Editor's Published Articles

The Crisis in Decision-Making
address to

The Council for the National Interest Queensland Division
31 March 2006
 


During the Bundaberg Hospital Commission of Inquiry, and in its aftermath, I discovered something which at least to me seemed very profound.

Now, I accept that my discovery may not be quite so profound as I have imagined; indeed, it may not be a discovery at all. Perhaps the phenomenon which I have observed is well-known to all of you. Maybe I have only just managed to catch up with the rest of society, in becoming aware of something which, for everyone else, is a commonplace. Quite possibly, the proposition which I consider to be deep, insightful, even momentous, is, in fact, perfectly trite, entirely hackneyed.

If that is so if my supposedly profound discovery is no more than the received wisdom of the age let me simply say this, both in my own defence, and by way of apology in advance for telling you what you already know: My thesis, whether it be a genuine revelation or just common orthodoxy, is, I think, still worth discussing.

What, then, is the hypothesis that I am postulating? In a nutshell, it is that our contemporary society is facing a crisis of decision-making, quite unlike anything in recorded history.

We live in a peaceful, orderly, liberal, democratic society; a society which is one of the most affluent in recorded history. The problems faced by this society are almost trivial, when compared with those which challenged our parents and grandparents, who lived through two World Wars and a Great Depression. We certainly have the wealth, the resources and the technology to address the comparatively minor problems which we face. Our society can, and should be able to, do so.

Yet nothing happens. Why ? Because those who are empowered to act decisively can't or won't do so, and those who would act decisively are not permitted to do so.

I first noticed this trend in my own profession. When I commenced in practice as a barrister, more than 20 years ago, the majority of judges both on the Supreme and District Courts were men of the war generation. Most had served in the Army or Air Force, some in the Navy. Most had been officers, a few held non-commissioned ranks. Even the minority who had never worn a uniform whether due to their age or their health, or for other reasons had contributed to the war effort in different ways, if only by taking on the burden of extra work left behind by their absent colleagues.

May I say that this was a greater burden than some may think. At the height of the War, there were only two barristers remaining in practice in Queensland; all the rest were away, serving their country. And there was an arrangement in place an arrangement which, so far as I am aware, did not exist in any other profession or in any other place that a barrister appearing in court in place of a colleague who was absent on active service would make over the entire fee to the absent barrister or his family.

Three features distinguished these judges, who were men of the war generation, from younger appointees. First, they had (at least in my perception) a deeper understanding of human nature and human behaviour a deeper understanding of what makes people tick. Secondly, I think it is fair to say that they were generally tougher harsher than their successors. And thirdly, they were, without doubt, more decisive.

A few examples may assist to illustrate these characteristics:

      One judge of the war generation was hearing submissions from counsel for a convicted criminal, urging that his client should receive some leniency on sentencing, on account of his youthfulness the client was aged 23. The judge exclaimed that he could not see how this justified any leniency, since he the judge had been fighting in Europe, as an acting colonel with the AIF, at the same age.

      Another of the war generation judges was hearing submissions on behalf of a man who had been seriously injured in an industrial accident. Counsel urged that there should be a substantial award of damages for "pain and suffering" and "loss of the amenities of life", pointing out that his client could no longer even tie his own shoe-laces. The judge, who had lost an arm when he was shot down over North Africa, merely responded: "He'll get used to it".

     Yet another of the war generation judges asked a self-represented man, whom the jury had found guilty of armed robbery, whether he had anything to say in mitigation of penalty. "As God is my Judge", exclaimed the man, "I am not guilty". His Honour responded in just eight words: "God isn't ... I am ... you are ... ten years".

I am not saying that these men were better judges than the current ones. In many cases, their legal education and their knowledge and understanding of legal principles was probably inferior to many of today's judiciary. There was also an unfortunate tendency to trust authority figures. Whilst it would be unfair to ascribe to these judges any blame for the corruption in the pre-Fitzgerald Queensland police force, it may be observed that corruption was permitted to prosper under a judiciary which was not always astute to identify instance of perjury, and other misconduct, on the part of police officers.

My point, however, is that these judges were decisive. They had the self-confidence to reach a conclusion, and to give effect to it, without wasting any time. Even if they were less learned than present-day judges, their instincts told them what was right, and they did not hesitate in giving effect to their instinctive sense of justice.

