People are not the problem & deterrence is not the key — learnings on trust from healthcare for everyone

Photo by Sasun Bughdaryan on Unsplash

(This paper was produced for the Irish HSE (national health service) as part of a project I did with them on trust and the NSE)

For many organisations trust is a vital component of their license to operate. But it is not an exaggeration to say that for healthcare organisations trust is more important than that. It is a matter of life and death. If people trust the healthcare system, particular health services, individual hospitals and GPs, they are more likely to seek help at the right time, report symptoms, follow treatment plans, attend screenings, show up for surgery and follow health advice. More likely to live, less likely to die.

A core strategic question for all healthcare organisations therefore must be to understand why people trust and distrust them, what behaviours matter most and how to demonstrate they are trustworthy. This case study provides valuable lessons for organisations of all types.

The qualities of trustworthiness

It was fascinating, and to be honest confusing at the beginning for me to get to grips with academic ideas on trust from psychology, anthropology, sociology, political science, behavioural science and more. Trust research is notorious as a minefield of conflicting theories and peculiar studies. Intriguingly an unusual consensus emerged across these disciplines on the qualities which are important for trust. These are not just abstract concepts, or academic theories. The 7 qualities important for trust are deeply rooted in our individual and collective psychology and the fundamental ways our societies work and have evolved. These ‘drivers’ of trust are — an intent which is not solely self-serving, competence, respect, fairness, openness, inclusion and integrity. Where trust is absent, the causes can be traced to one or more of these drivers. Where it is present, they are clear to see.

Though there may be different cultural interpretations, they are in some form or another at the heart of national and international justice systems, in many organisational values statements, culture change programmes, good governance frameworks, ‘tech for good’ guidelines, codes of conduct and more. And it is pretty much common sense that if you do the opposite of these you won’t be trusted. They are familiar almost to the point of banality. Perhaps this very familiarity may mean their importance can easily be underestimated and may explain why they are often overlooked?

Causes of distrust

Behaviours which cause distrust are a great starting point in understanding how trust is lost and gained. Arguably, avoiding distrust is an essential step on the journey to earning trust. Research on public trust by a European healthcare organisation identified the greatest cause of public distrust for them are integrity issues. In particular around honesty, being open about problems when they happen, owning up to mistakes, admitting responsibility.

This tallied with my findings across all types of organisation, which showed that trust is lost, not necessarily from a problem occurring, but because of the way the organisation responds. Knee jerk attempts to cover up the issue are particularly damaging, as are contorted, yet often quite obvious attempts to divert attention from the issue or rationalise it as something else.

The failure to openly admit mistakes, learn from them and prevent them from happening again is a fundamental issue for demonstrating trustworthiness and building trust.

The importance of an open or ‘just’ culture in avoiding distrust and earning trust

Reviews of serious healthcare failures in a number of European countries have all identified failings in the culture of organisations as a major underlying cause. To anticipate problems or respond effectively, an open or ‘just’ culture is required — one which welcomes early warnings of issues, encourages people to speak up about concerns and responds without blame and retribution to problems when they happen.

The problem is not confined to healthcare. Reviews of almost every major disaster — including the Chernobyl nuclear disaster, the Financial Crash of 2008, the Deepwater Horizon Oil spill and the shocking Post Office scandal currently going through the courts in the UK, all pinpoint the same major problem - an organisational culture which fails to anticipate problems, and responds when they occur by covering them up, assigning blame and focusing on adversarial processes for retribution. This is the opposite of an open culture and is often called a blame culture.

A blame culture fails to appreciate that early warnings of problems are gold dust. They help organisations anticipate and head off issues before they become disasters, they save money, make organisations more efficient and increase employee confidence, effectiveness and wellbeing.

CEO of biotech start up Synthace, Tim Fell, recognise this from the outset. “One of the most important aspects of our culture is to encourage people to look for and speak up about early warnings of potential problems. We are human, we all make mistakes. Being open and pre-emptive gives us the chance to nip them in the bud.”

