Ethics in policy: how can public servants call out the ethical aspects of the issue at hand?

Kym Peake is secretary of the Victorian Department of Health and Human Services. She previously held senior executive roles in the Victorian Department of Premier and Cabinet, Department of Education and Early Childhood Development, and the Department of Prime Minister and Cabinet. This article is the text of a speech she gave, edited only for clarity by The Mandarin. 

At its most basic, behaving ethically in the public service should be simple. We must always strive to promote outcomes that are good for society. But in practice it is, of course, far more complex.

For example, in a pluralist, democratic society there is rarely consensus about what constitutes ‘the good life’, and we operate in an environment of limited resources, requiring choices about ‘who gets what, and who pays’.

Victoria has not codified ethical principles into a practical framework to guide these daily judgments about how public servants contribute to a better society. But we have evolved a discernible practice of ethical reasoning — a practice highly influenced by prevailing cultures, traditions, historical resource allocation and leadership attitudes within government departments.

I have worked in five government departments, and in my present role as the secretary of the Victorian Department of Health and Human Services there is a strong focus on tackling social determinants of health and wellbeing, including spending the marginal dollar on people who face the most barriers to a good life — whereas at the Victorian Department of Education, the marginal dollar is most likely to be spent on actions that will achieve outcomes for as many people as possible.

As you can imagine, this can lead to interesting tensions and debates across government, although it is by no means a bad thing to test the use of public authority and resources against different ethical positions. But it does mean that leaders play a critical role in fostering an ethical environment and culture, and that any study of the ethical reasoning behind advice provided by the public service is more accurately a descriptive study than a normative one.

With apologies to Aristotle, who said that we study ethics to help us discover what it means to have “a life well-lived”, I’m going to use this speech to explore ethical practice in public policy making, or what it means to try to “help others to have a life well-lived”.

Any unreconstructed libertarians in the room might be appalled by the implications of my purpose. By positioning this speech as being about how best to help others, I have already asserted that there is a role for an intervening state. Those same people might take that as evidence that public servants are acculturated to uncritically nurture Hobbes’ leviathan, but I’d ask you to persevere with me for a little longer. Call it a social contract, if you like.

This article I will explore the ethical challenges of public policy through an examination of the current Victorian government’s response to the Royal Commission into Family Violence. First I’ll examine professional ethics in the public service, then I’ll look at the ethical challenges posed by government’s recent response to family violence. Finally, I will make some remarks about the way forward in terms of strengthening the culture of ethical decision making in the public service.

So first, let me talk briefly about the role of the public service and why ethics matter.

In a job like mine, where every day we are making decisions or providing advice about the use of public authority and resources that can have an enormous impact on the lives of individuals, families and whole communities, it’s pretty clear that ethics are important.

As public servants, it is critical that we offer frank and fearless advice and are able to transfer our loyalty and expertise from one elected government to the next, while being responsive to the government of the day.

The very nature of our role means that preserving a professional integrity and ethical compass is fundamental to being an effective public servant. Furthermore, we know from various surveys that people’s societal and economic concerns, including globalisation, the pace of innovation, and eroding social values are turning into fears, spurring the rise of populist actions we see playing out around the world.

This makes the issue of ethical public leadership all the more important and throws down the challenge for the public sector to put people, and addressing their fears, at the centre of all we do.

At DHHS, we aspire for all Victorians to be healthy, safe and able to lead a life they value.  That’s because my department understands that:

• Fundamentally, most people desire a good, fulfilling life where they have a place to live, a job and positive relationships; and
• Our purpose is to help them get there, especially those who have more barriers to overcome than others.

While this purpose acts as an anchor for the ethical judgments we make, our advice to government on allocation of resources and policy choices inevitably occurs in the context of a series of often competing interests. For example, we are often faced with questions of:

• How to balance the autonomy of individuals against the best outcome for communities;
• How to distribute resources in a constrained environment; and
• How to weigh up democratic acceptability on highly contested issues.

Let me give you a few examples about how these competing interests have played out recently at DHHS.

