An inspector calls: trauma-informed regulation

Abstract

This article examines some of the possible harmful effects of regulatory investigations, in particular that of trauma, on persons being investigated and those around them, the legal, ethical or regulatory duties or responsibilities of regulators in the case of such events, and programs currently available to prevent or ameliorate these effects. It concludes by describing what trauma-informed regulatory practice might look like and concludes that a trauma-informed approach to regulation can provide a model of justice that can be applied to persons adversely affected by investigations without derogating from a regulator’s statutory purposes.

Introduction

A phone call, a letter or an email is received notifying a person that a complaint has been made against them or that a regulator is investigating them or that their activities will be audited inspected or monitored. An inspector, an authorised officer or an investigator is scheduled to visit or arrives unannounced. Perhaps a brief interview takes place or is planned. For the complainant and the person complained against (the practitioner) or being investigated, or even a witness, the process is likely to be stressful. For a complainant who is required to justify their claims, they may feel disbelieved, overwhelmed, unheard or unsure of the process, which, if unsuccessful, may leave them bitter, disappointed and angry (Gunther, 2017, p. 37).¹

For a practitioner, the investigatory process, let alone any subsequent disciplinary action or prosecution, may have significant emotional, personal, financial and reputational consequences. The effect on practitioners can include shock, anger, terror, shame, anxiety, physical illness, depression and suicide, loss of professional identity, social isolation, reputational damage and financial loss, both as a result of an adverse finding (fine, damages or suspension) and through defending the allegations themselves (Gunther, 2017, pp. 37–38; Nash et al., 2004). Even if they are exonerated, there may be significant negative consequences arising from the publicity and the process itself. In the future, they may practice more defensively or leave their profession or occupation permanently (Gunther, 2017, pp. 37–39).

Similar effects may be may be evident in persons subject to coercive investigative processes conducted by integrity bodies such as anti-corruption commissions, which are invested with extensive powers. Their investigations

… can be long and emotionally demanding [and] can negatively impact on a person’s psychological wellbeing. Witnesses have reported experiencing anxiety and stress as well as feelings of shame, depression and suicidal thoughts associated with an investigation (Australian Psychological Society, cited in Parliament of Victoria, Integrity and Oversight Committee, 2022, p. 30).

Freckelton and others have argued that regulatory bodies² have not always paid enough attention to the effects that complaints, notifications, the investigatory process and disciplinary hearings have on a practitioner, nor to the ameliorative or supportive practices or programs that might be utilised to minimise the unintended adverse effects of regulatory investigations³ (Freckelton & Flynn, 2004; Freckelton & List, 2004). While regulators generally have an overarching duty to act to protect the public interest, the manner in which they do so legally, ethically or as a matter of good regulatory practice is the subject of debate.

To date, most studies of the adverse effects of regulatory investigations, and, in particular, of disciplinary hearings, have been in relation to health practitioners, though they are not the only regulated profession or occupation where investigations occur and where an investigatory process may have adverse personal or emotional effects (Freiberg, 2022). Legal practitioners, real estate professionals, teachers, architects, builders, engineers, plumbers, electricians, surveyors and many others can be the subject of an investigation and lose their licences, their reputation and their income and suffer stress and anxiety due to the investigatory process. Perhaps they are more robust than their health practitioner colleagues or have less to lose, but,whatever the reason, the regulatory literature appears to have ignored or overlooked both the harmful effects of regulatory investigations on other regulated professions or occupations and the means that might be available to prevent or ameliorate these effects.

A recent inquiry by Victorian Parliament’s Integrity and Oversight Committee’s on integrity agencies’ management of the welfare of witnesses⁴ and others involved in their investigations highlights the growing concern of governments regarding the effect of investigations on those affected by them, such as witnesses (Parliament of Victoria, Integrity and Oversight Committee, 2022).⁵ Similarly, a call from some members of the medical profession for a Royal Commission into the regulation of health practitioners, in particular to change the objectives of the National Registration and Accreditation Scheme to create a duty of care to registrants and to require the regulator to minimise the mental health and financial effects on health practitioners, reflects the disquiet felt by many health practitioners about the regulatory process.⁶

Investigations are problematic in many ways. Some of those investigated will be innocent; some who are found guilty may be punished by the process that might be disproportionate or unproductive, and if the investigative process is seen as capricious or unfair, some people may leave a profession or be deterred from entering it.

