BEYOND THE BASICS

Advancing practices in regulatory investigations

Dean Benard, President and CEO Benard + Associates

In recent years, the landscape of professional regulatory investigations has experienced profound changes. Factors such as increased complexity, higher caseloads, heightened resistance to cooperation, and evolving expectations from involved parties have collectively intensified the challenges faced by regulatory bodies and their investigators. Consequently, navigating this increasingly demanding environment requires the adoption of new strategies and approaches. Central to this adaptation is a steadfast commitment to rigorously adhering to updated best practices.

So, with all this in mind, what are the ingredients to a good investigation? First, I want to take a closer look at the challenges, then I’ll get into the solutions, and answer this question.

Increased complexity

The complexity of cases in professional regulatory investigations has escalated, fueled by a variety of factors including complaints involving aged issues, where faded memories are more common, or information is harder to obtain, such as unavailable documents, or witnesses that must be located. Greater prevalence of multifaceted matters including, crossover of conduct and practice related concerns, interdisciplinary issues involving members of multiple professions, the continuous evolution of professionals’ scope of practice, and parallel criminal or employment investigations all increase the challenges posed to investigators. These complexities demand that investigators possess specialized knowledge and skills to decipher and address the multifaceted issues they face, resulting in each case taking more effort and more time to complete.

Higher caseloads

Alongside increasing complexity is a noticeable increase in the volume of cases needing attention. This surge can be attributed to greater public awareness of regulatory complaints processes, and heightened expectations of accountability in professional practices. The growing number of cases places additional pressure on investigative teams to manage their resources efficiently and prioritize cases effectively to maintain the integrity and timeliness of investigations.

Heightened resistance to cooperation

In today’s digital age, while obtaining information has become more accessible in some ways, it has also introduced new challenges. Privacy concerns, cybersecurity risks, and the sheer volume of data can impede timely access to necessary information. Additionally, regula- tory investigators often face legal and procedural hurdles that can delay or restrict access to critical data needed for thorough investigations. Investigators are increasingly confronted with various forms of non-compliance that require a deeper understanding of technical and legal nuances. In contrast they also face the uninformed refusals to comply based on misunderstandings of professionals’ governing legislation and privacy legislation. Again, this necessitates additional efforts to overcome opposition such as more frequent and deeper use of formal powers of investigation. Where these powers don’t exist or where they fail, means the investigator will need to find creative ways around the issue or sometimes proceed without some information.

What makes a good investigation?

The first consideration here should be to define what constitutes a “good investigation.” Presumably most people would agree on the following characteristics of a good investigation:

• Clear procedures that ensure consistency, fairness, and neutrality

• Open communication that explains process and addresses questions

• Thorough evidence collection

• Adherence to legal and ethical standards

Privacy concerns, cybersecurity risks, and the sheer volume of data can impede timely access to necessary information.

• Well documented investigation file and a clear and neutral report

• Trauma / human informed processes applied throughout the process

• Completed in a timely and efficient manner

All the above will not be achieved by simply following a process. There are many nuances to this work that require an ability to apply a wide range of skills, and knowledge, sometimes at a moment’s notice. Add to this the range of challenges outlined above, and the common collective answer is to say, “We need to apply best practices.” But what are best practices, and who decides on that?

Understanding the role of the investigator

It is essential for investigators to clearly understand their role within the regulatory framework. This understanding helps prevent overstepping boundaries and ensures that investigations are conducted impartially and professionally. One area where investigators can easily overstep is when they offer opinions or conclusions related to the information they gather. With few exceptions, regulatory investigators are fact finders, not decision makers. The concept of credibility assessment is a good example of this. Regulatory investigators can and should assess credibility for the limited use of determining other investigative steps. The idea that the investigator should comment on credibility even in the classic “he said she said” scenario, is incorrect. Under a regulatory mandate the only place credibility assessment should be happening as a determinant of a case is in a hearing. Pointing out conflicting information is fine, but determining what information should be given more weight, is not the job of the investigator in a regulatory investigation. Investigators must stay in their lane.

Carefully plan investigations

Effective planning has become more essential than ever. This involves setting clear objectives, defining the scope of the investigation, and allocating resources strategically. Planning helps investigators manage large volumes of cases and complex issues more efficiently, ensuring that each step of the investigation is targeted and effective. The plan is a living document that investigators should add and subtract from as the case progresses.

Paying attention to details

One of the biggest flaws in any investigation is the failure of an investigator to peel back the layers of the onion. Investigators ask questions and each answer will typically lead to more questions. When investigators avoid the follow up questions or fail to go deep enough, they miss the full story. Here is an example:

• Witness: “He always cuts corners.”

• Investigator: “What do you mean when you say cuts corners?”

• Witness: “You know, he doesn’t follow protocol.”

• Investigator: “What parts of the protocol does he not follow?”

• Witness: “He’s lazy.”

• Investigator: “Can you explain what you mean when you say he’s lazy?”

• Witness: “Well, he doesn’t do things properly.”

• Investigator: “Right, yes, you said he cuts corners. Can you help me understand the specific things he does that lead you to believe that?”

….and it goes on

This is simplistic example, but in cases involving sexual or physical abuse by a healthcare provider or a serious fraud allegation against a financial advisor, the level of detail is critical to getting ALL the information required. I have seen sexual abuse investigations where the information gathered does not even include a clear statement by anyone on what specifically happened.

Overlooking or misinterpreting even a small piece of evidence can lead to insufficient information for the decision maker to draw correct conclusions. Meticulousness ensures accuracy and comprehensiveness in gathering and analyzing evidence is critical.

Understanding and implementing powers of investigation

Investigators must have a thorough understanding of their legal powers and the ethical implications of their investigative practices. This knowledge ensures that investigations are conducted within legal boundaries and that the rights of all parties are respected.

Using trauma-informed approaches

Adopting trauma-informed approaches enhances the investigation process and can help the emotional and psychological states of those involved. This approach not only facilitates more effective communication but also enhances the reliability of the information gathered. Trauma has an impact on memory, emotional responses, a sense of safety and security, and trust in the process and the investigator. In addition, the lived experiences of many marginalized groups lead to many of these impacts.

We must earn their trust by applying an approach that includes empathy, and avoidance of re-traumatizing and re-victimizing those we deal with. Even when the investigation is thought to have been thorough and complete, the feelings of those involved will typically overshadow the outcome.

Pointing out conflicting information is fine, but determining what information should be given more weight, is not the job of the investigator in a regulatory investigation. Investigators must stay in their lane.