At least to my way of thinking, that is what our community expects of its judiciary. Perhaps you will forgive me for quoting one of Australia's greatest-ever judges, Sir Owen Dixon, speaking about a previous Chief Justice of Australia, Sir Samuel Griffith. Griffith, I might say, is one of my own heroes a man so industrious, so decisive, that he could hold the offices of Premier and Attorney-General, whilst continuing to conduct a flourishing practice as a barrister, and finding time to draft Australia's Constitution; a man who, whilst discharging the duties of Chief Justice of Queensland to a standard of efficiency seldom equalled and never bettered, also found the time to prepare the first (and still, in my humble opinion, the best) codification of our criminal law, whilst occupying his leisure hours in publishing a translation, from the original Renaissance Italian, of Dante's Divine Comedy. Dixonsaid of Griffith that he was "dominant and decisive", that "he did not hesitate, he just felt that he knew; and that what he knew was right". Is that not how a judge should be ?

In recent weeks, Queensland's "tabloid of record" the Courier-Mail has focussed extensively on a certain Federal Magistrate who, in two cases, allegedly plagiarised the work of another magistrate. The same Federal Magistrate is accused to extraordinary delays delays of over 3 years in handing down her decisions. One report stated that "there had been more complaints about [this Magistrate's] handling of cases than any other state or federal judicial officer". I have also been told, by more than one lawyer, that it is common practice, when a case is listed before this Magistrate, either to settle the case or to get it adjourned, due to both the standard of her judgments, and the delay in receiving them.

Without commenting on the truth of these allegations, let me simply adopt the remarks of Peter Lyons QC, President of the Queensland Bar, as quoted in the Courier-Mail:

"... the federal attorney-general makes appointments to the courts without adequate consultation about the suitability of potential appointees. Nor is there anything like sufficient recognition of the obvious requirement that a person appointed to judicial office must have extensive experience in the conduct of litigation."

Introducing legislation to establish the Federal Magistrates Court, the then Federal Attorney-General, Darryl Williams QC MP, said in his second reading speech: "The Federal Magistrates Service is intended to provide a quicker, cheaper option for litigants ... ". At a later point, Mr Williams added: "there will be more emphasis on delivering decisions orally in appropriate cases, rather than parties having to wait for reserved judgments".  He concluded: "the Federal Magistrates Service will be able to deal with matters before it with a less formal and more streamlined manner, to ensure that matters are dealt with as expeditiously and cheaply as possible." [emphasis added]

Those were all very noble objectives. But, if the allegations against this particular Federal Magistrate are true, those ambitions seem to have foundered through a single and simple mistake: the failure to appoint, as a member of the Court, a person who has not only the intellectual capacity, but also the self-confidence, necessary to make prompt decisions. Earlier, I summed up the problem facing our community by saying that "those who are empowered to act decisively can't or won't do so, and those who would act decisively are not permitted to do so". It would seem that at least one Federal Magistrate falls into the former category.

What, you may ask, is the connection between all of this and my experience as Chairman of the Bundaberg Hospital Commission of Inquiry?

I commenced that Inquiry with the (perhaps naive) belief that this phenomenon, which I have detected in some aspects of our judicial system this crisis of decision-making is confined to the judicial branch of government. What I discovered, both during and after that Inquiry, is that the same phenomenon infects decision-making processes at virtually every level of public administration. Indeed, our courts are models of efficiency and decisiveness, as compared with other branches of government.

Let us begin, where the Commission of Inquiry began, with Dr Jayant Patel. On all of the evidence now available, there can be no doubt that he was, quite simply, a menace to life and limb for patients in Bundaberg. But to focus on Patel is to treat the symptom, and to ignore the disease. Without in any way detracting from the seriousness of Patel's malpractice, it has to be said that what happened in Bundaberg was not just tolerated, but actively encouraged, by bureaucratic inertia.

I have previously pointed out that, for Patel even to obtain the position of Director of Surgery in Bundaberg let alone for him to retain that position for two years whilst killing and maiming dozens, perhaps hundreds, of patients required the medical bureaucracy to fail at every turn. Let me sum up what was needed to produce this result:

      First, it required a Medical Board which was content, without adequate enquiry, merely to take Patel's word that he was duly qualified and fit to practise surgery in Queensland a Medical Board which made no serious attempt to check his credentials, despite their having documentation, provided by Patel himself, which, on close scrutiny, would have alerted any careful enquirer to unresolved problems in Patel's professional background a Medical Board willing to assume that a private employment agency, a firm which expected to earn about $13,000 for placing Patel in Bundaberg, had conducted all the necessary checks with Patel's previous employers and professional referees.

