Saturday, August 11, 2012

The Professional Mandate: Don't repeat Known Mistakes, yours or anyone else's.

My formulation of the Professional mandate:
It's "unprofessional" to repeat or allow, Known Faults, Failures and Errors.
That sounds complete, perhaps obvious, but let me unpack this some more...

What's "unprofessional"?

If you're a cleaner, mower mechanic or dish-washer, i.e. not someone held to the highest Professional standards, then it's probably "skiving off" or doing a dodgy or substandard job. It might get you reprimanded if detected and if its your normal mode of work, in most places it'll get you fired. But only if detected, and that's only going to happen in better run organisations that routinely check work.

If you're someone who holds other people's lives in their hands, especially in a Profession that owes a profound Duty of Care to them, like Aviation and Medicine, then you should be held to a much higher standard.

These are the usual types of "unprofessional" behaviour and generally not considered "criminal":
  • malfeasance: deliberate/wilful wrong doing/actions (in the discharge of public obligations)
  • misfeasance: wrong action (esp in the discharge of public obligations)
  • nonfeasance: didn't do what needed to be done (esp in the discharge of public obligations).
  • negligence: didn't pay enough attention or care to the execution of the task, inexpert or incomplete action.
  • incompetence: can't do the job, use the tools or know the process properly or incorrect action(s).
  • indolence: lazy, idle, a "failure to perform".
But we know there are more types of "unprofessional" behaviour:
  • failing to act in a timely manner, i.e. tardiness,
  • "wrong inaction" when action was necessary,
  • rushing to act without sufficient information, or on an incorrect and unquestioned judgement,
  • acting when "inaction" or waiting was necessary,
  • deliberate harm through acts committed or withheld,
  • systematic harm to cohorts of people through deliberate, "wilful blindness" of not reviewing previous outcomes or not implementing known "Best Practice" or continuing with known "Bad Practices".
  • deliberate and systematic "gouging" - resolving "Conflicts of Interest" in favour of monetary outcomes for the Practitioner, against the interests of clients or the public.
  • over servicing, over charging and deliberate price gouging (selecting high priced alternatives over technically equivalent or superior lower priced ones).
  • ignoring or failing to deliver adequate service to individuals and large cohorts of the public for whom they should be responsible.
  • acting whilst intoxicated or drug-affected.
  • deliberately under-performing, not giving or doing your best in all circumstances, including "phoning it in" or "just going through the motions".
Which leads to two questions:
  • In this, the Internet Age, can a Profession even call itself a "Profession" if it doesn't detect all deliberate or unintended errors of commission or omission and impose Professional Penalties on organisations and managers responsible for allowing preventable harm, injury or death to those for whom they were responsible, as they unequivocally fail the "Professional mandate"?
    • Individuals who've are appropriately trained and with current certification, correctly follow organisational guidelines, checklists and processes and attempt to deliver their best Professional performances, or at least self-report Errors, Faults and Failures or omissions, should be protected from legal liability. Professionals need to be explicitly protected from being made "the fall guy" for Organisational or System Errors or managerial malpractice. Doing your job well, to the best of your ability/competence, should never be cause for censure or penalty.
    • Organisations have a Duty of Care to the General Public, Community and the State to ensure the Professionals under their direction are properly selected, adequately trained, including on-going testing/training cycles, are properly informed of the latest/current Organisation Standards, Processes and Procedures and all Professional Performance properly and adequately checked and corrected and if necessary, individuals reassigned, stood aside or removed.
    • If you are a Private Professional Practitioner, you undertake to competently and adequately provide, and perform to, both the Organisational and Individual Professional Standards, being personally liable at both levels. In most current fields, with Knowledge and Skills/Processes/Tools/Equipment doubling every 3-5 years, not within the Professional working lifetime as it once was, this is now beyond even the most competent and able Professionals.
      • I believe Registration and Certification Boards should be acting to prevent Sole Professional Practitioners from getting in over their heads in this way. 
  • What should now constitute Criminal Action or Criminal Negligence by Professionals and their managers/organisations when they deliberately, or with "wilful blindness" or disregard, continue with, or allow harmful Professional behaviour?
    • In Corporations Law, individuals and boards are deemed liable "if they knew or should have know". Ignorance is not a defence, in fact, failing to be informed is in itself an offence.
      • Is there any reason Professionals directly responsible for Human Life should be held to a lesser standard than Corporate managers and boards?
    • What should constitute Evidence of such Criminal Action or Negligence when it can be clearly demonstrated statistically there were adverse outcomes for multiple clients, though individual attribution of harm, injury, death or wrongful act may not possible.
      • Statistics, and their use in the Analysis and Review of Professional Performance of individuals and groups, are well established and universally accepted, with appropriate "Confidence Intervals", as the highest level of Evidence in Research and Scientific investigations.
      • Why should these same tools and results not be acceptable Civil and Criminal Evidence? What counts as indisputable Scientific Evidence should be acceptable in a modern Court of Law.
      • Judges and members of the public empanelled on juries can, and should, be knowledgable in, or able to be tutored in, these concepts, tools and their interpretation and subtleties.
And a bigger question:
Are "high standard" Professionals liable for Errors and Injuries directly attributable to poor management decisions or yielding to "management pressure" to perform unsafely or continually at unsustainably high levels of 'commitment', either excessive hours, excessive supervisory load or "above my pay-grade work", i.e. substantially above their Professional level of competence?
I argue that Dr Brent James' notion of "Professionals owe a Fiduciary Trust to their clients" (and in return are given the right to Professional Self-Determination) applies. Managers, especially if current or once practicing Professionals, should not, either knowingly or not, put those they direct in these invidious position, in effect putting them in a "Conflict of Interest" situation: chose between your employment or career and the safety of those clients or the public for whom you are responsible.