This article examines some of the possible harmful effects of regulatory investigations, in particular that of trauma, on persons being investigated and those around them, the legal or other duties or responsibilities of regulators in the case of such events, and programs currently available to prevent or ameliorate these effects. Drawing primarily from Victorian experience, it describes what trauma-informed regulatory practice might look like and concludes that a trauma-informed approach to regulation can provide a model of justice that can be applied to persons adversely affected by investigations without derogating from a regulator’s statutory purposes.

Trauma

The concept of trauma has a long history dating back to the late nineteenth and early twentieth centuries, particularly through conditions such as ‘shell shock’ and, later, in relation to disorders labelled as Post-traumatic Stress Disorder (James, 2020, p. 277).⁷ There is no generally accepted definition of trauma. One definition describes it as ‘an emotional response to a terrible event like an accident, rape or natural disaster’ often followed immediately by shock and denial, with unpredictable events in the long term, including emotions, flashbacks, strained relationships and even physical symptoms such as headaches and nausea’ (APA, 2019; James, 2020, p. 276; McLachlan, 2021). The United States Substance Abuse and Mental Health Services Administration (SAMHSA, 2014) describes trauma as a consequence of an event(s) or circumstances that has lasting, adverse physical or emotional effects on an individual’s wellbeing (McKenna & Holtfreter, 2021, p. 451). It can be the result of a single incident or event (post-traumatic stress disorder) or of a series of events, and it can be chronic, involving multiple events, or complex, involving a mix of events (Kezelman & Stavropoulos, 2016, p. 3; Randall & Haskell, 2013, p. 507). Often trauma will arise from continuing exposure to events such as abuse, violence or neglect from an early age, referred to as adverse childhood experiences.

Responses to trauma can manifest themselves in emotional distress, maladaptive coping mechanisms, mental health and behavioural problems and other symptoms described above (Kezelman & Stavropoulos, 2016, p. 3; McKenna & Holtfreter, 2021, p. 45; Randall & Haskell, 2013; SAMHSA, 2014).⁸ Such a response can be distinguished from ‘normal life stresses’ such as are experienced by many people in that the former is ‘so overwhelming that it diminishes a person’s capacities to cope, as it elicits intense feelings of fear, terror, helplessness, hopelessness, and despair often subjectively experienced as a threat to the person’s survival’ (Randall & Haskell, 2013, p. 507; see also James, 2020, p. 276).

Forensic or litigation stress or trauma

For anyone engaged with litigation, be they plaintiffs, complainants, defendants, witnesses, judicial officers and legal practitioners, the process can be a stressful experience (Kezelman & Stavropoulos, 2016, p. 14). Some years ago, the concept of ‘litigation stress’ or ‘forensic stress’ (Cohen & Vesper, 2001, p. 16) and the possibility of the existence of ‘litigation stress syndrome’ was identified, mostly arising from research into health care professionals who were sued for damages (Youngberg & Soto, 1990, p. 19). The legal process has sometimes been described as ‘traumatic’ (Freckelton & Flynn, 2004, p. 93; Lees-Haley, 1988; Marshall et al., 2004, p. 292; Strasburger, 1999); however, unlike the more common understanding of trauma as being the consequence of an event that involves actual or threatened violence or abuse, ‘litigation stress’ has been described as ‘consisting of negative physical and psychological reactions to being involved in legal action’.⁹ The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision in Axis IV (Psychosocial and Environmental Problems) mentions ‘litigation’ under the category of ‘problems related to interaction with the legal system/crime’, though the The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) does not use the same language.¹⁰

