The couple who pick up a lottery ticket they find in the street and then claim the win.
The trainee solicitor who receives an incorrect Amazon delivery and fails to return it.
The nurse who chooses not to correct a dementia patient when she says her husband, who died several years previously, is coming to see her today.
These are the types of scenario that were discussed at yesterday’s conference entitled “Confronting Dishonesty: The significance of context in considering liability”.
Held in the conducive surroundings of the Moot Court in the Law School at Keele University, this was an event that ANHH was delighted to sponsor. With luminaries in the room and online from the fields of academia, law, health sciences, ethics, and governance, the day afforded a rare opportunity to reflect on an issue of unrecognised importance and hidden complexity.
If you return to those example scenarios, all three could reasonably be assessed as “dishonest” - but convene a jury of one’s peers to consider them and the decisions might be interesting. With the lottery winners, do people respond differently if it's something that "everyone would do"? With the solicitor, it might not ever get to a court, but in a regulated industry it could result in them being struck off. And, with the nurse, everyone could understand why they did what they did.
I felt privileged to participate in the panel discussion, offering a focus of corporate and clinical governance. My learning from the event?
1) Dishonesty has two dimensions – the conduct (what was done), and the context (why they did it). The former legal test (Ghosh) allowed for this separation of the objective and the subjective, but the current test (Ivey) asks only if the “conduct was dishonest by the standards of ordinary decent people”. The research described by one speaker yesterday has found that (not surprisingly) jurors don’t think in one dimension. And how do you define “ordinary decent people”?
2) Linked to the above, dishonesty is not always a bad thing. The field of medical ethics merely mirrors the intricacy of clinical practice where not telling the truth can sometimes be different from telling a lie. For every example of prima facia dishonesty – Mid Staffordshire, Shrewsbury, Chester, Shipman – there are many more nuanced minutiae. “In good faith” is another dangerous generalism, but there will always be a need to consider circumstance. What can one infer from someone’s dishonesty? What might have been their reasoning and state of mind? Is it in anyway justifiable?
3) Dishonesty breeds dishonesty. Here’s a moot point for you to reflect on when sipping your tea – which is worse: failing to take a patient’s observations when they are due or creating a record to suggest you have taken them when you haven’t? I can hazard a guess at your opinion, but both are wrong in a professionally regulated setting.
4) In governance, as in life, it’s always best to tell the truth. Just as it’s not acceptable to deal in half-truths in clinical governance, so it’s never right to withhold information in corporate governance. Misleading someone cannot be justified as a means to protecting or relieving stress; “best interests” is a weak defence.
5) Public servants have a public, professional duty. A nurse or a doctor or a civil servant or a teacher or a police officer or an MP hold that position 24 hours a day, not just when they are “in the office”. Trust and credibility aren’t confined to working hours. I’ve written previously about the Principles of Public Life; just as it’s instructive that 3 of the 7 relate to today’s theme (integrity, openness, honesty), so it’s no coincidence that every code of professional practice or corporate governance code places honesty and truthfulness at their core.
ANHH will return to this theme in the future. We hope to do more with our friends at Keele’s Law and Nursing Schools, and elsewhere, to consider this both practically and intellectually.
In the meantime, as ever, please drop us an email if you want to discuss or have a governance challenge that we can work with you to address.