Germanwings 9525 and a potential conflict of rights

Work continues on the investigation into the crash of Germanwings Flight 9525. I note happily that news media are reverting to what I regard as more appropriate phraseology. Our local newspaper had on Friday 27th March two-word major headline “Deadly Intention“, without quotation marks, and the BBC and Economist were both reporting as though an First Officer (FO) intention to crash the plane was fact. Written media are now reverting to what most of us would consider the formally more accurate “suspected of” phraseology. (For example, see the German article below.)

Flight International / Flightglobal had as main editorial in the 31 March – 6 April edition a comment deploring the way matters concerning the Germanwings crash are being publicly aired.

I read Flight as suggesting the Marseille procureur was abrupt. Many of us thought so at the time. An article from this week’s Canard Enchaine shows that part of the French (anti-)establishment agrees with that assessment, but for different reasons, concerning some political manoeuvring.

But Flight gets the logic wrong. The procureur was not announcing his “conviction” that the FO was “guilty” of…. whatever; neither was the announcement “surreal” by virtue of the fact that the FO was dead.

  • The procureur was not announcing the degree of his belief. He was making an accusation, in the usual formal manner using the usual formal terminology;
  • He was not judging the FO as “guilty”; that’s neither his job nor his right and he is obviously clear about that. Only a court can pronounce guilt.
  • It is not surreal: as Flight should be aware, in France prosecutions are brought, and are sometimes successful, after accidents in which everyone on board died, viz. Air Inter and Concorde. There is a case to be made that people at the airline had overlooked medical information on the FO which (would have) rendered him formally unfit to fly. There is the further possibility that there existed medical information relevant to his fitness to command a commercial airliner which was not shared with the relevant parts of the airline and/or regulator.

There is also a procedural aspect to the formal announcement by the Marseille procureur on Thursday 26th March which the Flight editorial ignores. Everyone knows the importance of preserving and gathering evidence quickly, in this case evidence about the FO. Presumably everyone agrees that it is a good thing. In order to set that process in motion, there need to be formal legal actions undertaken. The crash event took place within the jurisdiction of Marseille. Formal proceedings therefore need to be opened in Marseille and German legal authorities informed and cooperating in those proceedings in order to gather and preserve evidence in Germany. Obviously this needs to be done ASAP, because who knows how other people with immediate access to such materials are going to react. The question is whether proceedings have to be opened at a florid press conference. In this case it might have been hard to avoid.

In its editorial, Flight suggests the BEA is in a more appropriate position to gather evidence than prosecutors, and that they should be allowed to get on with that job. The other industry stalwart, Aviation Week and Space Technology, also says in a recent editorial that “We find more objectivity in accident investigators’ reports than in prosecutors’ statements.” I disagree. State attorneys’ offices and police are far more experienced at securing the kind of evidence likely to be relevant to the main questions about this crash than are aircraft safety investigators.

It seems to be the case that medical information relevant to the FO’s fitness was not distributed appropriately. For example, information concerning a 2009 depressive episode. The airline knew about this episode, and subsequently flight doctors have regularly judged him fit to fly (he regularly obtained a Class 1 medical certificate according to the annual renewal schedule). However, in April 2013 Germany brought into law the EU regulation that the regulator (LBA) must be informed and also determine fitness when an applicant has exhibited certain medical conditions. The LBA has said that it wasn’t so informed of the 2009 episode. (Here is a German news article on that, short and factual. It also laudably uses the “suspected” terminology.) If so, that seems to be an operational error for which the FO was not at all responsible in any way.

It is exactly right that the Marseille procureur along with his German counterparts is looking at all that and it is also right that that was undertaken very quickly.

There is a wider question. The confidentiality of German medical information is all but sacrosant. Its confidential status overrides many other possibly conflicting rights and responsibilities, and I understand this has been affirmed by the Constitutional Court. Pilots have an obligation to self-report, so medical confidentiality has not come into conflict with duty of care – yet. But what about a case when medical conditions indicating unfitness to fly are diagnosed, but the pilot-patient chooses not to self-report? The pilot flies for an airline; the airline has a duty of care. If something happens to a commercial flight which this pilot is conducting, which causes harm to the airline’s clients (passengers) and others (people and objects on the ground near a CFIT; relatives of passengers), then the airline has obviously not fulfilled its duty of care to those harmed: the pilot should not have been flying, but was. However, equally obviously, the airline was unable to fulfil its duty of care: it was deprived of pertinent knowledge.

Personality assessments are used by some employers in the US in evaluating employees. See, for example, the survey in the second, third and fourth paragraphs of Cari Adams, You’re Perfect for the Job: The Use and Validity of Pre-employment Personality Tests, Scholars journal 13; Summer 2009, along with the references cited in those paragraphs. It is not clear to me at this point whether it is legal in Germany to require potential employees to undergo such tests. (As I have indicated previously, I do think that some tests, such as MMPI, could identify extreme personality characteristics, which could be associated with future inappropriate behaviour when operating safety-critical systems, in some cases where these would not necessarily be picked up in the usual employee interviews.)

I suggest that this employee medical confidentiality/employer’s duty of care issue is a fundamental conflict of rights that won’t go away. It may be resolved but it cannot be solved. It may turn out that it is currently not so very well resolved in Germany. I would judge it a good thing if this one event opens a wider debate about the conflict.