‘Litigation creates an environment that forces people into situations, responses, and roles that are unfamiliar and, at times, misunderstood’ (Cohen & Vesper, 2001, p. 16). Involvement in the legal/regulatory system can be stressful for a number of reasons: it can be unpredictable, particularly for those who have no experience with it; confusing to those who have little or no knowledge of the process; disempowering when others are making decisions about one’s fate; stigmatising and isolating from family, friends and colleagues; and can engender feelings of shame and guilt.¹¹ For professionals, but not only for them, reactions may include high levels of anxiety, feelings of anger, indignation and possible vindictiveness.¹² A complaint or investigation can be seen as an attack on the person’s skill and integrity (Youngberg & Soto, 1990, p. 19).

Physical responses to stress may include: headaches, sleep disturbance, chest pains and gastrointestinal symptoms, and pre-existing health problems may be exacerbated.¹³ Emotional symptoms may include: depression, suicide, relationship conflict and substance abuse.¹⁴ Social responses may include withdrawal from contact with colleagues, friends and family (Youngberg & Soto, 1990, p. 19). Professional responses may include an increased number of errors of judgment, defensive practice, risk-avoidance, admission of violations that have not occurred and undermining one’s own defence (Freckelton & Flynn, 2004, p. 93; Freckelton & List, 2004, p. 300; Gunther, 2017, p. 33).

There is evidence that other groups involved in legal processes, such as jurors, police and judicial officers, are also affected (Iversen & Robertson, 2021, p. 803). Leaving aside the issues of secondary or vicarious trauma, the question is whether the investigatory process itself can be regarded as a traumatic event requiring a sensitive or ‘trauma-informed approach’ based on an understanding of practitioners’ and others’ experience of the regulatory process.

Trauma-informed

The use of the term ‘trauma-informed’ is of relatively recent origin, dating from the early 2000s as a result of the growth of the victims’ rights movements of the 1970s and 1980s, the growing incidence of PTSD in Vietnam war veterans and recognition of the effect of adverse childhood experiences on a person’s health and well-being (McLachlan, 2021). It has been described as ‘a commitment to providing human services and the institutional contexts which recognize and understand the extent and impact of trauma in people’s lives…, and strive to provide programs and services which avoid retraumatizing people while supporting their movement towards resilience, recovery and wellness’ (Randall & Haskell, 2013, p. 517). The term ‘trauma-informed’ is now in general use, with many organisations, institutions, journals¹⁵ and publications devoted to the recognition of, research into and responses to, trauma (Becker-Blease, 2017). Trauma-informed approaches to care have now become well recognised and widely practiced in areas such as sexual assault, medical care, mental health services, victim support, health centres, child welfare, corrections, family law, Indigenous health care, personal injury law and others (Kezelman & Stavropoulos, 2016, p. 10). Courts are now becoming more trauma-informed,¹⁶ and the importance of understanding and appropriately responding to the welfare risks to persons involved in coercive investigative processes has been acknowledged by a number of integrity bodies (Parliament of Victoria, Integrity and Oversight Committee, 2022).

Some legal and regulatory responses to trauma

Most regulatory bodies are vested with a wide range of investigatory powers, such as those that allow them to monitor the activities of suspected non-compliers, to compel the production of documents, to enter premises and seize documents and to question suspected non-compliers. In carrying out their duties, regulators will be bound by their governing legislation, which may prescribe that they act in accordance with good regulatory practice,¹⁷ be efficient and effective, act as quickly as practicable, act in good faith, act with a reasonable degree of care, diligence and skill and adhere to the general principles of procedural justice with regard to such matters as due notice, adequate hearing, representation, the rules against bias, a right to reasons and rights of review or appeal (Freckelton & List, 2004, p. 297).

