Regulation in 2020
The core values of a modern, efficient regulator will encompass the promotion of the public interest and protection of the public, whilst at the same time requiring high standards of integrity and professionalism amongst its registrants. It will seek to minimise the costs of investigation and thereby ease the regulatory burden upon professionals and demonstrate that it fulfils most, if not all, of the following criteria:
At a time when government is looking to Regulators to minimise bureaucracy, simplify investigations and reduce the costs which inevitably fall upon their registrants, they are also expected to put the public interest and protection of the public at the forefront of their regulatory function. Regulators are so often faced, on the one hand, with a complainant demanding justice and, on the other, a registrant who feels oppressed and asserts that the complaint does not warrant investigation.
Additionally, the Regulators have to answer to their own overarching Regulator, whether it be the Professional Standards Authority for Health and Social Care, the Legal Services Board, the Financial Services Authority, some other overarching body or the relevant Ombudsman who may investigate whether they have complied with their own procedures.
Although, sadly, despite rigorous background checks before registration, every Regulator will have a very small number of professionals who turn out to be dishonest or commit some other offence or serious misconduct which brings disgrace upon their profession, the vast majority are honest people of integrity doing their best to provide an efficient professional service.
Education, Training and Qualification
Most complaints can be avoided if the Regulator requires a sound system of education, training and qualifying examination. Experience shows, however, that this initial training must be enhanced with continuing professional development. The better Regulators also require the saw to be sharpened with some form of continuing assessment or re-examination every few years. Where the regulated sector involves the inspection of premises as well as individuals, it follows that the inspectors themselves are properly trained and able to produce coherent reports which will withstand rigorous cross-examination when tested.
Best use of resources requires that cases are disposed of at the earliest possible opportunity consistent with the justice of the case. Paramount in any system of investigation is a robust triaging system to ensure the efficient use of resources and wasted expenditure on cases that do not fall within the Regulator’s function or, even if proved, would not attract a sanction. The triage team must be well-trained and headed by an experienced manager capable of overseeing well-drafted decisions capable of withstanding scrutiny.
The manager should also be able to filter those cases which may be referred for local resolution where such procedures exist.
Internal Decision Making
Most Regulators employ some form of preliminary decision-making function in the form of an Investigation Committee, Case Examiners or another type of internal adjudication. They are usually empowered to close investigations, administer warnings, sometimes impose conditions on registration, levy fines or send the case on to a tribunal for a full hearing.
Apart from the investigation itself, which may be unduly time consuming, the panel/tribunal hearing is the most expensive element of the procedure often involving the instruction of counsel or leading counsel and a lengthy trial. And after a trial, in some regulated areas the case may still end up in the High Court or Court of Appeal. In a perfect world, only those cases which are thought to be likely to result in strike off or which cannot be dealt with by an internal sanction should be sent for trial. Some Regulators have powers to reach an agreed outcome with the registrant, such as imposing conditions upon registration, which saves the trauma of a hearing for the registrant and vastly reduced costs.
Why might an investigation be unduly time consuming? Sometimes witnesses may be slow to come forward or provide witness statements and public bodies might be slow to release information or require a court order before doing so. So it is important where information is routinely sought from other public or quasi-public bodies, that mutually agreed Memoranda of Understanding are created to speed up the provision of evidence.
More often than not, it will come down to the efficiency of the individual investigation officer/case worker handling the case. The caseworker will usually hold a large number of cases at any one time and will need to balance competing priorities at any one time. So caseworkers, who will usually be graduates, will need a thorough understanding of the casework process and the employing Regulator’s particular rules and processes. All casework teams need some members with legal or paralegal backgrounds, but our experience has been that a balance of legally qualified caseworkers and those from other disciplines who are able to sift and analyse evidence work most effectively as teams.
A very real problem for Regulators is the stress their caseworkers feel balancing priorities and falling behind with their investigations. This inevitably results in lengthy periods of sickness absence when cases are handled by colleagues who themselves may be overstretched, or the case lying dormant because others are too busy to get up to speed.
Ultimately some caseworkers resign and their caseloads have to be reassigned leading to additional delay. This is compounded when cases are reassigned on several occasions leading to new caseworkers having to read and assimilate lengthy and complex files before the case can be progressed. A frequently heard complaint from caseworkers is that their case holdings are too great in themselves or, given their complexity should be reduced. In some organisations caseworkers are left to their own devices which inevitably leads to inefficient working practices. It is to be preferred therefore that Regulators require their caseworkers to follow their own procedures and that each caseworker has a copy of them.