Firstly, in terms of weighing the autonomy and rights of individuals against getting the best outcomes for our community, governments of all persuasions have a responsibility to make decisions that balance the best possible community health outcomes with individual choices. Preventing problems before they occur is vital to good health.

A good example of this is immunisation and, in particular, the ‘no jab, no play’ law, which was introduced last year to increase immunisation rates in the community, particularly among young children. As you know, immunisation not only protects those people who have been vaccinated, but also those in our community who may be unable to receive vaccines themselves, by reducing the prevalence and spread of disease.

So, in short, ‘no jab, no play’ prioritises the needs of the community over the autonomy and rights of the individual. Our focus must be on achieving the best possible health outcomes, which is why we are striving to reach herd immunity, where 95% of the population are vaccinated and together protect those most vulnerable in our communities from serious and at life threatening diseases.

Every government is required to make tough decisions about how to distribute limited resources.

With more than 30,000 people on waiting lists for public housing, and a 59% increase in people sleeping rough when they first seek homelessness assistance, how do we prioritise who accesses the available supply of housing? How do we decide between people sleeping rough, job seekers who cannot afford market rents, women with young children fleeing family violence, or people whose ability to sustain housing without support is affected by chronic mental illness?

The third example I want to give concerns the political imperatives around democratic acceptability.

For example, still on housing and homelessness, the recent Royal Commission into Family Violence recommended perpetrators, rather than victim survivors, should leave the family home, especially where there are children involved. But how do you then house perpetrators if they do not have sufficient means to house themselves?  Should they receive access to social housing before the other groups I mentioned?

I suspect many people would feel instinctively more comfortable with us acting on the Royal Commission’s recommendation. However, they may not be as comfortable with the logical outcome of this decision — providing perpetrators with access to stable housing (competing with the other groups I have mentioned). For example, at one of our specialist homelessness providers, 40% of their clients are perpetrators of family violence.

How do we apply professional ethics in health and human services?

In the face of the challenges and competing priorities I have outlined, it would be nice to think we could ignore politics and just be “evidence-based” in design and delivery. There’s no doubt that evidence plays an invaluable role in narrowing the number of options under consideration, but the reason our political system is a blend of politics and policy is because evidence is often not enough.

Available evidence often isn’t robust enough to be relied on entirely — for example there is limited evidence available on what works to change patterns of use of violence. And even where evidence is stronger, resources are not endless, meaning priorities and trade-offs have to be settled.

Irrespective of evidence, there is often a plurality of views about how best to respond to the very complex issues our community faces. The current debate in parliament about voluntary assisted dying and the inquiry into the approach to renewing public housing estates to create mixed communities are just two examples where divergent views are passionately held.

So if the right approach is something that’s contested, how we develop policy options in our advice to government is key to ethical decision making.

As a matter of practice, rather than adherence to an articulated ethical decision making framework, in DHHS we tend to default to four principles that consciously or unconsciously guide our reasoning:

• The first principle is inclusion — ensuring that our analysis not only considers the impact on the majority or the powerful, but also minority groups and those who aren’t represented by sectional interests. And beyond this, it means solving problems with the Victorians we serve, rather than for them. We are increasingly moving from a traditional welfare and treatment approach to capability building, shared decision making and self-determination.
• Second is transparency on impact — defining what we intend to achieve for Victorians with clarity of intended impact. Increasingly, it’s about designing programs and services on an outcomes-based approach to allow us and our service partners to deliver more flexibly and more effectively.
• Thirdly, there needs to be transparency on consequence — good intentions are not enough. We also need to have confidence that the intention will be achieved. That means being more evidence-based, more sophisticated and persistent in monitoring our progress, and more responsive and agile in adjusting the design of our systems and their settings to lift performance and respond to emerging and predicted challenges.
• The final principle is fidelity to our mission and purpose. As public institutions our mandate or mission can also be a source of overarching guidance, to reflect the public institutional intent in how we make decisions. In the DHHS context, a guiding purpose, in terms of helping the most disadvantaged and reducing inequality, can help us weigh up the potential impacts in terms of determining the preferred approach.

Reducing inequality

Let me now explore that last principle in greater depth, in the context of DHHS.

