Global move against criminalization and victimization of pilots, post accident/incident.

Criminalization/Victimization of Pilots

Question

I have a question to ask which has been lingering in my head for a long time. When an aircraft meets with an accident/incident, is it only the flight crew at the controls responsible for the situation they ended up in and further face criminal and administrative proceedings?

Why do the investigating agencies/ regulators arbitrarily suspend license of the crew even before the final investigation has been completed to determine the root causes?

In the words of Prof. Patrick Hudson of the Delft University and a pioneer in safety culture, ” the pilot is the first person to reach the site of the accident”. That is a true statement and I would like to add that the other contributors to the accident/incident follow suit.

Every pilot who meets with an accident/incident has been certified competent/proficient by the training and checking methodology used by the operator and approved by the regulator. Therefore there are a number of individuals and entities involved in the process of conducting a flight.

Recent events and symptomatic knee jerk reaction

The spate of runway excursions and other incidents in India with Spicejet and Air India Express pilots at the controls saw the regulator suspending the flying license of quite a few pilots, as reported in the media. The final investigation is not yet complete and blame has been apportioned and punitive action taken.Is it justified to do so without determining the route causes and the contributory causes. The knee jerk action to suspended the pilots license is addressing the symptom and not the root causes, therefore they continue to reoccur.

This policy of suspension of license goes against the State Safety policy to foster and assist stakeholders in developing comprehensive Safety Management Systems (SMS) and develop preventive safety strategies for
the aviation system in an environment of a “just culture”.

Central to the establishment of a safety culture, and with particular regard to reporting systems, is the underlying requirement for a ‘Just Culture’. A Just Culture has been described as ‘an atmosphere of trust in which people are encouraged (even rewarded) for providing essential safety-related information, but in which they are also clear about where the line must be drawn between acceptable and unacceptable behaviour’. Marx identified four behaviours as giving potential for unsafe acts to arise:

  • Human error
  • Negligent conduct
  • Reckless conduct
  • Intentional ‘wilful’ violations

Under the assumptions of Reason’s model once more, within the majority of circumstances, it is the sequence of events that will ultimately give rise to an accident as opposed that of an isolated event alone. It is therefore imperative that the boundary as to what constitutes ‘acceptable’ and ‘unacceptable’ behaviour be drawn. Accordingly, it is equally imperative that both individuals and organisations should understand the role to be played if this culture is to develop and succeed. It is therefore generally accepted that to discipline the perpetrators responsible for the vast majority of unintentional unsafe acts would not be beneficial; instead such acts would require alternative methods, such as retraining, to eradicate their occurrence. Wilful acts or those of gross negligence however must not be tolerated and may not expect impunity from prosecution. 

Root causes analysis

Ishikawa fishbone root cause analysis

As you can appreciate from the above diagram, it is not easy to apportion blame or liability on one person or the flight deck crew alone.

ICAO assembly resolution 35-17 against misuse of safety data

The protection of safety information from inappropriate use is essential, since the use of safety information for other than safety-related purposes may inhibit the future availability of such information, with an adverse effect on safety.

Read here the full text.

In March 2006, Council approved, as part of Amendment 11 to Annex 13, the legal guidance for the protection of information from safety data collection and processing systems, which was incorporated into Annex 13 as Attachment E.

Read here: Flight safety foundation joint resolution regarding decriminalization

Two Swiss ATC controllers convicted

Punitive/Non-punitive or administrative action against erring flight deck crew

 ICAO Annex 13: OBJECTIVE OF THE INVESTIGATION

3.1 The sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability.

 Causes. Actions, omissions, events, conditions, or a combination thereof, which led to the accident or incident. The identification of causes does not imply the assignment of fault or the determination of administrative, civil or criminal liability.

Contributing factors. Actions, omissions, events, conditions, or a combination thereof, which, if eliminated, avoided or absent, would have reduced the probability of the accident or incident occurring, or mitigated the severity of the consequences of the accident or incident. The identification of contributing factors does not imply the assignment of fault or the determination of administrative, civil or criminal liability.

Any investigation conducted in accordance with the provisions of this Annex 13 shall be separate from any judicial or administrative proceedings to apportion blame or liability.

Note.— Separation can be achieved by the investigation being conducted by State accident investigation authority experts, and any judicial or administrative proceedings being conducted by other appropriate experts.

Procedure

Preliminary report by the Inquiry Officer should be finalized within two weeks of the incident/serious incident or as stipulated in the appointment order and in the format of ICAO Annex 13 . It shall contain the requisite information including any safety hazard, either in human factor, Aircraft factor and/or any other relevant factor that is prima facie evident during the early stages of investigation such as lack of piloting proficiency if any or any unwarranted disregard of safety requirements, in case these are obvious to enable framing and implementation of immediate corrective safety measures.

The Final investigation report should be finalized in the format as stipulated in ICAO Annex 13. The body of the final report should comprise the Factual Information; Analysis; Conclusions & Safety Recommendations. The causes should include both the immediate and the deeper systemic causes. The recommendations should be for the purpose of accident prevention and any resultant corrective action.

Punitive action

If punitive action is required for the lapses in accordance with Sub-rule (14) of Rule I937, the concerned person shall be issued with a show cause notice in the form of a memorandum.

The following information shall be reflected in the memorandum:
a) Background of the occurrence in which the erring person is found blameworthy detected during spot check, surveillance or routine inspection/investigation of accident/incident and may relate to inadequate/improper maintenance action, improper certification or any
action resulting in accidents, incidents including ground incidents, delays/cancellation attributable to the concerned person’s actions.
b) Brief reason for blaming the erring person and the details of rules, regulations or procedures which have been violated.( ICAO Annex 13 clearly states that the objective is not to blame anyone.)
c) Applicable rule of the Aircraft Rules, 1937 (Rule 19 of Aircraft Rules as the case may be, in light of which the memorandum is issued).
d) Time period to offer comments to the memorandum by the erring personnel and also action of concerned DGCA directorate in case the erring person fails to offer his comments.

mindFly analysis

The investigation tells us why an accident/incident took place in addition to what happened, which in most cases would be most obvious. The intention is not to blame anyone or apportion blame but to prevent similar occurrences from taking place again. Therefore a thorough investigation is necessary which analyses all the contributory causes and their role in the occurrence. The above paragraph of punitive action states that a brief reason for blaming the erring person shall be given. This is against where safety culture starts, which does not blame a person.

It is only after a detailed investigation that we can find out if the there was a deliberate violation and how it pans out with the tenet of just culture. Suspension of license amounts to blaming the crew without giving them the details of the case and a chance to defend themselves. Punishment without determining the root causes has never acted as a deterrent. Humans are affected by physiological and sociological factors. They play a huge role in the way they behave.

Read my article on ‘Cognitive lockout” which has been printed in the UK Flight Safety Magazine. It throws more light on the cognitive part of why flight crew continues carry out an un-stabilised approach thereby risking a runway excursion. It is imperative that we understand the cause of occurrences from a human behavioural point of view. A technical investigation will not look into the human factor angle due to which the errors will keep repeating themselves.

 

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