      Secondly, it required a public hospital system, willing to employ Patel as a surgeon, without making even the most rudimentary inquiries or investigations regarding his previous employment or professional standing. If Patel had applied to Woolworths for a job stacking shelves, he should have expected to face more rigorous integrity checks.

      Thirdly, it required a health system which was driven by budgets, statistics, and other bureaucratic falderal a health system which was totally oblivious to the welfare of patients. The primary object in appointing Patel to the vacant surgical position was to find somebody anybody who could be relied upon to work long hours for a modest salary, without making waves with his bureaucratic masters. The standard of his surgical skills was an irrelevancy.

      Fourthly, it required an administration at Bundaberg Base Hospital willing to ignore the fact for it is the fact that Patel's employment at Bundaberg had been approved by the Medical Board on the condition that he be supervised by the Director of Surgery. Instead, without permission from the Medical Board, Patel was employed as the Director of Surgery, not supervised by anyone. From his first day in that position, Patel was acting illegally with the active connivance of Queensland Health's bureaucrats.

      Fifthly, it required bureaucrats who were willing to ignore without even paying lip-service to credentialing and privileging procedures, which are supposed to ascertain a specialist's level of competence, and to set limits for the procedures which he or she is permitted to undertake. In Patel's case, there was not even an interview panel set up to consider his suitability to fill the vacancy.

      Sixthly, it required an administration which ignored all of the usual safeguards which are standard in public and private hospitals peer review systems, such as Mortality and Morbidity Committees systems by which the performance of one surgeon is supposed to be reviewed by his or her professional colleagues. Such systems ought to have picked up problems with Patel's surgical practice; but Patel himself, as Director of Surgery, was put in charge of those systems for the Surgical Department at Bundaberg: not surprisingly, the systems over which he was appointed to preside failed to detect his own incompetence.

      Seventhly, when the alarum bells did start to ring perhaps faintly at first, but with increasing volume as the body-count mounted it required hospital administrators willing to turn a deaf ear to all of the warnings which were filtering through from the clinical areas of the hospital: warnings from the doctors and nurses who attempted to draw attention to the Patel problem, and warnings even from the patients who had suffered at Patel's hands, or members of their families.

      The eighth requirement was an administration, not only willing to turn a deaf ear to the increasing stream of complaints about Patel, but also willing to turn a blind eye to the legal processes which should have stopped the Patel juggernaut after just one fatality: the strict legal requirements of the Coroners Act. Under that legislation, it is mandatory to report any death which (and I quote) "was not reasonably expected to be the outcome of a health procedure". Yet, of the 13 deaths which have been identified as connected with sub-optimal care by Patel, only one was reported to the coroner. The Bundaberg Hospital administration knew that every one of these operations was "elective", in the sense in which that term is used by Queensland Health in other words, they were operations where the patient's survival did not depend upon urgent surgery. But 12 out of 13 death were allowed to go unreported.

      However, even to have such incompetents supposedly running the hospital depended on a  ninth requirement, involving an administrative failure at a much higher level. The hospital executive in Bundaberg would not even have made the short-list with a private sector employer, seeking a manager for a far less complex business, with fewer staff and a much smaller turnover, performing a much less significant role. Private sector employers look for managerial staff who are resourceful who have judgment and discretion, presence of mind, initiative who are innovative, progressive and proactive. Those same criteria in fact disqualify a person from appointment or promotion within the Queensland Health bureaucracy. District Managers, Directors of Medical Services, and the like, are not expected to think for themselves; in fact, they are not even allowed to. The reality is that the executives in Bundaberg did exactly what was expected of them no more and no less and the ultimate blame lies with the architects of a system which set them up to fail.

