Academic journal article International Journal of Criminal Justice Sciences

Prosecuting Professional Mistake: Secondary Victimization and a Research Agenda for Criminology

Academic journal article International Journal of Criminal Justice Sciences

Prosecuting Professional Mistake: Secondary Victimization and a Research Agenda for Criminology

Article excerpt


Why are we so hard on ourselves as a professional over drug errors? In spite of a no-blame policy there is still a lot of guilt and blame attached to mistakes. I have worked in a hospice for ten years in a difficult and demanding job. During the past year my mother has been very ill with cancer and I have struggled to work as her health has deteriorated. As a result of this I have made three errors. After the last error I was suspended from duty and charged with gross misconduct. This heavy-handed action was taken in spite of the fact that the patient was not harmed, required no remedial action, and there was no attempt to cover up the mistake. During my suspension I was told not to contact any of the nurses with whom I worked, so those who could have been most supportive to me did not know what had happened. I felt like a criminal, and I was so disgusted with the way I was treated that I resigned (Moran, 2008).

Responses to professional mistake (e.g. drug misadministration, pilot error, or other mistakes that are made in the normal execution of professional duties) increasingly include the prosecution of individuals under local criminal statutes (Pandit, 2009; Ter Kulle, 2004; G. Thomas, 2007). Criminal prosecution has in fact become an automatic response to accidental death (or even just risk of death) in many countries (ICAO, 2007). These responses are often seen by those in the profession as unfair, unnecessary, intrusive and "heavy handed" (Moran, 2008) as well as detrimental for safety initiatives aimed at increasing honest disclosure and the free flow of safety information (FSF, 2006; GAIN, 2004; ICAO, 2007). The criminalization of professional mistake may represent a jurisprudential evolution similar to that of "hate crime" in the United States and other countries, for example, which went from a broad, amorphous social concept to a determinate legal construct inside of a few decades through judicial rhetoric and successive jurisprudential meaning-making (Jacobs & Henry, 1996; Phillips & Grattet, 2000).

For professional mistake, markers along this legal evolution can be found; for example Italy has a specific criminal category of causing "air disaster," and recently under this statute two airline pilots were sentenced to 10 years in jail after a crash that killed 19 people off the coast of Sicily (RTE, 2009), This matter is similar even in Sweden, where recently the introduction of the category "patient safety crime" was discussed (Akerberg, 2008). Such initiatives aim at the juridical concretization of a social construct that has itself proven enormously elusive: professional mistake, or "human error" which is more an attribution after-the-fact than a concrete category of uniquely deficient psychological performance (Woods, Dekker, Cook, Johannesen, & Sarter, 2010).

Concern about the prosecution of professional mistake

Most fields of safety-critical practice express concern about the prosecution of professional mistake, for example aviation (Michaels, 2008), shipping (Wallis, 2010), construction (ENR, 1997), chemical processing (Prakash, 1985), and healthcare (Grunsven, 1996; ISMP, 2007; Pandit, 2009; Skegg, 1998; Ukens, 2002). In aviation, prosecution in the wake of incidents and accidents has occurred in the Netherlands (Ruitenberg, 2002), England (S. Wilkinson, 1994), Spain (Brothers & Maynard, 2008), Italy, Greece, Cyprus, the United States and Taiwan, to name a few countries. A crash of a Scandinavian passenger aircraft that killed 118 people at Milan's Linate airport in 2001 led to the conviction of four air traffic control employees for multiple manslaughter (Learmount & Modola, 2004), and there is an ongoing trial for manslaughter of five managers of Helios Airways in both Greece and Cyprus in response to a fatal 2005 accident (Mail, 2009). France also has pilots in jail (Esler, 2009). By no means, however, is criminal prosecution of professional mistake limited to a particular area in the world or domain of practice. …

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