News

To Discipline or Not?

April 30 2019

The recent decision of the Solicitors’ Regulatory Authority to strike off Emily Scott, a junior solicitor, for being involved in misconduct while a trainee, only belatedly raising her concerns as a whistleblower after she left, raises, albeit tangentially, the difficult question of when – or if – it is ever right to discipline an employee for misconduct if they are also a whistleblower about that misconduct.

In this case, Ms Scott felt unable to report clients being defrauded by her firm while she was a trainee.  She was involved in perpetrating the frauds on the instructions of the partners, the Disciplinary Tribunal finding her conduct to have been “deliberate, calculated and repeated”.  It was only after she had left, some two years after the conduct in question, that she reported the fraud to the SRA who then took action against the partners of her firm and, controversially, her.  The Tribunal reached its decision on Ms Scott despite accepting that she had been young, a trainee and had been “deceived, pressured, bullied and manipulated” by the partners into both carrying out the fraud and covering it up.  The fact that she did not use the confidential route open to her by reporting the matter to the SRA was a factor, as was the fact that part of the conduct involved misleading the regulator when it sought answers.  

Ms Scott feels that she has been punished for – eventually – doing the right thing, with the Tribunal refusing to accept her mitigation, even while expressing sympathy for her.  It is easy to feel sorry for her: in her first job, anxious to impress, worried about her prospects if she refused or left and feeling bullied.  In such circumstances, it is not hard to see how someone can justify to themselves what they are doing and convince themselves that they are still an honest person despite doing dishonest things.  

Still, the SRA took the view that a solicitor, even a trainee one, is rightly held to a very high standard and there can be no excuse for dishonesty.  Our system of justice depends on its practitioners being utterly trustworthy.  

Will such a decision nonetheless lead to unintended consequences?  Misconduct is often perpetrated by the most junior employees being made to do something wrong by superiors who seek to keep their hands clean.  So it will often be those most involved who have the best knowledge of misconduct which should be reported and stopped.  If their own careers will be lost – as Ms Scott’s has been – will this encourage those with the relevant knowledge to speak up?  The SRA is, understandably, reviewing its rules in light of this case in order to ensure that it gets that balance right.  

Ms Scott was not retaliated against by her employers for being a whistleblower.  She was disciplined by a regulatory authority, which has different and wider concerns.  Nonetheless, all employers will likely come across whistleblowers who have themselves been involved in bad behaviour and who may seek to protect themselves from the consequences of such bad behaviour by blowing the whistle, sometimes at a late stage when an investigation has already started – or is about to.  Ensuring that a whistleblower is not retaliated for speaking up but is not also given a free pass against being disciplined for misconduct requires the most careful of judgments.

But the moral – however harsh it may seem – is that, ultimately, a professional – or someone aspiring to be one – is responsible for their own actions, that they need to do the right thing even if this prejudices their personal position and that acting dishonestly but saying to yourself “I’m not a dishonest person” may be comforting but is still a dangerous self-deception.  It is our actions that make us what we are.

Similar considerations arose in the case of Dr Bawa-Garba, a paediatrician convicted of manslaughter over the death of a young child from sepsis, suspended from practice, then struck off and recently reinstated.  There are, however, some obvious differences between the two cases:-

  1. The doctor was open about – and admitted – her mistakes immediately and was convicted in court.  The initial medical disciplinary panel felt, however, that it was not just her mistakes which led to the child’s death and that these wider failures were a reason why her additional punishment should be suspension, during which she could do the necessary training to learn from those mistakes and improve her professional competence.
  2. It was the General Medical Council which sought to strike her off on the basis that her standards as a doctor were so far below those to be expected that she should not be allowed to practise.
  3. The concern within the medical community at this decision was that this would lead to the wrong consequences, both for doctors and patients.  Criminalising individual mistakes would be more likely to lead to cover ups and a failure to learn from problems.  It would have a chilling effect on health professionals’ willingness to be candid about errors and thereby learn what to do better next time.  There was also significant concern that the wider failings which had been identified – lack of staff, poor supervision, inadequate resources, poor note-keeping by others – were being ignored in favour of placing the blame, unfairly, all on one individual.  
  4. Most obviously, the consequences of the wrongful behaviour were much more serious in the doctor’s case than in Ms Scott’s.  Yet it is Ms Scott who has lost her career and the doctor who will continue to practice.