      Tenthly, and finally, what occurred in Bundaberg required an over-arching administrative system designed to silence the final line of defence in our medical system against the likes of Jayant Patel: the loyal, hard-working, competent and conscientious clinical staff the Toni Hoffmans and the Peter Miachs of this world who attempted to blow the whistle on Patel. Within the Queensland Health bureaucracy, such whistleblowers face threats at every turn: the threat of being sent to Coventry; the threat of facing trumped-up disciplinary complaints; the threat of having their work hours re-scheduled to less convenient times; threats to their prospects of career advancement; indeed, threats to their entire careers.

The tenth point is possibly the most critical. It explains why I have said that this crisis in decision-making has two aspects: first, that those who are empowered to act decisively can't or won't do so; and secondly, that those who would act decisively are not permitted to do so. It is not enough that the ship is without a captain that the bridge has been taken over by the purser's clerks, the cabin boys and the stokers. In addition, the deck officers have to be thrown in the brig, cast adrift in lifeboats, or simply flung overboard, so they cannot even warn the passengers that the ship is sinking.

How has this problem come about? It is easy to say that it is the result of an over-inflated bureaucracy. The statistics speak for themselves: within Queensland Health, there are some 9,250 employees whose duties are exclusively bureaucratic. That is more than double the number of hospital beds provided by Queensland Health more than 2 times the number of medical practitioners employed by Queensland Health.

It is a truism to say that decision-making, unlike almost every other form of human endeavour, is retarded rather than accelerated by the number of people involved. A hole may be dug more quickly if there are 10 workers involved rather than one; but the decision where to dig the hole will be made much more quickly if it is left to one person rather than a committee of 10.

Professor C. Northcote Parkinson, the author of Parkinson's Law a book almost unique for the fact that it is often quoted (or perhaps I should say misquoted) by people who do not even know that there is a book of that name offers statistical proof for what he terms "Parkinson's First Law": the proposition that "a Civil Service expands at an inexorable rate of growth, irrespective of the work (if any) which has to be done".

      One example he gives is the Royal Navy. As early as the 1930s, Parkinson had successfully predicted that the Royal Navy would eventually have more admirals than ships an interesting contrast with a health service which has more administrators than the total number of hospital beds and doctors combined. Parkinson notes that, in 1914, "4,366 officials could administer what was then the largest navy in the world" a navy comprising 542 capital ships and about 125,000 officers and men. By 1967, when the number of ships had fallen from 512 to 114, and the number of officers and men had declined to under 84,000, the number of public servants had risen from 4,366 to some 33,000 a number, Parkinson concludes, "barely sufficient to administer the navy we no longer possess".

      Another example was the British Army, which according to Parkinson "need never shirk comparison with the Admiralty":

"In 1935 a civilian staff of 9,442 sufficed to administer an Army reduced to 203,361 officers and men; the low-water mark of unpreparedness for a conflict which was by then obviously inevitable. By 1966 a civilian staff of 48,032 was giving encouragement to some 187,100 men in uniform, a 7.9% reduction in fighting strength being accompanied by a 408% increase in paperwork."

      Parkinson's third example was the British Colonial Office. In 1935, a mere 173 bureaucrats were sufficient to administer an empire which encompassed about a quarter of the world's population, and a similar proportion of its land mass. By 1960, the bureaucracy had grown from 173 to 2,827 a sixteen-fold increase despite the fact that the empire had virtually ceased to exist.

Parkinson stops short of offering any cure for this malaise. In his words: "It is not the business of the botanist to eradicate weeds. Enough for him if he can tell us just how fast they grow."

In my observation, the size of the Queensland Health bureaucracy is a significant factor; but it does not, alone, explain the Department's inefficiency. The problem is not simply that there are too many people; the problem is also that they are the wrong people. They are the people who, whether or not they possess the intellectual capacity to make good decisions, lack the self-confidence to do so.

One clear manifestation of this is the committee system which exists within Queensland Health. No issue of any significance can be, or is, decided, unless it has been considered by a committee or, as is more often the case, a myriad of different committees, examining the same issue from different viewpoints.

A cogent example of this emerged during the Inquiry. It involved a minor set of legislative amendments which the higher echelons of the bureaucracy regarded as essential. The evidence revealed that these amendments had been under consideration by the so-called "legislative projects unit" for some eight months. As I commented at the time (and I stand by my comment) "that project would take anyone any competent lawyer about half a day to finalise".