The principal purpose of any regulator is to ‘achieve the public interest goals of the regulatory regime that the regulator administers’ (Bird, 2011, p. 742) and often one of their duties is to protect the public, whether that duty is expressly stated in their legislation or implied. However, even when implemented lawfully, the exercise of investigatory authority can produce stress and anxiety in those being investigated, particularly if the process is lengthy and public. Although what may amount to ‘good regulatory practice’, as referred to in the health practitioner legislation, is unclear, this article argues that ‘good regulatory practice’ should involve recognising the potential traumatic effect of investigations on those being investigated, that there is a degree of choice as to how an investigation can be undertaken (Freckelton & List, 2004, p. 297), and that a trauma-informed approach should be adopted in regulatory investigations.

Before outlining what such an approach might involve, a brief overview of some current legal and regulatory responses to trauma, such as the civil law relating to negligence, workplace health and safety and other laws, as well as various codes of conduct or practice or charters, is provided.

Tort law

Regulators generally do not have a legal duty of care to the people they regulate to protect them from harm, be it psychological, reputational or financial.¹⁸ In a number of cases where there has been evidence of harm, such as shock, distress, psychiatric injury or financial loss, the courts have held that there was no duty of care, primarily on the grounds that the existence of such a duty in such circumstances would be inconsistent with the primary duty of the investigator, be they police, departmental officers or regulators, to protect the public.¹⁹

However, in determining whether a duty of care exists, the courts will generally consider a number of factors,²⁰ including the degree and nature of control exercised over the degree of harm that has eventuated and the extent of vulnerability of those who depend on the proper exercise of the relevant power.²¹ Although the vulnerability of a plaintiff has not generally been accepted as a useful criterion and is regarded as only one of many factors to be taken into consideration in determining whether a relationship exists between a statutory authority and a particular class of persons,²² its inclusion in the criteria to be considered recognises that in some circumstances it may be taken into account, possibly as a moral or ethical obligation,²³ as French CJ noted in Stuart v Kirkland-Veenstra [at 4].

In McColley v Commonwealth of Australia,²⁴ the ACT Court of Appeal alluded to some of the considerations – short of a duty of care – that a regulator might need to take into account in its investigations. In this case Mr McColley was in receipt of a pension under the Veterans’ Entitlement Act 1986 (Cth) for a psychiatric condition. Based on an anonymous tip-off, the Department of Veterans’ Affairs (DVA) commenced an investigation into his eligibility for the pension and informed him of that fact.²⁵ He was subsequently interviewed by the Department, but three months later he committed suicide while still under investigation. His wife brought an action for damages alleging negligence by the DVA in relation to the fraud investigation, arguing that there was a duty of care owed to the deceased, in particular taking into account his vulnerability to harm from DVA’s conduct and his reduced capacity to protect his own interests. It was claimed that the DVA had a duty to carry out the investigation in a non-negligent manner.

The judge at first instance held, in accordance with previous authority, and analogous to the cases relating to police investigations, that to hold that there was a duty on a regulator in such circumstances would be incompatible with their duty to investigate and struck out the statement of claim.²⁶

On an application for leave appeal by the plaintiff, the Court of Appeal,²⁷ after reviewing the various immunity cases discussed above, and others, granted the application and the appeal setting aside the strike-out order on the basis that it was open to the trial judge to find that the DVA owed a duty of care to Mr McColley ‘to avoid foreseeable injury associated with the decision to investigate and the manner in which the investigation was conducted’ [34]. While noting the strength of the previous cases upholding investigators’ immunity, it argued that inconsistency is a matter of degree [42], and the immunity policy must be considered ‘in the round’, that is, taking into account a number of salient factors, such as those identified by Allsop P in Caltex,²⁸ which the trial judge had failed to do. The Court noted that ‘there was no analysis of the extent to which the proposed duty of care could operate without unduly hampering or interfering with a DVA investigation’ [p. 50] and that the trial judge did not have the benefit of the DVA’s Service Charter and Fact Sheet, which, the court observed, ‘were not empty aspirational statements, but an acknowledgement by the DVA that a duty to investigate a veteran could sit alongside an obligation to conduct the investigation in a timely and sensitive manner’ (p. 51). Though reaffirming that the DVA’s duty was to ensure that public funds are properly expended, the court stated that

… in the context of the statutory pension scheme that is designed to protect the welfare of veterans, many of whom may be vulnerable, another relevant and competing feature may be the need to conduct investigations in a sensitive and expeditious manner in accordance with the DVA’s ‘Service Charter’ and ‘DVA Factsheet IP02’ (emphasis added; p. 52).

