Compliance is a tricky issue. Achieving technical compliance is something which all professional engineers should be familiar with. But are there times when we need to go further and do we put ourselves at risk if we don’t?
We’ve all met the sort of engineers who Harvey Dearden jokingly refers to as the “cover my ass brigade” and the “clause quoters”. These are the ones which always seek to go that extra mile beyond the letter of the contract (or the law), right up onto the moral high ground. They insist on moving beyond technical compliance, straight through professional judgement, all the way into the unachievable realm of perfect certainty.
On the other hand, we’ve probably also come across the box tickers, the ones who do the bare minimum, complying with the letter of the contract, but quite possibly missing the spirit. Is one type ‘better’ than the other?
For what it’s worth, I don’t think engineers should be exceeding legal requirements on so-called “ethical” grounds. We are engineers, not social reformers. Society has decided where the lines are, and we need only colour inside them. Beyond that, our professional responsibility is to conserve resources, money being one of those resources.
So personally, I don’t think the “cover my ass brigade” are any better than the rest of us (even if some of them clearly think they are). If anything, I’d say they were worse, often displaying an unimaginative or even lazy refusal to think or make difficult choices, whilst wasting client resources on protecting their own self-interest.
But is technical compliance with the law an adequate substitute for exercising professional judgment, and if things go wrong, is it an adequate legal defence? I am not a lawyer, but I think perhaps not, although it might well depend on where you are in the world.
Firstly it should be understood that “technical compliance” is often just a polite way of saying “box-ticking”. You can tick all of the boxes, and still not achieve the intended aim of the legislation. This is where professional judgment comes in. There may be situations in which we are required to choose not to apply the letter of the law, being more or less stringent as our judgement dictates. This isn’t so much about ethics, as about intelligently achieving the spirit of the legislation, reconciling the competing requirements of professional practice.
Worldwide, there are broadly two approaches to legislation in this area. The first seeks to codify everything in exquisite detail, in the French style. The USA also used to be big on this approach in the past. In the more extreme examples of such legislatures, saying that you followed the “rules “(as opposed to guidance) is apparently a very strong legal defence (although unthinking boxticking is still not much of a defense). Not following the “rules” is, conversely, a bad thing,
The other approach, common throughout most of the world, (and more or less 100% the case in the UK) refers to the judgment expected of a competent professional. Codes and standards, even laws are not black and white rules; rather they are guidance to be interpreted by suitably qualified and experienced professionals. Saying that you followed the letter of the law, code or standard is a very weak defence, especially if the problems implicit in your choices (even those masquerading as non-choices) were reasonably foreseeable.
This is all very well, but in the real world engineers have managers, and exercising professional judgement is not necessarily straightforward. Academic ethics courses often have “right” answers, but these answers might well lead to needing a new job if your manager disagrees with them.
Quite often, engineers with staff positions feel they have no choice but to accept their manager's position or lose their career prospects/job. Simply put, few careers are rewarded by refusing to accept substandard engineering solutions from senior management. In fact, many personnel are considered to be insubordinate if they don't accept senior level decisions.
Like all engineers, in my career I have been overruled from time to time. However, I try to get these disagreements minuted, along with my reasoning for why I disagree, and my view of eth implications of the choice I disagreed with. Escalation options are sometimes available in these cases, but are fraught with professional risk.
The bottom line is that I am personally always mindful of the courtroom when exercising professional judgement and considering what might be ‘reasonably foreseeable’. My expert witness experience shows me that saying “my manager told me to do it” is a version of the Nuremberg defence (which didn’t work out at all well for those advancing it there). It's the person holding themselves out as an engineer who is liable to be accused of falling short of professional competence, and being required to give evidence to defend themselves of the accusation in the event of problems.
I was also surprised to learn that this liability makes no allowance for length of experience. Engineers are fully expected to have professional judgment on their first day out of university. I'd like to see the professional engineering institutions provide the necessary awareness/education to companies and their members about legal duties.
As with all differences between the practical and the academic, in the real world there’s no right answer. Any genuine ethical issue is at least a dilemma, where both answers are at least a bit wrong, with the challenge being to pick the least wrong based on the resources currently available.