When Winston Churchill became Prime Minister in the darkest days of 1940, one of his first steps was to commission a supply of stickers, which he would subsequently affix to ministerial directions and memoranda, bearing the words "ACTION THIS DAY". Any contemporary politician who sought to emulate Churchill's attempt to overcome bureaucratic inertia would need rather larger stickers, reading something like this:

ACTION THIS DAY
or as soon as possible hereafter, once:

(1)
a business case study has been prepared;
(2)
a detailed feasibility report has been obtained;
(3)
an environmental impact statement has been commissioned;
(4)
indigenous welfare issues have been fully addressed;
(5)
approval has been given by the legislative standards committee;
(6)
compliance with equal opportunity guidelines has been ensured;
(7)
workplace health and safety implications have been reviewed;
(8)
there has been compliance with the "Smart Directions Statement for Information Technology Conditions within the Queensland Government"*
(9)
appropriate consultation with community interest groups has been undertaken;
(10)
  the proposal has been submitted to the relevant inter-departmental review committee;
(11)
  all relevant ethical and integrity considerations have been satisfied in conformity with "whole of government" policy;
(12)
  detailed costings have been prepared and approved by Treasury;
(13)
  tenders have been let in accordance with the Financial Accounting and Audit Act, the whole-of-Government buying policy, and the Auditor-General's Guidelines;
(14)
  media releases have been prepared by the Department's media office in consultation with the Minister's press secretary; and
(15)
 
the launch date has been confirmed with the Cabinet Office and all relevant Ministers and Heads of Departments.

Unlike Professor Parkinson, I am willing to offer a suggestion as to how we can address this problem. Appropriately, I think, my suggestion is drawn from an analogy in medical science.

Some years ago, Toowoomba General Hospital experienced a problem with antibiotic-resistant bacteria infecting one of the wards. The solution adopted by the Medical Superintendent was practical, if somewhat unorthodox. He acquired a number of mirrors, and had them set up throughout the ward to shine sunlight into every nook and cranny. He reasoned correctly, as it turned out that the infectious bacilli could only survive in the dark.

Today, new and much more virulent pathogens are threatening the health of this State's public hospital system the 9,250 bureaucrats whom I have mentioned. These parasitic organisms also thrive in an environment of Cimmerian gloom, and have evolved an immunity to even the most powerful remedies.

Any attempt to control these infections by conventional means is worse than useless. Even if you succeed in getting rid of significant numbers, you eliminate only the weakest and least harmful. Those remaining are hardier, even more resistant to control they reproduce and multiply at an even greater rate.

The only treatment which has any chance of success is the antimicrobial ministration pioneered at Toowoomba General Hospital. These organisms, inhabiting the crepuscular recesses and crevices of the public hospital system, are susceptible only when exposed to direct light. Experimentation which I conducted at the Bundaberg Hospital Commission of Inquiry shows that even the threat of exposure sends them into frenzied paroxysms like Dracula, they crumble to dust when the spotlight is turned on them.

In his evidence, the distinguished cardiologist, Professor Con Aroney, described the conduct of such organisms as "sociopathic". In an attempt to understand what Professor Aroney means by that, I have done a little research of my own. According to one source, a sociopath appears normal, and is therefore not easily recognisable as deviant or disturbed. The clinical indicators associated with this personality type include: glibness or superficial charm; a grandiose sense of self; a lack of any remorse, shame or guilt; callousness or a lack of empathy; and a failure to perceive that anything is wrong with them. Sociopaths are described as authoritarian, secretive, manipulative, paranoid, and pathological liars.

Those who think that Professor Aroney was guilty of exaggeration when he adopted the expression "sociopath" might care to look at a particular document generated out of Queensland Health's headquarters in Charlotte Street a so-called "risk rating matrix". This document, we were told, is designed to assist staff in categorising the seriousness of adverse events. A death whether resulting from medical malpractice, or resulting from a workplace health and safety incident is regarded as a "major" issue. On the other hand, significant damage to Queensland Health's own reputation is an "extreme" issue. Who, but a sociopath, could have designed an official document which rates the death of a human being any human being, whether a patient in one of the Department's hospitals, or even an employee of the Department as a less serious matter than an injury to the Department's own enviable reputation?

The palpable dishonesty of Queensland Health with respect to waiting list figures is another example. To borrow Andrew Lang's aphorism, Queensland Health uses statistics as a drunken man uses lampposts for support, rather than for illumination.

