BCL senior associate Tom McNeill’s article ‘Cognitive Bias and Defending Health and Safety Investigations’ has been published by Tomorrow’s Health and Safety.
Here’s an extract from the article:
“Much is now understood about cognitive bias and the implications for decision-making. Unfortunately, that understanding is rarely applied in the criminal justice process. The Health and Safety Executive (‘HSE’) is more advanced than some investigating authorities in that it recognises and even provides some limited guidance on the issue. Their guidance ‘Investigating accidents and incidents’ (aimed principally at organisations but also reflective of HSE practices) provides: “The investigation should be thorough and structured to avoid bias and leaping to conclusions. Don’t assume you know the answer and start finding solutions before you complete the investigation. A good investigation involves a systematic and structured approach.”
But how far does a structured investigation go in combatting cognitive bias?
Health and safety investigations are particularly susceptible to bias because they are frequently more subjective and complex than other criminal investigations. The fundamental question is usually ‘why’ (rather than for example ‘who’); and the ‘why’ concerns the behaviour of organisations and not merely individuals. As Daniel Kahneman explained in his brilliant book, Thinking, Fast and Slow, the brain is a machine for jumping to conclusions; and while difficult problems are by their nature hard to solve, the brain is no less inclined to use cognitive shortcuts to ‘solve’ them. Indeed, complex problems may produce additional shortcuts (such as substituting a simpler question to the one being asked).
Particular problems arise when emotions are involved, such as in relation to policy preferences. Kahneman writes: “Your political preference determines the arguments that you find compelling. If you like the current health policy, you believe its benefits are substantial and its costs more manageable than the costs of alternatives…Your emotional attitude to such things as irradiated food, red meat, nuclear power, tattoos, or motorcycles drives your beliefs about their benefits and their risks. If you dislike any of these things, you probably believe that its risks are high and its benefits negligible…[A] search for information and arguments is mostly constrained to information that is consistent with existing beliefs, not with an intention to examine them.”
It is therefore instructive that the HSE ‘Investigating accidents and incidents’ guidance provides: “Investigations that conclude that operator error was the sole cause are rarely acceptable. Underpinning the ‘human error’ there will be a number of underlying causes that created the environment in which human errors were inevitable. For example inadequate training and supervision, poor equipment design, lack of management commitment, poor attitude to health and safety…The root causes of adverse events are almost inevitably management, organisational or planning failures.”
This article was published by Tomorrow’s Health and Safety on 16/03/21. You can read the full digital issue here or read the article by pdf here.