In 2001, a new law was passed by the Danish Parliament mandating the establishment of a compulsory, strictly non-punitive, and strictly confidential system for the reporting of aviation incidents. A particular and perhaps unusual feature of this reporting system is that not only are employees (typically air traffic controllers and pilots) ensured strict immunity against penalties and disclosure but, also, any breach against the non-disclosure guarantee is made a punishable offence.
The Danish Reporting System
The following material is drawn from the article “The creation of an Aviation Safety Reporting Culture in Danish Air Traffic Control” by Peter Majgård Nørbjerg - Head of incident investigation, Naviair, Kastrup, Denmark.
The Danish aviation reporting system is mandatory in the sense that air traffic personnel are obliged to submit reports of events, but is strictly non-punitive in the sense that they ensured indemnity against prosecution or disciplinary actions for any event they have reported. Furthermore, the reporting system is strictly confidential in the sense that the reporter’s identity may not be revealed outside the agency dealing with occurrence reports.
Reporters of incidents are ensured immunity against any penal or disciplinary measure related to an incident if they submit a report of within 72 hours of its occurrence and providing it does not involve an accident, deliberate sabotage or negligence due to substance abuse. Punitive measures are stipulated against any breach of the guaranteed confidentiality.
In 2000, growing concerns about flight safety in Danish airspace were raised by the stakeholders in Danish aviation (service provider, regulator, and professional organisations). The concern was associated with losses of separation between aircraft that was not being reported due to the fear of sanctions of the reporter, particularly if he/she was partly or fully responsible for the incident. The whole aviation system in Denmark suffered from this, and no lessons were being learnt and disseminated from these events.
As a consequence of the concern, the Transportation Subcommittee of the Danish Parliament asked representatives from the stakeholders’ organisations to explain their case to the Committee. This eventually led to the passing of a law in 2001 making non-punitive, strictly confidential reporting possible. It stands as is the only law in Denmark that guarantees immunity from prosecution when an otherwise punishable offence has been committed.
The law grants freedom from prosecution, even though the reporter may have committed an erroneous act or omission that would normally be punishable. Furthermore the reports from this scheme are granted exemption from the provisions of the freedom of information act. Investigators are, by law, obliged to keep information from the reports undisclosed. However, the law grants no immunity if gross negligence or substance abuse is present in the reported situations, and it is also punishable by fine, not to report an incident in aviation.
Implementation - General
After the law was passed, the Danish aviation regulatory body, Statens Luftfartsvæsen, carried out the implementation of the regulatory framework. The regulatory authority subsequently issued instructions to the following groups:
- Pilots holding an Air Transportation Pilots License (ATPL)
- Air traffic controllers
- Certified aircraft mechanics
- Certified airports.
- Pilots holding a Private Pilots Licence (PPL).
For these five categories of license holders it is now mandatory to follow the reporting system. Since both pilots and air traffic controllers now have to report occurrences within the reporting system, it is obvious that these two categories will sometimes be reporting situations basically created by the other. This will not incriminate either, as long as each professional abides by the obligation to report. This means that, for example, a situation created by air traffic control, reported by a pilot, will not incriminate the controller as long as the controller reports the same situation.
In order to make it clear which situations these personnel are obliged to report, the regulatory authority issued guidance material to each of the five categories. Since the situations that could pose a threat to aviation are different for the five categories, each of the five categories has their own set of descriptions of the mandatory reportable situations.
Implementation in ATC
For air traffic control, the regulatory authority issued reporting categories that were derived from ESARR 2 dealing with reporting and assessment of safety occurrences in ATM. Reportable occurrences in this field therefore include:
- Separation losses between aircraft where no avoiding action was carried out
- Inadequate separation (where no minima exists)
- Runway incursions
- Aircraft deviation from clearances
- Deviation from procedures
- Failure of communication function
- Failure of surveillance function
- Failure of data processing- and distribution function
The investigation process is one of the most important parts of a safety culture. The reports received by Naviair (Danish air navigation service provider) range from small deviations or technical malfunctions, to serious losses of separation. Naturally, not all situations will receive the same amount of attention and interest from the investigators. While all reports are evaluated, in order to gain maximum flight safety benefit, priorities have been established for dealing with the reports.
The evaluation tries to establish whether immediate correction is required. These situations would typically be cases of separation losses between aircraft or serious procedural or technical issues. All separation losses between aircraft are investigated thoroughly, and these incidents are categorised and include the following:
- Separation minima infringement
- Runway incursion where avoiding action was necessary
- Inadequate separation between aircraft
The investigation includes the gathering of all factual data such as voice recordings, radar recordings, flight progress strips, etc. This is followed by interviews face to face with the involved controller(s) and other personnel relevant to the situation. The investigator then produces a written report (within a maximum of 10 weeks), the purpose of which is to recommend changes to prevent similar incidents.
The incident investigators are trained in both investigation techniques and human factors. In addition, they are generally required to maintain their operational status, which enhances the credibility of the controllers and the investigation process.
It is of great importance that the reports are handled in a strictly confidential and trustworthy manner. In Naviair, occurrence reports generated within the reporting system are received by the watch supervisor on duty and are placed in a locked compartment to which only the safety investigators have access. Thus, the name of the person submitting the report will be known only to the incident investigators, and cannot be disclosed to others except under explicitly defined circumstances. The only conditions under which the incident investigators will reveal the name of a reporter to management are:
- Proficiency issues (i.e., when action is required due to evidence of diminished competence)
- Gross negligence (i.e., when described actions involve direct repudiation of duties)
- Substance abuse (i.e., alcohol or drugs).
It is natural that air traffic controllers and other aviation professionals, like everybody else in society, may not be expected to involve themselves in reporting if they risk punishment. This reluctance to incriminate oneself is part of human nature. It is therefore important for the quality of a flight safety reporting system that individuals, within certain well-defined limits, are granted immunity from sanctions.
The immunity cannot be, and is not, complete. It will always be necessary to punish individuals when they have been behaving in a grossly negligent way and, likewise, substance abuse cannot be tolerated. At the same time, experience from investigation shows that gross negligence and substance abuse are extremely rare factors in aviation incidents and accidents.
When a reporting system is non-punitive, this means that no criminal action and no disciplinary measures will be undertaken against the reporter on the basis of information contained in reports submitted. However, this does not mean that reports may always be submitted without consequences.
Experience has shown that action by the employer can sometimes be necessary in order to ensure safety (retraining, limitations in the amount of working positions, de-certification etc.). The important point, however, is that such consequences are never initiated with a penalising or disciplinary purpose. Rather, their purpose is to either ensure that the reporter is brought back to a level of competence required for his duties, or relieved of their duties in a dignified way accepted by himself and his colleagues.
Flight Safety Partnership
As a result of the investigations of the incoming reports, Naviair quickly realised that air traffic control cannot handle flight safety alone. Many potential hazardous situations between aircraft arise as a consequence of the interface between air traffic controllers and pilots (misuse of phraseology, different understanding of procedures, etc).
Naviair therefore decided to establish a Flight Safety Forum, and invited flight safety officers from all the major Danish airlines to participate in discussion and knowledge sharing of flight safety relevant information. There has been wide acceptance of this approach and meetings are held twice a year to address operational flight safety in Danish airspace. Furthermore, it was decided to share the information used in incident investigation.