I was intrigued to learn, recently, that the Office of the Coordinator-General an office which, to my knowledge, is unique to Queensland was first created in 1938 by the Forgan Smith Labor Government, following an international fact-finding mission aimed at finding ways to restore the State's economy in the wake of the Great Depression. After reviewing the situation in a number of countries, Forgan Smith came upon a striking example of an economy which had been devastated by the Depression, but which had recovered more rapidly than most, due principally, as the mission concluded, to the efficiencies which resulted from having a single decision-maker empowered to make things happen. That economy was, of course, the economy of Nazi Germany. The role of Queensland's Coordinator-General was modelled not, as you may be guessing, on Adolf Hitler but on Dr Fritz Todt, founder and head of what was called "Organisation Todt", the German government's construction and engineering group responsible for such projects as the Autobahn network. Incidentally, after Todt's death in an air crash, he was succeeded by Reichsminister Albert Speer.

At about the same time, the Forgan Smith Labor Government was embarked on another revolutionary agenda. It set out to create the first public universal free hospital system in the world an initiative which predated the National Health Scheme in the UK by some 15 years, and Australia's first national free health scheme, Medibank, by close to 40 years.

To fulfil that truly momentous platform, the relevant minister Ned Hanlon deliberately "head-hunted" a man who was both an outstanding medical practitioner, with a specific expertise in tropical medicine, and an experienced public health administrator. Thus came Dr Sir Raphael Cilento to the role of Director-General of Health and Medical Services. Described by Ross Patrick in his History of Health and Medicine in Queensland as "brilliant, energetic, eloquent and ambitious" and by Hanlon, quite simply, as "the best man in Australia for the position" Cilento was to become, for all intents and purposes, the Coordinator-General's equivalent in the Health Department; if you like, the Fritz Todt, or the Albert Speer, of health administration in the State.

It is probably irrelevant to mention that Sir Raphael was also the father of noted Queensland actress, Diane Cilento, and therefore, at one time, the father-in-law of the original James Bond, Sean Connery also the grandfather of actor Jason Connery, who, at the time of his birth, the press liked to call "008". However, a better indication of Sir Raphael's calibre can perhaps be drawn from the fact that, after the Second World War, he was given one of the most difficult and demanding jobs imaginable, when he was appointed as the United Nations Director for Refugees and Displaced Persons.

That Queensland succeeded in its attempt to establish the first public universal free hospital system in the world is a testament to the efficiency of having, as the mandarin in charge of the scheme, a person both qualified and willing to make decisions, and to get things done. I have no doubt that Cilento made mistakes, as everyone makes mistakes who has the courage to actually do something. But even bad decisions are better than no decisions at all and, on the whole, it would seem that the decisions made by Cilento were mainly the right ones.

Very recently, the Beattie Government has apparently learnt that one intelligent, self-confident and courageous decision-maker is far more effective, in a situation of crisis, than a team of mediocrities. I refer, of course, to the appointment of General Peter Cosgrove to take charge of the emergency aid effort in North Queensland following Cyclone Larry. The crisis in Queensland Health is perhaps not so acute, but it is certainly more wide-spread, and poses a greater threat to the lives and health of a greater number of Queenslanders. What Queensland Health needs, right now, is a medical equivalent of Peter Cosgrove another Raphael Cilento an intelligent, experienced, vigorous, and decisive leader so that Queensland Health, like Innisfail, can be put on the road to recovery.

Will that happen? I doubt it. Some 9,250 bureaucrats have too much to lose for if there is even one person who would act decisively and is permitted to do so, what is to become of those who are presently empowered to act decisively, but can't or won't do so?

Let my own experience, as the Chairman of a Commission of Inquiry, serve as a warning to others. Any attempt to act decisively inevitably stirs up powerful bureaucratic opposition. I have spoken of bureaucratic inertia: basic physics tells us that a body's inertia is directly proportionate to its mass. To overcome the inertia of the Queensland Health's massive bureaucracy will require an irresistible force to meet an (almost) immovable object otherwise, the weaker element will be destroyed.

I should know. I tried, and I failed.


* I am not making this up there is actually a "whole-of-government" policy called the "Smart Directions Statement for Information Technology Conditions within the Queensland Government"
 

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