Distributive ethics is at the heart of what it means to be ethical in public sector decision making in health and human services. And a guiding ethical principle for our staff is the reduction of inequality.

As legal guardian of some of the state’s most deeply disadvantaged children and young people, it’s depressing to see just how much the circumstances of people’s birth still powerfully influences the conditions of their life — and it’s hard to think of more unfair distribution of outcomes than that.

So we still have a lot of work to do to break that nexus. But ‘the road to hell is paved with good intentions’ — and so even if we accept that there is a legitimate role for government to act in ways that reduce social inequalities, we would still be left with a fierce debate about how to achieve that.

In the health and human services area we often see some of the most directly interventionist tendencies of government come to the fore, but I think those are the exceptions. In a broader sense we are seeing a shift towards a philosophy that mirrors the ‘capability approach’ of Amartya Sen.

Sen’s focus is on the moral significance of an individual’s subjective capacity to create a life “that they have reason to value”, rather than the achievement of objective metrics, which are the stuff of utilitarians. He agrees with Rawls that a just society relies upon just institutions, but contends that this is not enough to secure social outcomes.

Sen is interested in the extent to which people can achieve wellbeing as a result of their own capabilities. It’s an acknowledgement that nominal opportunity is not enough. There are many forces — social, economic, political, cultural and environmental — that can constrain people’s capacity to make meaningful choices. In other words, poverty and disadvantage are complicated.

A 2013 study conducted by Eldar Shafir, published in the journal Science, presented evidence that being poor has a debilitating impact on decision making capabilities — akin to losing 13 IQ points. Obviously living in poverty is difficult, forcing people to make very tough choices, but it is more than that. When you live week to week the idea the saving up for long term needs isn’t a question of discipline or the desire to better your circumstances, it can simply be impossible.

Sen invites us to look deeper at what holds people back and to value the things that help them make meaningful decisions, not just the things that are easy to count and measure in annual reports.

In terms of the child protection system, building family capability is at the heart of how we are reshaping the way we think about protecting children, so they can thrive with their families, rather than be protected from them. Obviously, this isn’t easy. Recognising the problem is important, but finding a new way of working through these issues ethically is profoundly challenging. And just as challenging is confronting the reality that past decisions about resource allocation and policy implementation have failed to shift the dial for many families and communities.

Addressing family violence

Let me now turn to the ethical challenges of family violence.

Whether you tend towards a deontological or consequential ethical perspective, the data on the prevalence and impact of family violence is compelling.

Last year alone, tens of thousands of Victorians were victims of violence in their homes. On average, each and every week, at least one woman is killed by a partner or former partner. Of those women who experience controlling, violent relationships, more than half have children in their care. And, in terms of family risk factors, exposure to family violence or abuse has the greatest impact on children’s academic performance.

These are disturbing figures — and what’s even more disturbing is we know these numbers have risen every year for last five years, and violence against women is under-reported.

As in many areas of public policy — this data has been known for a long time without triggering a substantial and sustained government response. So what was different in 2015 in Victoria?

I believe we saw the perfect convergence of political leadership and an issue that stirred the community — that shocked it to its core. Rosie and Luke Batty’s story was one that people connected with, and that connection built community empathy and an expectation that we needed to respond. This community resolve, combined with the leadership of key political leaders — in particular, the Victorian Premier and Minister for Prevention of Family Violence — and ultimately backed by cabinet and cross-party support of the parliament, has made the difference.

Our engagement with victim survivors and with broader community groups has crystallised a policy view that relationships ought to be safe, respectful, empowering and nurturing, not robbing people of their compassion, their ability to develop their own personal abilities, or the opportunity to make their own choices and pursue their own aspirations — and that the role of government in family violence is both to promote respectful relationships and gender equality as societal norms, and to offer protection and support where economic, emotional or physical abuse occurs.

What is significant here is that there is a clear articulation of what ought to be, what needs to change and how government can contribute, which has been helpful to narrowing the field of policy questions and options.

The Royal Commission into Family Violence was tasked with finding solutions to:

• preventing family and intimate partner violence;
• delivering better support for victim survivors; and
• making perpetrators accountable.