This seems obvious. But the newspapers are full of stories of whistleblowers being penalised when they should be celebrated for saving the organisation from disaster. Any organisation in which raising concerns ‘would be a sackable offence’ (in the words of an employee of one tech company), is tying one hand behind its back. Why do organisations of all types fail to take advantage of this massive strategic advantage?

At the heart of the problem is a fundamental and outdated view of the motivations of human nature and what works to prevent future mistakes. The mental model behind blame cultures (and the legal system, regulation and social justice too) starts from the incorrect belief that people are the problem and deterrence is the key.

People are not the problem and deterrence is not the key

Do you think that fear of negative personal consequences is the best way to prevent future wrong doing? I did. But you’d be wrong. A wide body of research shows that deterrence (‘the action of discouraging an action or event through instilling doubt or fear of consequences’) is counter productive in shaping future behaviour, preventing accidents and stopping them recurring.

Healthcare again provides salutary lessons. Deterrence and sanctions are the starting point for its approach to preventing medical accidents. The system focuses on compensating victims through a fault/liability rule and a deliberately designed adversarial process which assigns blame to individuals alone. It was created because at the time it was considered the most appropriate way to stimulate future improved conduct. It actually impedes it. The Medical director of the Swedish Patient Compensation Scheme goes as far as to say that looking for scapegoats through a litigation systems based on fault is ‘a very efficient way of killing more people.”

Organisational governance and law expert Professor Chris Hodges explains: “The core assumption is that instances of failure and mistakes occur solely through individual conduct, and can be prevented by waiting until something goes wrong and then imposing a sanction that will deter future reoccurrence. The reality is that, in practice, individuals make mistakes for all sorts of reasons, many mistakes occur as a result of systemic issues (people working together, or failing to do so, in groups). An approach to affecting future events that waits for an adverse event to occur and then ex post imposes a sanction (financial or otherwise, but based on finding fault and blaming someone) will not adequately address future behaviour or systemic issues”. (From ‘Outcome-Based Cooperation: In Communities, Business, Regulation and Dispute Resolution’.

It is hardly surprising that creating negative consequences for individuals to stop them airing concerns — and penalising them when they do — does not result in the type of open culture necessary to help prevent problems turning into disasters. People fearing personal criticism, official investigations, criminal action, employment disciplinary action, social censure, embarrassment, or simply uncertainty about the consequences, quite naturally keep quiet and hope the problem doesn’t escalate or that no-one finds out. This is confirmed by research with doctors, where ‘fear of litigation, damage to reputation and embarrassment’ were the main barriers to open disclosure about potential problems with care, resulting in a spiral of negative impacts.

Furthermore, the stress inducing and confrontational nature of the whole approach, including the legal system, further contributes to mistakes, because we all make poor decisions when under stress, focused on narrow targets or when feeling threatened — the natural outcome of such an approach.

This way of working is not only ineffective, but worse still, skews compliance in a way which may increase harms. The assumption of ‘incompetent doctors’ being the problem shifts (perhaps deliberately?) the focus away from the flaws in the system or the culture of the organisation and its management style.

A report from the UK Dept Health Healthcare Safety Investigation Branch explains “Safety issues and related incidents are often the result of complex local, organisational and system-wide processes, with similar events recurring repeatedly in different places across the healthcare system. The purpose of safety investigation is to understand the patterns of causality that produce harm, and to make recommendations that can address those causes across the healthcare system in order to improve the safety of all patients. …The vast majority of safety incidents are associated with inadvertent or unintentional errors on the part of caring and committed staff. These errors are typically provoked by poorly designed systems, equipment or work contexts.”

Fear of blame and reprisals has another repercussion in healthcare, it results in ‘defensive medicine’ coined by the 2016 National Maternity Review in the UK. Clinicians are too nervous to be imaginative and innovative in treatments which significantly limits the treatment options available to patients.

It would not be surprising if such cultures stifled innovation in organisations of all types. The perverse effects of litigation are not just a problem for heath services. It is also eroding the effectiveness of regulation in any sector which currently relies on using litigation in the hope that it will act as an effective deterrent and to ensure better future behaviour.

Key features of an open or just culture

Aviation legislation defines a just culture in law as ‘a culture in which front line operators or others are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training, but where gross negligence, wilful violations and destructive acts are not tolerated.’