Unfair?  Superficially maybe.  Is gross incompetence in a doctor less bad than dishonesty in a lawyer? Whatever the doctor’s failings, she was not dishonest; indeed, her very openness about her failings made it easier for her to be convicted and disciplined.  A lack of knowledge or competence is something which is capable of being remedied.  

Whereas integrity and honesty and the courage to say no when asked to do the wrong thing go to the heart of what it means to be a lawyer.  If they are missing or capable of being so easily subverted, what else is there?  

And while the work culture in which a person operates matters, often significantly, and frequently needs improving, it should never be an excuse for behaving without integrity.

 

Photo by Vladislav Babienko on Unsplash

Quis custodiet ipsos custodes?

October 16 2018

Some 5 years after the Parliamentary Commission’s withering report on banking culture, it is the House of Commons itself – its MPs, senior management and staff – who face their own brutal and shocking appraisal.  The disgraceful and, in some cases, criminal conduct by some of them and their collective failure to deal, legally or adequately or at all, with bullying and harassment of junior staff, particularly women, by senior staff and MPs is laid bare in this report by retired judge, Dame Laura Cox.

It would perhaps not have been politic of those bankers – quizzed by the Parliamentary Commission about their failure to raise concerns about the misbehaviour of fellow traders and bankers – to have pointed out to their inquisitors that the number of MPs who blew the whistle on fellow MPs who broke the expenses rules and, in some cases, committed fraud was the grand total of zero.  (It would though have been hugely enjoyable for fans of sanctimonious humbug.) Those in the financial sector who had to take the MPs’ justified criticisms can perhaps now enjoy a touch of schadenfreude when they read Cox describe the omertà that many MPs practice in respect of bad conduct by one of their number” and that “Members turn a blind eye to dishonourable behaviour by others”. 

But the report goes further.   Despite the 1995 Nolan Committee report  on Standards in Public Life making it clear that MPs had to display the highest standards and that “it is essential for public confidence that they they should be seen to do so”, it seems – and who could possibly have foreseen this? – that self-regulation doesn’t work.   The Cox report describes an entrenched culture “cascading from the top down, of deference, subservience, acquiescence and silence, in which bullying and sexual harassment have been able to thrive and have long been tolerated and concealed.”  Processes and policies, no matter what fluffy names they are given (Cox is particularly critical of the “Valuing Others” policy) are described as not fit for purpose and not even compliant with existing laws on harassment and discrimination, let alone best practice.  Investigations are inadequate and carried out by amateurs.  Confidentiality is not respected, staff are fearful and unsupported and retaliation – or threats of it – are common.

The report makes for grim reading.  Even grimmer in the two days since its publication has been the defensive reaction of MPs and senior staff at the Commons at the very idea of having to take action beyond the token.  The House of Commons may consider itself a special case though, as Cox acidly points out, while “Members of Parliament are elected representatives…their mandate does not entitle them to bully or harass those who are employed….to support and assist them.”

But this report has much from which every employer, from senior managers down, and not just HR Departments, can learn.  In an era of #MeToo, of younger generations being unwilling (rightly) to put up with boorish (at best) and criminal (at worst) behaviour in the workplace, when an unhappy employee can create unwelcome publicity and force companies to take action, all organisations can learn from the failures so forensically dissected in this report.   It is not just Parliament which is a stressful workplace.  All workplaces are likely to face these problems to a greater or lesser extent and it is no easy task trying to handle matters which can range from someone being insensitive and impolite, via bullying, leering, insulting remarks all the way to actions which may amount to serious crimes.