Government’s response has embedded the clear goals of ending family and intimate partner violence. Importantly, the approach to achieving this aim has been led by the views of victim survivors who have been involved in the design and implementation of new initiatives and service improvements, which have a strong focus on building individual capabilities deprived through the experience of family or intimate partner violence.

Going back to the types of competing interests I mentioned earlier, I will now touch on three aspects of our reforms that starkly illustrate the sorts of trade-offs that are thrown up in policy development and implementation.

Firstly, prevention of family violence brought with it challenges of democratic acceptability. The Respectful Relationships program in schools and early childhood education is a good example.

Evidence presented to the commission highlighted the importance of school-based prevention and educating children and young people about the importance of respectful relationships. This inevitably dealt with the issue of traditional gender roles and norms. This focus on gender roles struck a sensitive nerve with some people in our community, and a number of the issues were conflated with those coming up in the debate around Safe Schools, which have been playing out in our marriage equality debate.

In short, there was a collision between some people’s personal values and beliefs, and what evidence told us works in long term prevention of family violence. And, in my view, it was reassuring that government backed the evidence and recommendations of the commission, while also respectfully acknowledging the views of some others.

The second aspect of our reforms I want to talk about is how, in designing better support for victim-survivors, we have grappled with balancing the rights of individuals with getting best outcomes for the community.

During public hearings, it became clear to the commission that real or perceived barriers to sharing information about family violence — often shrouded in the notion of the right to privacy — contributed to it remaining hidden and placing women and children at continued risk.

Government is now legislating to reduce some of these barriers, including the ability for some professionals to share information about family violence without people’s consent. This is a controversial trade-off for some, but is an issue government has tackled based on an ethical assessment that a potential victim’s right to safety outweighs the right to privacy.

Making perpetrators accountable raised questions about appropriate distribution of resources in a constrained resource environment.

For example, how much should be committed to supporting the perpetrators of family violence? Do they deserve counselling support? As I mentioned earlier, should they be accommodated at public expense? Do they deserve an opportunity to reform? Indeed, if a dollar spent on a victim is one less dollar to spend on his victim, where do you draw the line, and what do you base this decision on?

Since the royal commission brought down its recommendations, the implicit principles of ethical reasoning I’ve outlined have been evident in how government agencies, including DHHS, have approached policy and program development.

Let me start with our focus on inclusion.

We know that dominant social and cultural norms around gender place women at primary risk of experiencing family violence — and that, statistically, the majority of perpetrators are men. Characteristics such as cultural background, socio-economic status, sexual orientation or visa status can all interact to compound risks, create overlapping forms of discrimination, and amplify service barriers.

We have worked hard to look beyond a person’s individual identities to focus on the points of intersection that their multiple identities create, so that we better understand how intersectionality alters the way family violence is experienced by individuals and how these factors can increase risk and barriers to disclosure and impede access to services.

The family violence reforms have been the most detailed and deliberate approach to designing for diversity and intersectionality I have seen. The design work has reflected the fact that Aboriginal women, for example, are 35 times more likely to be hospitalised by family violence; that women with a disability are twice as likely to experience family violence; and that people experience violence through a myriad of relationships.

The royal commission found that the family violence system was complex and fragmented, and, as a result, extremely hard for victim-survivors to navigate to find the help they needed. Putting the experiences of victim-survivors at the centre of design was therefore essential to ensuring an effective response to these issues.

New service hubs are being designed with an understanding of people’s experiences. They will provide a new way for family violence survivors, vulnerable children and families to access coordinated support from justice, health and social services. This is the kind of reform you get when people are at the heart of the process.

The other two guiding principles I referred to earlier — the attention paid to transparency of impact and consequence — are evident in the development of a whole of government outcomes framework and targets to help align and guide the activities of each government department, enabling monitoring of the collective impact of government actions over time.

The application of these principles to our policy work is also evident in the approach to implementation of new service responses.  We are not defaulting to a common government approach of ‘setting and forgetting’ contracts of service with an evaluation pencilled in for some time in the distant future.