Hodges stresses that the learning component is particularly important in terms of preventing mistakes and respectful handling of problems when they occur. “The system needs to be capable of collating the true facts, identifying the root causes and making changes in practice and culture as well as demonstrating that those features actually occur” .

Healthcare organisations seeking to embed a just culture and better system for anticipating problems and compensating for mistakes will need to to these things:

• Have a system which is designed to identify what exactly happened and why
• Be open and respectful in sharing information with patients and their families
• Design systems and processes to resolve issues quickly and effectively
• Allocate resources to deliver support and care (including money)
• Provide clear evidence to all that the system has digested the relevant information and improved practice.

How not to do it, as the Harvard Business Review (Feb 8, 2021) wryly observed, is what often happens: ‘The CEO commissions the Human Resources department to produce an effective company culture. HR designs a campaign to tout a mission statement and core values that the CEO and senior management developed. HR also implements some employee perks like free snacks in the break room or monthly birthday celebrations. Maybe they also field an annual employee engagement survey and report results back to the CEO. And then with their culture-building to-do lists completed, the CEO and HR move on to other priorities.”

This, unsurprisingly, doesn’t change anything except to increase the annoyance and powerlessness felt by everyone in the organisation, especially those who wants to improve the system.

Barriers to embedding a just culture

This is not simple for organisations of all types, but particularly those with a rigid rules-based approach in place already. There are a number of systemic, psychological, cultural and contextual reasons which will make it harder — notably:

• The nature of the compensation system
• A prevailing view in society, media, politics, business and the law that ‘blame, shame and sanction’ works best in deterring future bad behaviour
• A belief that individuals not systems are at the heart of the problem.
• Belief that a top down ‘command and control’ management system is the best way to run organisations
• System inertia and resistance to new ways of doing things.
• Our natural inclination to resist change and become defensive in the face of criticism.
• Genuinely conflicting values and incentives. In healthcare in particular it was noted by the 2015 UK House of Commons Public Administration Select Committee that ‘there remains an ‘‘ unresolved tension between the desire for an open ‘ no-blame ’ culture and the demand for the clear accountability the public is entitled to expect from a public service’.

But this will not be sufficient on its own. A new approach to the law as well as to internal culture is clearly needed and one has already been devised.

An alternative response — a No-blame Administrative Compensation scheme supported by an open and just culture

The obvious ineffectiveness and spiralling costs of this current approach to compensating for medical accidents has inspired a number of countries to design a whole new system, called a No-blame Administrative Compensation Scheme. Setting the goals of such a new redress system this starts with what patients say they want.

Contrary to the common perception of the public as voraciously litigious, taking organisations to court is overwhelmingly a last resort for patients, who most often turn to the law out of frustration with getting what they see as an appropriate response.

Based on ‘striking consensus’ from a large number of studies it is clear that organisational culture plays a decisive role in poor responses to patient concerns. A 1994 study of 227 patients and relatives involved in medical negligence litigation found that “the decision to take legal action was determined not only by the original injury, but also by insensitive handling and poor communication after the original incident. Where explanations were given, less than 15% were considered satisfactory.” Perceptions of the ineffectiveness of the system to prevent future accidents also stops early complaints — and so opportunities for prevention or more timely learning. The most common reason for not complaining was the belief, based in reality, that it would not change anything.

People resort to litigation for four main reasons Hodges analysis found:

1. Concern with standards of care and organisational learning. There is a strong and widespread motivation from both patients and relatives to embark on the process to prevent similar accidents occurring to others.
2. Lack of explanations about what happened and why. People had expected more honesty and openness from the organisation and a shared dialogue with healthcare providers about the incident. They also expect to be informed of what changed and how processes were improved in the light of the problem, which rarely happens.
3. Compensation for actual losses. In particular for pain and suffering or to provide care in the future for an injured person.
4. To ensure accountability. A belief that staff or the organisation should have to account for their actions.

