 21 negligence behaviors for an SMS enterprise to include in their SMS policy.
Duty: The defendant owed a duty of care to the plaintiff.
Standard of Care: The defendant breached the standard of care owed to the plaintiff.
Foreseeability: The harm caused was foreseeable.
Causation: The defendant's breach of duty was a direct cause of the plaintiff's injury.
Actual Cause: The defendant's actions were the actual cause of the harm.
Proximate Cause: The harm was a foreseeable consequence of the defendant's actions.
Injury: The plaintiff suffered an actual injury or harm.
Breach of Duty: The defendant failed to meet the standard of care expected.
Expertise: If applicable, the defendant had a duty to use their professional expertise.
Reasonable Person Standard: The defendant's actions are compared to what a reasonable person would do.
Control: The defendant had control over the situation that led to the injury.
Special Relationships: Certain relationships (e.g., airline captains - passengers) may impose a higher duty of care.
Special Knowledge: The defendant had knowledge that the plaintiff did not possess.
Res Ipsa Loquitur: The thing speaks for itself; the injury wouldn't have occurred without negligence.
Warning: The defendant failed to provide adequate warnings or information.
Recklessness: The defendant's actions demonstrated a reckless disregard for the plaintiff's safety.
Informed Consent: Failure to obtain proper consent for certain activities, especially in medical contexts.
Public Policy: A person’s actions violated the SMS policy, which is a public policy supporting safety regulations.
Violation of Statute: The defendant violated a statute or law.
Continuing Duty: The defendant had a continuing duty to protect their customers from harm.
Emergency Situations: The standard of care may be adjusted in emergency situations, but negligence still requires reasonable actions.
It's important to note that the specific elements and terminology may vary by jurisdiction, and legal advice should be sought for specific cases.
Negligence is a common basis for personal injury lawsuits, where individuals seek compensation for injuries or losses caused by the negligent actions of others. It is an important legal concept in tort law, which governs civil wrongs and provides a framework for individuals to seek remedies for harms caused by the negligence of others.
An SMS enterprise with negligence as an exemption to their non-punitive SMS policy must accept accountability for how they reach their decision.
Wilful Misconduct
Wilful misconduct refers to intentional or deliberate actions that are performed with knowledge of the potential harm they may cause. The specific points or elements of wilful misconduct can vary depending on the context, such as legal, ethical, or professional standards.
SMS enterprises with an SMS policy to consider punitive actions for wilful misconduct must define these actions and associated punitive actions. Below is a list of 21 wilful misconduct behaviors for an SMS enterprise to include in their SMS policy.
Intent: The individual or party must have the intention to engage in the misconduct.
Knowledge: Awareness of the consequences or harm that may result from the actions.
Deliberate Action: Purposeful and calculated actions rather than accidental or inadvertent behavior.
Recklessness: Acting with a conscious disregard for the potential negative outcomes.
Malice: Acting with the intent to cause harm or injury to others.
Defiance of Rules or Policies: Violating established rules, regulations, or policies knowingly.
Negligence: Failing to exercise reasonable care and intentionally disregarding safety measures.
Fraudulent Conduct: Engaging in deceptive or fraudulent activities with the intent to deceive others.
Disregard for Consequences: Ignoring or dismissing the foreseeable consequences of one's actions.
Conscious Violation of Standards: Violating established ethical, legal, or professional standards knowingly.
Purposeful Harm: Actions taken with the explicit purpose of causing harm or damage.
Intentional Misrepresentation: Providing false information with the intent to deceive.
Wilful Neglect: Failing to perform duties intentionally or purposefully neglecting responsibilities.
Bad Faith: Acting with dishonest or malicious intent, often in breach of a contractual obligation.
Moral Turpitude: Engaging in conduct that is considered morally reprehensible.
Conscious Disregard for Others: Ignoring the well-being and rights of others knowingly.
Preconceived Plan: Executing a premeditated plan to commit misconduct.
Indifference to Legal Consequences: Acting without regard for the potential legal consequences of one's actions.
Repetition: Engaging in the misconduct repeatedly or persistently.
Wilful Violation of Duty: Knowingly violating a duty or obligation owed to others.
Purposeful Destruction: Intentionally causing damage to property, reputation, or other interests.
It's important to note that the specific elements of wilful misconduct may vary based on the legal or ethical framework in question. Refer to the relevant laws, regulations, or standards applicable to the specific context.
SMS enterprises with an SMS policy to consider punitive actions for wilful misconduct must accept these conditions and associated punitive actions. Below is a list of 21 negligence behaviors for an SMS enterprise to include in their SMS policy.
PENALTIES AND SANCTIONS
Enforcement measures may include the imposition of penalties, fines, or other sanctions designed by the SMS enterprise to deter non-compliance and punish those who violate the established rules.
Injunctions: In certain cases, an SMS enterprise with a documented SMS enforcement policy, may seek court orders or injunctions to stop ongoing violations or prevent future ones.
Cooperation and Collaboration: Enforcement efforts often require collaboration between different agencies, organizations, or jurisdictions to effectively address complex issues.
Deterrence: The ultimate goal of enforcement is to deter future violations by creating a perception that non-compliance will lead to consequences.
Enforcement mechanisms can vary significantly depending on the nature of the rules or laws being enforced and the entities involved. It plays a crucial role in maintaining order, protecting public interests, and ensuring a fair and just society.
One crucial question to be answered by SMS enterprises if they voluntarily accept to travel down the path to enforce their SMS policy is if they accept to operate in an environment where processes, procedures and acceptable work practices are criminalized activities.
An SMS policy cannot be enforced in a dynamic environment, since there is a practical compliance gap at the moment there are airside movements.
Enforcing the SMS policy does not conform to the regulatory requirement to operate with a process for setting goals for the improvement of aviation safety and for measuring the attainment of those goals.
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