Rather, we have adopted more adaptive management techniques, setting up near real time evaluation processes, and partnerships with funded agencies, so that we can collectively evolve the design of service interventions and how people flow between specialist family violence and allied health, justice and social services.

Finally, all the family violence reforms demonstrate strong fidelity to our mission of advancing our commitment to reducing inequality. In the family violence context, our mission manifested in two specific objectives:

• Applying a gender equality lens; and
• A recovery focus to build the capability of victim-survivors.

Recognising the correlation between gender and abuse is key to the primary prevention agenda. A recognition that we can only prevent violence before it occurs by focusing on settings where inequality and violent behaviour are shaped. So our aim is to build social structures, norms and practices that prevent, or reduce the risk of, violence.

Reducing gender inequality has underpinned our approach to prevention and response. And, in the family violence context, our commitment to reducing inequality has a strong focus on a recovery model.

Family violence is about power and control, and victim-survivors have often experienced substantial inequality and controlling behaviour in their intimate partner relationships, whether physical, emotional or financial. The recovery-based focus of the reform effort is about restoring power to victim-survivors and supporting them to rediscover and pursue the opportunities to lead a life they value.

We are only at the start of a ten year journey to implement the recommendations of the royal commission, but clarity of purpose, clear measures of success and processes that involve victim survivors and specialist services will help us to navigate the ethical judgments we will inevitably continue to face.

Ethical decision making

With a large part of the journey still to come, I would like to close by talking about how we might continue to strengthen ethical decision making within the public service and the role that our leaders will play.

I started with the proposition that the Victorian Public Service doesn’t operate within an articulated ethical reasoning framework, but is guided by a professional practice of providing frank and fearless advice, while remaining responsive to the government of the day. I’ve also outlined ethical practices that are key to ensuring ethical decision-making. But I do think we can do more to support our people to help them decide how they ought to advise and act in a range of situations.

In my view, we often suppress what we think ought to be because of the implicit assumptions we make about policy goals and the role of government, which frame our identification of strategic options. We often don’t call out the specific ethical aspects of the issue at hand, and we don’t give a lot of guidance to staff or middle managers about the sorts of questions that talk to ethical perspectives when we evaluate our policy or investment options.

While it is not possible to provide staff with a how to guide on making perfectly ethical decisions every time, I do think this is an area Victoria could think more about. And while ethical leadership will never reside in the CEO of an organisation alone, leadership does matter.

If we think about leadership as a process of social influence, where leaders steer members of a group towards a goal, we should focus on leaders’ traits and behaviours and on how individuals make decisions as good ethical role models. This includes their role as managers — how they contribute to the behaviour of others through guidance, clear communication and systems of rewards and disciplines.

In other words, how they contribute to building ethical cultures — recognising that public sector leaders will develop norms for judgment from conceptions of professional values and interests of key constituents.

The first element, being an intrinsically ethical person, can be tested in recruitment and performance monitoring. The second element, being an ethical manager capable of influencing others, comes with experience and deliberate development.

I think we could put more emphasis in our leadership development courses, management courses and integrity programs on working through real scenarios and discussing the principles to apply, and processes to follow, to give greater confidence in making ethical judgments. We could also embed more reflective practice and open discussion of ethical issues and unchallenged assumptions that affect our day to day work.

The implications of ethical practice also extend beyond these direct capabilities to how we build organisations that are best equipped to attend to the ethical processes in developing advice by:

• Ensuring there is an inclusive and representative understanding of the community informing our policy advice to government. This has implications for who and how we recruit to ensure we are as diverse as Victoria.
• Ensuring our advice is transparent on impact but also on consequence. This has implications for the analytical capabilities we need to build, the data systems we need to build and the approach to policy making we need to embed; and
• Ensuring we focus on reducing inequality. This has implications in my department for how we understand distribution of need, the drivers of inequality, and the policy levers at our disposal to most effectively build capability.

The more reflective and deliberate we are about when and how to apply different frameworks, but also how they must be moderated through the context in which you work, is central to advancing a more productive and inclusive society. In the words of my organisation, and totally ripped off from Amartya Sen: people have the capabilities to live a life they have reason to value.