Key features of a No-blame Administrative Compensation Scheme

‘No blame’ compensation schemes are not new, they were first advocated in the 1970s and are being used in various countries notably the Nordic countries, Japan, UK, New Zealand, France and Poland. As Hodges explains: “The social goal that remains valid is to provide compensatory or corrective justice — a responsibility to make good harm caused — which has been asserted throughout modern history, recently by contrasting theorists of private law and rights-based analysis, based on basic values of inter-personal morality, fairness and justice. If providing compensation remains a valid objective and justification for those harmed, the issue that remains is how it is best achieved”

Though the no-blame schemes used vary for cultural and legal reasons important features are likely to include:

• Instead of a ‘fault’ trigger, a set of factual criteria is designed focusing on the person harmed and the circumstances of the injury. This is simpler, shorter and cheaper than a ‘who did what to who and when’ process. It also shifts the focus from actions by a potential injurer to the condition of the injured, circumstances of the injury and the contributing factors.
• Though the process is blame-free it is not accountability-free. Accountability comes through sharing information about failures and commitment to and evidence of improvement
• Processes are built around practices traditionally described as confession (encompassing truth-telling and apology), repentance and creating the appropriate conditions for forgiveness.
• Investigations and compensation decisions are made by an independent body
• Openness and transparency are embedded in process and governance
• Accountability also takes into consideration different motivations and intentions for malpractice which require different types of action. (For example, see figure below of the Scottish Environmental Protection Agency Compliance Spectrum)
• Improvement in practice are shared. The patient schemes collate databases on all injuries and their causes, analyse these and feed them back to drive improvements in healthcare practice

They are very effective, both for patients and for healthcare organisations.

How a no-blame scheme benefits the public and patients

• The system provides a more equitable and quicker access to compensation
• Because it draws on relevant medical and legal expertise to understand causation, not a battle to assign blame, the process is more efficient, shorter and cheaper
• The non-adversarial nature of the process is less stressful and intrusive for all individuals involved.
• The approach improves clinical practice and is more effective at prevent the same mistakes happening again.
• Hodges also suggests ‘they promote a particular style of society, that identifies problems and solves them quickly and through cooperative engagement, rather than waiting for the litigation system to be invoked and to operate in a mode of conflict and adversarial legalism.’ That’s the sort of society we all would want to live in.

How a no-blame scheme benefits healthcare providers

• It results in fewer mistakes and harms to patients
• Lowers admin and legal costs (because defined time limits disincentivize prolonged legal wrangles and provided comparatively quick results).
• Economies of scale are possible where schemes handled different injury types
• Linked to an open ‘just’ culture internally this approach is fairer and more empowering for all healthcare staff.

Implications for trust

We started with the 7 drivers of trust — intent which is not wholly self-serving, competence, respect, fairness, openness, inclusion and integrity. These are all present in the aims and design of a No-blame Administrative Compensation Scheme. Most are absent in a Blame Culture and the current system for eliminating and responding to medical accidents in healthcare and beyond.

If organisations of all types are as serious about earning public trust as they often profess, they will see the importance of a more open, just culture. The redesign of organisational and legal systems with the trust drivers in mind would make a dramatic difference both to their effectiveness and to trust.

NB: This article was originally written at short notice at the request of a European Health Service who I am working with on their approach to trustworthiness, trust and organisational culture. It draws on two main sources:

1. My research on trustworthiness and trust for the TIGTech project, supported by the World Economic Forum and funded by Germany’s Fraunhofer-Gesellschaft (Europe’s largest application-oriented research group) - together with my ongoing work on organisational values and culture.
2. The extensive work on organisational governance and the law from Professor Chris Hodges, who generously shared chapters of his forthcoming book ‘Outcome-Based Cooperation: In Communities, Business, Regulation and Dispute Resolution’. (published Autumn 2022)

Prof Hodges is a legal scholar and was awarded an OBE in 2021 for services to business and law for his work over many years with officials, judges, ombuds, businesses, consumers and others on reforms aimed at producing outcomes and systems that are ethical, fair, safe, effective and cooperative. He is also co-author with Ruth Steinholz of Ethical Business Conduct and Regulation — A behavioural and values-based approach to compliance and enforcement and many papers and reports on organisational culture and Regulation.

For further information, please contact Hilary Sutcliffe on hilary@societyinside.com