In relation to regulatory investigations, the Court stated that in relation to

… non-police investigations, considerations analogous to those applying to police investigations may apply to a greater or lesser extent. However, the trial judge erred in concluding that the policy considerations underpinning the police ‘immunity’ dictate that there can be no duty of care owed to a suspect in a non-police investigation. … (p. 58).²⁹

McColley’s case is illuminating for its observation, albeit not a direction, that a duty to conduct an investigation in a timely³⁰ and sensitive manner can sit alongside a duty to protect the community.

Workplace health and safety and other laws

Anti-corruption commissions, such as the Independent Broad-based Anti-corruption Commission in Victoria (IBAC), the Independent Commission Against Corruption (ICAC) in New South Wales, the Crime and Corruption Commission (CCC) in Queensland and others have extensive powers of investigation, including powers to search and seize property and conduct examinations, all of which can be highly stressful to those being investigated and others connected with them. The Victorian Parliament’s Integrity and Oversight Committee identified a number of legal provisions relevant to the investigatory work of IBAC, the Office of the Victorian Information Commissioner, the Victorian Inspectorate and the Victorian Ombudsman.

Both ICAC and IBAC recognise that under their relevant work health and safety legislation they are under a duty to ensure that, so far as is reasonably practicable, the health³¹ and safety of workers or other persons are not put at risk from work carried out as part of the conduct of their undertaking.³² Other persons includes a witness or other person involved in an investigation. This duty is subject to the condition that it not prejudice an investigation (ICAC, 2022a, p. 6).

In Victoria, workplace health and safety laws require that persons conducting a business or undertaking recognise and respond to the risk of psychosocial hazards in the workplace³³ and require them to develop risk management processes to identify and manage psychosocial hazards, develop prevention plans and collect and report on psychosocial incidents to the workplace health and safety regulator.³⁴

Other Acts that have some relevance to regulatory agencies’ management of witness welfare in Victoria include the Public Administration Act 2004 (Vic), ss 7(1)(b)(ii) (powers to be used responsibly) and the Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38(1) (rights to protect people from degrading treatment to privacy and reputation), while some specific to integrity agencies include the Ombudsman Act 1973 (Vic), s 17(2) (investigations to be conducted in private); s 18P (person attending a voluntary or compulsory appearance can request a person accompany them); s 26C (confidentiality notices if disclosure of certain restricted information would likely prejudice the safety or reputation of a person).

Codes of conduct or practice, principles, standards and charters

Generic regulatory codes tend to focus on compliance and enforcement principles and practices but rarely, if ever, mention the effect of investigations on affected parties.

The Australian Government Investigations Standards (2011), which apply to all Australian government agencies conducting investigations, state that such agencies must conduct investigations in accord with Australian Public Service Values and the APS Code of Conduct, but these appear to be focused on the management of complaints concerning the conduct of investigation rather than the nature of the investigatory process itself (2011, p. 3). Its section on investigation practices deals with a number of procedural and formal matters but makes no reference to witness health or welfare.

The ACT Court of Appeal in McColley’s case referred to the DVA’s Service Charter and a DVA Factsheet IP02,³⁵ observing that they committed the Department to conduct investigations in a ‘sensitive and expeditious manner’ (p. 52). Service charters or codes vary in the degree to which they are legally binding on those who are subject to them, but generally it is not the case that failure to meet the terms of a service charter will give rise to a cause of action by a client.

The current DVA Service Charter commits the Department to be, among other things, courteous, considerate and respectful, to be fair and ethical, to resolve any concerns, problems, enquiries and complaints quickly and keep the person fully informed of their rights and entitlements. In relation to the Department’s interactions with individuals, they state that the person has a right to fair and unbiased decision-making, to be treated with courtesy consideration and respect and to be given a clear explanation of the reasons for decisions (DVA, 2021).

