Just Culture: The Problem with Retributive Justice

 

 

Building a just culture organisation is dependent on many factors. You can not just will your organisation to be fair and just. Building a just culture is built through painstakingly living your mission and values day in and day out. By tying your actions and interactions directly to the values that you expect from everyone. It takes time to build trust, trust comes from the belief that you will adhere to your values, and understanding that expectations of staff are that your reactions when things do not go as planned are consistent in applying those values.

Also, in short, doing what you say you will do, when it is difficult to do so.

If I were to point to just one single thing that could help focus an organisation on building a just culture and a culture of safety it would be TRUST. Building trust amongst all levels of your organisation, for one another is extremely difficult. It takes great effort and time to build absolute trust and it only takes small missteps to erode that trust for a long time.

Why does trust = Safety and Just Culture? Simply, a just culture means that people can accept accountability for their actions without fear of retribution. It means they can trust that you will hold them to the organizational values and not allow external pressures to impose a “scape goat” in difficult times. It means they have a belief that leaders will also act with values and accountability and be responsible for their roles in issues and failures.

The term “Retributive Just Culture” may be used to describe an organisational culture that lives by their values and has an element of justice, but ultimately they still look at the traditional manner of applying retribution commensurate with the severity of the choices. This is still very problematic in that determining the level of severity and the “line” that has been crossed is subjective and dependent on those with power to make decisions. This introduces many things like individual stakes, bias and external pressures.

Retributive just culture focuses on: Which rule has been broken? Who did it? How bad was the infraction, and what does the person deserve? Which Manager, Department or authority gets to decide?

The focus of just culture is on errors. This is also not to say that you wouldn’t manage behavioural issues. Behavioural issues significantly disrupt a workplace and put strain on the organizational culture. In my experience though, when the culture of justice and trust has been built, the behaviour issues are often brought forward from the front line staff and dealing with the issues in a fair and just manner further instills trust in the leadership.

Let me share a short story about a recent situation.

Within an Emergency Services Department we found some significant deficiencies with past practice regarding standards, education, documentation and accountability with regards to medical education and oversight. The goal was set forth to implement a new approach to the system that encompassed all of these attributes in the program delivery.

As in all occasions of implementing change, communicating the goals and paths to achieve the goals with all levels of staff is very important. Especially providing opportunities for input and feedback to direct the path to the end goal.

Where things became challenging, there were several factors that affected the front line staff’s trust in the leadership and these areas of change. We encountered some external unrest and misinformation being delivered to undermine the goals and messaging, as well as some historical cultural issues from prior experiences. Understanding that the root of the difficulties resulted from a lack of trust is paramount in addressing the real concerns being expressed.

A big factor included a historically punitive culture where the medical oversight was often used to deal with employment and behavioural human resources issues to seek termination of employees.

The real issue was a lack of trust that leadership was implementing change for reasons other than the intended purpose.

We reached a point where misinformation was impeding any potential progress. It was decided that a frank discussion needed to occur and a meeting was called with key union executives on the matter.

Our goal in meeting was to understand these concerns and share how the goal tied to the mission and values of the organisation.

Some initial discussion occurred to break the ice and bring us to a understanding where everyone felt comfortable speaking freely. Here, the major concern was brought forth “If someone doesn’t do what they are supposed to and makes an error, then what penalties will be imposed?”,”Is there a potential if someone is not successful with the education/qualifications what will become of their employment?”

This opened a door to discuss these very principles about collaboration for a just culture. I was able to speak about all levels of the organization having accountability. There is individual accountability to participate, learn, ask question and seek assistance, share information and knowledge, share problems; issues and challenges with leadership, and work together to be successful. The fact of the matter is that we were not looking for ways to seek retribution if a staff member faltered or failed, were are looking to support them, learn and improve with them, seek accountability in assisting them to improve and improving our systems. Leadership has an obligation to create this environment and also have mechanisms to deal with individual performance issues.

This was about patient safety.

We left that meeting with something very important. The front line staff offered their trust on this particular program.

From this point forward, the ball was in my court to keep between the lines. In doing what I said I would do, how we would be approaching training and quality management, from a supportive manner and seeking accountability from all levels, is on me/us to follow through with.