Case Management System
These days most regulators have some form of computerised case management system. The system should be intuitive and readily interrogable, but some are not fit for purpose and add to the complexity of the investigation process. The best system I have come across is Siebel which has been used and refined over a number of years by the General Medical Council. Once established, a good case management system not only smooths the course of the handling of the investigation for the caseworker, but it also enables any level of management to dip-check an investigation to determine whether it is progressing in an efficient and timely manner
Crucial to the investigation process is an efficient system of line management. The more efficient the management, the more likely problems can be solved at an early stage and the less likely the case is to go off track. Team managers need to know and understand their caseworkers’ case holdings and manage to them one-to-one regularly and often. They should also monitor the welfare of their caseworkers and look out for signs of stress and the need for additional expertise where required.
The next tier of management will be monitoring the progress of the entire case holding, holding the team managers and caseworkers to account for the progress of cases and ensuring that cases are brought to a conclusion in a timely fashion.
Expert Casework Assistance
The better Regulators have also found it an advantage to employ, at least on an occasional basis, an expert in casework to advise caseworkers on the more difficult aspects of particular investigations which may have become stuck in the process. Such an expert is often able to get to the nub of a case very quickly, advise on the future course of the investigation and ensure that it moves along in a timely fashion.
Regulators have recourse either to an internal legal team or external provider or, with complex cases, perhaps a combination of each. They are usually tasked with preparing the case for hearing although sometimes an internal legal team will be available for advice on the course an investigation should take. The quality of internal legal teams varies, the best advice coming from those who undertake hearings themselves and thus have experience of the tribunal process.
Quality Review Group
An additional layer of assurance of the regulatory process is provided by those regulators who have established a Quality Review Group to review decisions taken at key points of an investigation and the final outcome in order to establish learning points. These groups usually consist of some members of the senior management team, senior lawyers and an external regulatory consultant or independent lawyer to give a completely neutral opinion on the process.
No matter how rigorous or efficient the investigation, a significant minority of complainants will be dissatisfied with the Regulator’s decision. Where the outcome has been determined by an independent tribunal, there is perhaps little more that can be done although in the health sector the Professional Standards Authority for Health & Social Care may, in a few cases, require a Regulator to appeal its own tribunal to the High Court. In other cases where the complainant is aggrieved because the Regulator has decided at some stage in the investigation to close the file without further action or dispose of the case with an internal sanction, there will need to be an effective complaints procedure handled by a competent complaints team.
In our experience, the preferred method is for the complaints team to undertake the initial work and, where the complaint appears to have some merit (for example, that there has been a procedural irregularity) to refer the case to a senior internal lawyer nominated for the purpose. The lawyer will make a reasoned recommendation to senior management that the case be reopened and progressed for a fresh determination or the decision be confirmed. Where it is advised that the case should be reopened, best practice requires the affected registrant to be given the opportunity to make representations before the decision is signed off. That decision maker should be completely independent of the investigation process.
It is advisable that Chief Executives, Presidents or Chairmen should remain above the investigation and appeal process. Aggrieved complainants frequently involve their Members of Parliament in the process and an MP’s letter then lands on the desk of the Chief Executive. It is better that those who lead the organisation are able to rise above the individual complaint and refer the aggrieved or MP to the independent review that is taking place.
Contested hearings should be determined by independently appointed tribunals with the benefit of either a legally qualified chair or legal assessor to advise the panel about the law. Usually panels consist of three members and rules require there to be at least one professional and one lay member, although public assurance is better served if there is a lay majority. Cases are required to be proved to the civil standard, that is to say, it is more likely than not that the registrant is guilty of the allegation. In practice, panels require cogent evidence before convicting a practitioner of an allegation.
The more arms-length the procedure, the greater the public are likely to have confidence in the system. The Solicitors Disciplinary Tribunal which determines cases involving allegations against solicitors, is completely independent from the Solicitors Regulation Authority who brings the cases, but it always sits with a professional majority. The Medical Practitioners Tribunal which hears cases against doctors and is funded by the General Medical Council, is chaired and overseen by a Judge and is otherwise completely independent. Panel hearings take place with a legally qualified chair or legal assessor. I consider it to be the best model among regulators but it has to be recognised that most regulators are too small to fund such an entity.
Government and Regulators know that the present system of investigation and determination of cases is cumbersome and expensive and seek ways to reduce the regulatory burden on professionals whilst at the same time protecting the public which must always be the paramount consideration. The twin objectives clash head on. In the meantime, the best way to modernise is to ensure a sound triage system to identify which, if any, issues should be investigated, the recruitment of competent and effectively managed and trained caseworkers/investigation officers, and an internal system of case disposal to determine all but the most serious cases without the need for a possibly protracted and expensive tribunal hearing.
If you would like to find out more about how RSR | Regulatory could help you or your organisation, please don’t hesitate to contact us today on 0203 119 3336, or email Michael at firstname.lastname@example.org.