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Home   President's Corner President's Message To err is human
To err is human
... even if we would rather avoid it! We all recognize that progress often stems from our errors. Common wisdom has always held that to err is human. "Only fools don't change their mind" is often said as is "you have to break some eggs to make an omelette". Error has even been defined by many scholars as the best way to learn.
Even then, we try to avoid making errors. In fact, we have developed a number of ways to manage the risk of making errors. For instance, we can change governments every three, four or five years. We can change jobs, move, or divorce if we think we were wrong somehow. We have even found ways to try to prevent committing errors: hire a consultant, consult a financial planning advisor, or take marriage preparation courses.
We often use a two-tier system to help us manage our stress in case of error: first, we try to get the best information available before taking a decision, and then we allow ourselves to change our mind and correct our errors.
But what about our justice system? Does it work the same way?
How does our justice system manage the risk that errors may occur?
Our justice system puts a lot of energy in the initial decision-making process. In many ways, it is a system with experience in difficult decision-making assignments. Indeed, it takes a decision-making process that people can trust to be able to make decisions on one's guilt and on the appropriate jail term to be served, or to impose some financial liability on people who possibly do not have sufficient means to pay such an amount.
The justice system will first set out to obtain the best information it can about an issue. For example, it is assumed that a trial held before an impartial judge and in an adversarial manner is a good way to check out the facts. Witnesses are bound `to tell the truth, the whole truth, and nothing but the truth', and are cross-examined on their testimony. It is believed that this pointed questioning of their assertions is a good way to determine if witnesses have really told the truth, the whole truth and nothing but the truth, or if they exaggerated, embellished their testimony or, even worse, lied. Finally, our current justice system uses presumptions to manage uncertainty: it is better to let a guilty person go free than to condemn someone who is innocent. This presumption helps us determine the outcome of borderline cases, where some doubt still remains even after hearing all the evidence.
It is not only in the criminal trial system that such care is taken in the initial assessment process of the information at hand. In fact, many systems operate just about the same way. For instance, tests are administered to determine if someone is competent to drive a car or to practice medicine. Banks carry out credit checks before they lend money. Financial consultants conduct market research before launching a new product. Large corporations must often undertake environmental impact studies before proceeding with the construction of new production facilities.
However, even if we do our best in trying to get the best information possible, we can still make mistakes. We can never be sure that the system we use, however well managed it may be, works perfectly every time.
We are all aware that our criminal justice system has sometimes failed us in the past: the Marshall, Milgaard, and Morin cases cast a doubt as to whether other criminal cases may have been wrongly decided also.
Issues for Law Reform
The Law Commission of Canada has recently sponsored a research project to study issues relating to the way decision-making entities operate to determine if their processes could be improved. Operations of decision-making organizations are indeed a major aspect of governance within our society: How are the decisions affecting citizens taken? How does the risk-management of possible errors work within our decision-making system? How could this process be improved? These are some of the concerns the Commission seeks to address.
Recently, we have researched these issues within a specific context, the granting of authorizations for using human subjects in health research studies, i.e. the authorization process for testing new drugs, for example. Currently, all research involving human subjects must be approved by an ethics committee, which, among other criteria, insists on the signing of consent forms by the people involved as subjects in the research.
Our research has shown that, although this authorization process normally works well, it could be improved. Two issues in particular have raised some concerns:
Is there any quality control system in place for the people subject to these regulations?
- Is there any way of assessing if the system actually works as it should, if the consent forms were appropriately signed? Were the people required to test these new drugs asked if they clearly understood the terms of the consent they were giving?
Does the system learn from its errors and does it allow for innovation?
- Can the system learn from its errors? For example, if the human subjects involved were not comfortable with the process of signing a consent form to test a new drug, if they had concerns that exceeded the concerns identified in the literature, was the system able to understand the problem and respond to their concerns? Was it possible to conceive new ways to reconcile the interests of researchers with those of the more vulnerable patients?
Actually, these two questions could be raised concerning a number of our decision-making processes. Do we really know if driving tests adequately measure the abilities of future drivers? Are driving tests the best process to prevent car accidents from occurring in all categories of drivers? Should we also administer a test of a person's reflexes, or a comprehensive vehicle maintenance check-up scheme?
It is usually difficult for bureaucracies to innovate: it is usually only after complaints are received or scandals unearthed that reactions occur. However, our research shows that even if there are no complaints, it may still be necessary to ascertain if client groups are well served and if the methods currently being used are effective. It would be interesting to reflect on ways to develop `self-correcting' decision-making systems that automatically scrutinize their own performance and `learn' from any errors that are detected.
The Law Commission of Canada is committed to the study of governance issues and to finding ways to improve decision-making systems. Canadians are invited to submit their comments on these issues and their ideas on law reform in general.
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