My professional regulator is investigating me. Help!
In recent months, this firm has noticed a steep increase in enquiries from professionals facing regulatory investigation. This has spanned various professions including, but not limited to, medical, dental, academic and legal. The main reason for this appears to be that many regulators were running a skeleton service of sorts during (and beyond) the lockdowns. Whilst much trumpeted in some quarters, the restraints of home working have consistently been relied upon by regulators (and, indeed, other public services) as a reason for reduced operational capacity. The reopening of regulator's physical offices has led to a fresh appraisal of complaints. This has prompted a wave of new investigations. Secondly, with face-to-face contact having increased for professionals in recent months, greater human interaction has inevitably led to an increased likelihood of allegations of misconduct.
In this article, we look at some basic matters that should be considered by any professional facing regulatory investigation by focusing on six areas where mistakes are frequently made.
1. Carefully identify the complaint.
Firstly, identify the complaint. It is likely that you will instantly know who the patient/client/complaining party is. There may have already been an internal investigation into the matter, followed by a referral to your regulator. The report might have been triggered by a colleague or manager, not a patient/ client. You might even have reported yourself.
Provided you are permitted access in a proper and transparent way, you should try to gather all of your notes and records about the relevant events. Professionals tend to be diligent and focused people. We do not spend years passing exams and undergoing training in order to act with negligence or abandon. The likelihood is you made a decision, or a series of decisions, whilst facing an unusual scenario. This might have occurred under the exceptional circumstances dictated by Covid-19. So, take time to put together your own factual record of what happened, the decisions you made, when you made them, and why.
Also, don't assume the scope of your regulator's investigation is as wide as the scope of the original complaint. It might well be more limited. Read the correspondence carefully, so that you know what exactly you are being asked about.
2. Be honest with yourself about any mistakes made, or lessons learned.
It might already have been established, or admitted, that certain errors were made. Alternatively, you might be denying any wrongdoing whatsoever. Either way, you should reflect honestly. Do not be tempted to become ‘creative’ in your account of events. It may be there were honest mistakes made, and genuine reasons for them. Do not, under any circumstances, consider fabricating your correspondence or records. Very often in professional misconduct, a fairly understandable error or omission is made far worse by an attempt to falsely deny responsibility, or embellish the explanation. For example, the solicitor who creates a back-dated letter after missing his deadline, or the doctor who belatedly inserts notes to combat her patient’s complaint. When any such documents are falsely presented as being contemporaneous, this is dishonest. If discovered, the regulator will invariably prosecute this as professional misconduct in itself, regardless of the original issue. Manipulating your records can turn something which might have been a one-off complaint or a minor error into a career-ending matter. In addition, most modern computer or data systems retain a detailed electronic trail showing precisely who accessed which file, and precisely when. In this way, all too often the ‘cover-up’ proves to be worse than the actual 'crime'.
3. Recognise that personal conduct away from work can also impair fitness to practise.
You might be surprised that your professional regulator is suddenly taking an interest in your personal life. There are more and more instances of personal conduct in one’s relationships, including allegations of a sexual nature or even harassment, moving into the sphere of professional misconduct and fitness to practise. It might be that the police have already investigated the allegation in question, and brought no charges. It might be the police never received any report from the complainant, who went straight to your professional regulator. In almost all cases, these scenarios do not stop your regulator from investigating what happened (a decision by the police not to take action, or even an acquittal, is not an exoneration). Be prepared to cooperate with honesty and candour. Again, resist the temptation to falsely downplay the incident or mislead your regulator. Most professionals do not tend to have irresponsible personal habits, but problems such as alcoholism and even drug abuse clearly persist among some. If certain personal problems have arisen, it is always better to honestly face up to them, seeking either guidance or help. Conversely, being in denial about such problems causes difficulty in professional misconduct. This is because denial can so easily ‘morph’ into dishonesty, or at least it can appear that way to the regulator. Also, being in denial about one's problems can be indicative of a lack of insight and therefore the perception of impairment may be ongoing.
4. Obtain competent legal advice as soon as possible
Professionals tend to be educated and articulate people who feel more than capable of liaising directly with their regulator. It may also seem more cost-effective to navigate the early stages of an investigation without a lawyer, particularly whilst suspended from work or concerned about losing employment. However, professional misconduct and fitness to practise are specific concepts of law, with each regulator having bespoke procedures. All investigators and case examiners will have received specific training. Each regulator’s legal department will be packed full of experience in that field. When investigators pose questions as part of their enquiry, they often ask not only for the factual account, but also whether the professional agrees that they have breached the relevant rules or principles. To answer this question, in a binding way, requires both knowledge and experience within the field. Experience at the coalface is simply not the same as regulatory experience in dealing with the fallout. Therefore, to put one’s account forward before taking legal advice can often lead to:
- Inadvertently making more admissions than were necessary at that stage, or
- Putting on record a more detailed factual account than was necessary at that stage.
Always make sure you take all legal advice available to you as soon as possible, bearing in mind any response deadline. If you are concerned about cost and are worried about your ability to fund an investigation or proceedings until their conclusion, it is normally far better that you get some legal advice at the outset rather than later on.
5. Take the time that you need to respond properly
The initial approach from your professional regulator will usually require your reply within a short deadline, typically between 14 and 28 days. However, responding properly with legal advice and access to the relevant documents will often require more time. Be open about this with your regulator. Do not be reluctant to ask for more time, but explain precisely why it is necessary. Typically, regulatory bodies apply much stricter timescales on their registrants than on themselves. At least one extension of time is often granted. The main point is to engage directly with the person contacting you, making it clear you are taking the matter seriously and working on a sensible response. You might even want your lawyer/ representative to make the application for more time. Rushing out a response drafted without advice simply to meet a standardised deadline is rarely wise.
6. Request the regulator takes relevant steps in its investigation
In situations where you deny, or minimise, responsibility for an allegation, you might want to ask the investigator to obtain certain records which might assist or corroborate your account of events. Any such request is specific to the facts of your case. It will be particularly relevant if you are saying another party was responsible and not yourself. It might also be relevant where the allegation is completely denied and you feel there is material evidence which could exonerate you, and that your regulator ought to obtain. Although you will feel like the one in your regulator's cross-hairs, it is easy to forget that their duty is to objectively investigate a complaint, and follow the evidence wherever it may lead. You should feel confident to direct them towards the truth. Ideally, you will instruct lawyers to take these steps on your behalf.
Importantly, you should continue to conduct yourself as a professional throughout. Receiving notification of an investigation can feel like the end of the world, but it really isn't. You have not become a bad person, or unfit to do your job, overnight. Whatever has taken place, your conduct might be viewed more sympathetically than you fear.
If you need any assistance or advice in dealing with a professional regulatory investigation please click here or telephone us on 020 7183 8950 to speak with one of our specialist regulatory solicitors.
Articles are intended as an introduction to the topic and do not constitute legal advice.