I am very grateful and honoured to be given this trust in leadership to continue to make change and improvement in this area. In know that our staff want to be excellent at all that they do, and I know that it is our opportunity and challenge to create that environment.

The ultimate challenge, should it come, is living up to our values in the event of an adverse event. This becomes the opportunity to erode the trust or build it further. And, the reality is that we can not achieve a state of “Zero” errors. If we are seeking zero errors then our organisation will hide issues until it becomes a major problem. (Another topic for discussion) So, when that time comes our trust will be on trial.

An understanding that a just culture can be “retributive” versus “restorative” is very important. I would urge those considering building a organisation based on just culture strive for the latter.

A common and “traditional” approach to just culture is based on the systems approach. If the system is not to blame then how is the individuals choices responsible for the problem. This was common as the first wave of just culture in airlines, health care and oil industry. While the retribution may not be outcomes based to remove the “outcome bias” in determining retribution, it is based on level of retribution based on the egregiousness of the choices that led to the issues.

The categories of choices are often divided into:

An Honest Mistake, A mishap, slip, unintended or unintentional error or accident.

At Risk Behaviour, a choice that may not have been identified as at risk, or considered justified.

Negligence or Recklessness, a conscious choice to take unnecessary risk or disregard policy.

In adopting this type of “just culture” the organization would believe that different consequences area warranted based on the level of “poor choices”. Honest mistakes call for compassion and investigation into the actions that caused them. At-risk choices calls for coaching and warnings. And reckless or negligent behaviour calls for punitive action including suspension, dismissal or referral to authorities.

Does this truly lead employees to believe that their honest mistakes will be treated fairly and not punished, and therefore are more inclined to report mishaps or failures?

The reality is that often employees, practitioners do what it takes to get the job done. Only to find themselves providing information that in hindsight may help some decision maker decide where the line was between the categories and they have essentially contributed to their own retribution.

This does not exactly instill trust. Does this result in more reporting? More error mitigation and safety?

There actually does not exist any research evidence to support these outcomes with a “retributive just culture” system.

Many questions are left open for subjective interpretation when it comes to determining what is negligence and what is reckless behaviour. Assigning these categories really becomes a matter of who has the power to do so, what are their intentions, what are the external pressures, what are their bias’?

As a core concept of Just Culture, we are seeking to decriminalize “Human Error” and restore trust in the people we lead and report to.

Fundamentally, there are some issues with retributive just culture.

There is a lack of clarity, perceived fairness or agreement about who sets the line in the sand of what constitutes the varies levels of culpability. Often those making the decisions have a stake in the outcome and results of the process. Is the leader making these decisions willing to be held accountable for their role in the circumstances, knowledge, training or behaviours that were allowed to happen?

Is there real consideration to the nuances of the operational situation and how it actually occurs in real-time? The fact of the matter exists that hind-sight is 20/20 and given the opportunity to analyze a situation to death in retrospect we will likely come to a different conclusion than those in the moment.

Daniel Khahneman in “Thinking Fast and Slow” as well as Malcolm Gladwell in “Blink” outline the psychological aspects of decision making. Khanneman differentiates between system 1 and system 2 thinking, when we make quick intuitive decisions we have different focus and depth of perception that would be considered in a split moment. Using a secondary system of information and analysis over time can produce very different results. Gladwell goes to the point of stating that in situations of extreme heightened awareness we become technically focused in our decisions similar to someone with autism.

Depending on your organisation there may be no means to “appeal” these decisions. It may depend on having a unionized environment and grievance process. However, how does the information and bias travel through the levels of staff involved in reviewing the evidence and making further decisions?

There really is no scientific evidence that a retributive just culture have higher reporting rates or have more value in what they learn from incidences. Often the higher and more powerful those are in an organization the more “just” they consider the culture to be.

I mentioned aspects of a “Restorative Just Culture”, in another discussion I will delve into the elements of a restorative approach and how it maintains trust while supporting staff and ensuring accountability. A restorative just culture seeks to answer the questions: Who was harmed? What are their needs? Who is obligated to meet those needs?

 

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