The Regulatory Dilemma

There is a tension between the regulated (registrants) and those who present information for investigation (complainants) which is, at times, difficult to reconcile.

Being unable to please all of the people all of the time inevitably leads to a situation where so often the complainant or registrant feels aggrieved.

Government policy dictates that the public must be protected from professionals who misbehave or are so incompetent that they are unfit to practise.  Rules usually require that the Regulator has a very low threshold before a complaint is accepted for investigation.  Once accepted, it has to be investigated properly and thoroughly.

When this stage is reached the registrant’s world is turned upside down and often for a lengthy period life is on hold while the complaint is investigated.  Even worse where some sort of interim order is imposed restricting practice or suspending the registrant pending the outcome of the investigation.

The Regulator is neutral.  It has to investigate bearing in mind the duty of public protection, at the same time, ensuring that it is fair to the registrant and that the investigation is progressed in a timely and efficient manner.

Those statements trip off the tongue so easily but mask the manifold difficulties that Regulators face.  Challenged with thousands of complaints from the general public and elsewhere, the task of gathering evidence from recalcitrant witnesses, data protection hurdles or from other organisations who really don’t give a fig about the Regulator’s progression targets, investigations stall.

Investigators, who usually carry heavy caseloads and work under intense pressure,  leave the organisation for greener pastures. So a new investigator (probably one who is already overburdened with investigations) has to be assigned and get up to speed with another formidable file.

Who pays for all this?  Most of the funds usually come from the regulated professionals through annual contributions. So there is a limit to the resources and money available at any given time and investigation teams are always stretched.

During the last 20 years or so it has been my privilege to assist regulators in various capacities: sometimes presenting cases or  training, more often helping investigators progress difficult cases and clearing backlogs.  Most regulators face precisely the same problems.  It is a difficult and thankless task, but dedicated investigation teams carry out these tasks nonetheless.

Remember also that the regulators have to answer to their own super regulator.  The Professional Standards Authority for Health and Social Care, for example, regularly inspects health regulators and keeps a watchful eye on outcomes.  If it considers the public has not been protected adequately, it will intervene.

So I am more than a little dismayed when I see leading legal practitioners who spend most of their time defending registrants, publicly demanding explanations and castigating regulators for delays in rather less than temperate language.  Complaints about lack of apparent progress reveals little insight into what goes on behind the scenes, the inter-organisational bureaucracy that Regulators face to obtain information and the welter of telephone calls which take hours of an investigator’s time from those who have an interest in, and wish to influence, the investigation.

The pressure upon regulators cannot be over-emphasised.  The government requires the public to be protected whilst at the same time requiring a fair, open and relatively expeditious process. The complainant cries out for justice and wants a pretty immediate outcome; the registrant identifies a witch-hunt and unfair persecution.

Meanwhile, the desks of Chief Executives are littered with letters from Members of Parliament claiming cases have not been investigated properly/or their constituent is being hounded, or asking for cases to be re-opened or discontinued, each of which has to be passed down to investigation managers for a detailed response.

Regulators know they have a duty to regulate and to protect the public, to investigate as fairly, efficiently and expeditiously as the circumstances may permit.  The investigators they employ know this too and work passionately to achieve those ends.

Those with powerful voices who choose to indulge in public criticism would do well to examine the mote obscuring their own vision and remember that there is no such thing as a one-sided magnet.