Three points in particular are worth highlighting:

  • “devotion to process and language rather than to real effectiveness” is a waste of time.  Procedures and rules are necessary but never sufficient.  They are merely proof of the importance with which the issue is viewed.  But the real test of whether you have the right policies in place is whether your employees trust you to investigate properly and act on findings, no matter who is involved.  Without that trust even the best written procedures are mere will 0′ the wisps.
  • Those at the top have to lead by example.  In yesterday’s radio interview  Dame Laura posited three questions which those at the top should ask themselves when having to manage cultural change:
    • “Do I understand that radical change is needed?”
    • “Can I deliver that change?
    • “Will staff have confidence that I can deliver that change?”  Answering that third question honestly requires a level of self-knowledge and courage that is not as common as it should be.
  • Codes of Conduct are a fancy way of reminding people that good manners, politeness and civility matter.  At their heart, good manners are about being kind to others (and kindness is a much underrated virtue).   Employees, managers, colleagues, the temporary and contracting staff who do the myriad tasks which keep a workplace going, however senior or junior, are human beings, not simply resources.  Politeness and thoughtfulness to those around us cost nothing, can help mitigate even the most stressful of jobs and are the bare minimum which should be expected of – and for – all staff.

And, finally, not for the first – and certainly not for the last – time, if a problem happens, don’t ignore it.  “This cycle of repeatedly reacting to crises only after they have developed into crises, and sometimes only after unwelcome publicity, is a perilous approach to adopt for any organisation, but it is completely hopeless for a place of work.”

As for the House of Commons, if it really is serious about changing its culture, it needs to realise – as others have – that this is the work of years, not weeks or months, and is a task which is never finished.

 

Photo by Gabriel Matula on Unsplash

What Whistleblowers Really Want

June 21 2018

”The real scandal is not that no-one knows.  It’s that everyone knows.”

Not said, as you might imagine, about the events at Gosport War Memorial Hospital but about the childrens heart unit at the Bristol Royal Infirmary 30 years ago.  And yet, as applicable today as then, despite all the lessons learned (or not) over the years.

There are many aspects of this which will be wearily familiar to those involved in previous NHS scandals (Morecambe Bay, Stafford) and those in other sectors:-

– warnings or concerns raised by junior staff were ignored or hidden away

– senior staff and colleagues were aware but turned a blind eye

– complainants, both internal and external, were treated as troublemakers

– a tendency to close ranks against those raising concerns

– missed opportunities: all too many moments when something could have been said, should have been said but was left unsaid

– retaliation (or threats of it) against staff.  They were warned that if people continued to speak out, it could undermine the good work being done.  Some staff highlighting concerns faced “a certain amount of ostracisation

– a culture of deference: both to senior staff and to the institution

– viewing the protection of the institution’s perceived reputation as more important than dealing with its failings.

Sound familiar?  The fact that an institution consistently admired by the public could develop a culture quite as bad and – in its effects on people – worse than in less admired sectors (such as banking or the press) shows how widespread these problems are.  Unsurprising really.  Most people are not heroes and find it easier to take their cues from those around them.

But the most shocking (and, so far, least commented on) aspect of this story is that even 12 different sorts of investigations over 27 years failed to uncover the full facts or lead to effective action.  How can this be?  Well, different bodies with different agendas, powers, without access to all the information and sometimes lacking the relevant skillset do not result in the ideal investigative set up.  But in truth, institutions – like most people – do not really want to know about their failings.

So it is all too easy – and sometimes unfair – to criticise individuals for not speaking up (see here a nurse describe her shame at not having done more) and to think that training them to have the courage to do so is all that’s needed.  Necessary as this may be, it places too great a burden on them.   And lets others off the hook.

Too often the focus is on those who knew but did nothing and on the lessons to be learned but not on the critical bit in the middle – the integrity and thoroughness of the investigation.  Without it no-one will come forward and “lessons learned” will be seen as lessons which are never learned by those who need to do so.

“Freedom to speak” guardians (the NHS’s most recent attempt to create a better culture) are a nice idea.  But what, really, can they do?  What those who raise concerns want is not just the freedom to speak but the knowledge that action will be taken once they have spoken.

What they need above all are trustworthy, fearless, independent and tenacious investigators who will really listen to them and investigate properly.  And an institution humble enough from the top down to realise – and really mean it this time – that it is only by understanding its failings and mistakes and learning from them that it can improve for the benefit of those it is there to serve.

Only then can individuals have the confidence to know that speaking up is not just the right – but the professional – thing to do.  And that it will not be in vain.

Photo by Luis Melendez on Unsplash