It's not Good Practice, let alone acceptable Professional behaviour, to ever work a continuous 40-hour shift or 100+ hours/week when you may endanger others' lives.
Personally, I consider knowingly working whilst impaired in any way (alcohol, drugs or fatigue/exhaustion), isn't just Professional malpractice, but Criminal, especially if a repeated, even normal, action.

The Nuremberg Defence, "I was just following orders", is as unacceptable and specious, especially for high-standard Professionals, now as it was 6 decades ago. Professionals are solely responsible for their actions and must be held to account for them, in the same way that Managers can't transfer their Responsibility and Accountability to the Professionals that they direct.

Which creates another addendum to The Professional Mandate:
It's unprofessional to accept, or allow, tasks and responsibilities beyond your, or others, competence level or act whilst notionally or practically impaired, incapacitated or impacted by external factors. If you can't competently and adequately do the job before you, you should not be doing it. If others put you in the position where you feel you cannot decline a job/task/role outside you ability/competence, you are obliged to report both your own action and the situation, before, during or as soon as practicable after the event.
Specifically, I reject the widespread notion or "meme" for mangers deliberately demanding unprofessional conduct:
"You're a Professional, you have to 'do whatever it takes'" -  especially to fulfil roles, responsibilities or deadlines/commitments that you yourself did not commit to, but were imposed externally on you.
Any Professional who makes an explicit, not tacit, undertaking to deliver a Professional outcome should reasonably expect to be held to that Promise. Attempting to flip Accountability and Responsibility from Management to Professionals is a variation of this "Blame Assignment" technique and should result in personal liability for those attempting to assign blame.
The resulting Corollary is:
Professionals don't just have an implicit Right, but a Professional Duty, to refuse directions, including work rostering, that may, or will, result in unsafe Practice or a failure in their Professional Duty to clients or the public.
Or more simply: Professionals reserve the right to say "NO!", and make it stick, to unreasonable or unsafe management direction and be protected against reprisals, harassment or recriminations for such action.

Doing The Right Thing must be rewarded, never penalised.

Elsewhere, I've attempted to layout the context of Professional Behaviour within Professions. It isn't just about not doing the wrong thing, but also doing the right thing.

How a "professional" gets to know "What Works and What Doesn't" is another beyond this, "the Professional Mandate".

A relevant extract:

Barry Boehm neatly summaries the importance of the Historical Perspective as:
Santayana's half-truth: “Those who cannot remember the past are condemned to repeat it”

Don’t remember failures?
  • Likely to repeat them
Don’t remember successes?
  • Not likely to repeat them
The critical insight here is that there are two sides to improvement:
  • What not to do,
  • What to do.
So my rubric must be extended to include something like "and practice What Works (ie. proven)".

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