The Victorian Ombudsman has a policy relating supporting the well-being of complainants and witnesses, which addresses issues such a guidance for staff, mental health training, communication styles, responding to threats of suicide or self-harm, welfare risk assessment, support, monitoring and referral to welfare services (Victorian Ombudsman, 2022). The various policies deal primarily with issues relating to complaints rather than people as the subject of an investigation. Victoria’s IBAC also has detailed policies in relation to its interactions with, among others, ‘persons of interest’ – namely, persons under investigation recognising that those subject to its extensive powers may suffer emotional turmoil [IBAC Welfare Management for IBAC Investigations Policy 2019; Guideline (IBAC, 2020)].

The Victorian Equal Opportunity and Human Rights Commission, which engages with people involved in court, tribunal, inquiry and investigative and related purposes as well as conducting reviews, investigations and dispute resolution across some of its statutory functions, provides an example of a trauma-informed approach. Specifically referencing trauma, it states that in order to mitigate the risk of causing further trauma through its processes, its conciliators follow the principles of trauma-informed service: safety, trustworthiness, choice, collaboration and empowerment (Victorian Equal Opportunity and Human Rights Commission, 2022, pp. 2 & 4).

A number of regulators’ charters or guides will refer to commitments to treat a person with ‘courtesy and respect’ to act lawfully, honestly and ethically, to use their powers ‘fairly and professionally’,³⁶ and many will state their commitment to procedural justice and general regulatory principles such as accountability, transparency, confidentiality, timeliness, proportionality and fairness.³⁷

Trauma-informed regulation

As noted above, regulators do not have a duty of care towards regulatees (Freiberg, 2022), nor is it argued that therapeutic and trauma-informed practices should undermine fundamental principles of justice. However, it is suggested that recognising the existence, or risk of, stress or trauma in practitioners and others involved in the regulatory process is the first step towards trauma-informed approach to regulation that takes account of the welfare of all those involved in regulatory investigations.

Trauma-informed approaches to regulation may be regarded as a form of therapeutic jurisprudence³⁸ in that they seek to treat all parties humanely and respectfully, while also avoiding re-traumatisation because of interactions with the justice system (McLachlan, 2021). Trauma-informed approaches are linked to therapeutic justice principles in that they rely on the principles of voice, validation, dignity and respect (McKenna & Holtfreter, 2021, p. 453). McLachlan writes that (2021, para 1):

While therapeutic jurisprudence (TJ) emerged from legal scholarship and ‘trauma-informed practice’ grew from the work of health and social science practitioners, both concepts support the fundamental idea (however conceptualised) that law is a ‘social force’ which should avoid practices that result in trauma or anti-therapeutic impacts. Fundamentally, TJ aims to enhance mental health and emotional wellbeing through legal processes and outcomes.

The basic principles of trauma-informed care are: safety,³⁹ trustworthiness and transparency,⁴⁰ choice,⁴¹ collaboration⁴² and empowerment⁴³ (Kezelman & Stavrolpoulos, 2016; McKenna and Holtfreter, 2021, p. 452; McLachlan, 2021, para. 5.1). The goal of a trauma-informed approach is not to treat trauma but to ‘minimize the potential for harm and re-traumatization, and to enhance safety, control and resilience for all clients involved with systems or programs’ (Canada, nd). Trauma-informed approaches are policies and practices that recognise the connections between trauma and negative health outcomes.⁴⁴ They have principally been applied by service providers and organisations that deal with traumatised people and, more recently, in criminal justice contexts such as sentencing (McLachlan, 2021, 2022). They have rarely been directly applied in regulation, and while the principles of trauma-informed care may not be directly applicable to a trauma-informed approach to regulation, they can provide a conceptual basis for dealing with traumatised persons involved in the justice system. It should be recognised as good regulatory practice.

A trauma-informed process requires (Randall & Haskell, 2013, p. 510):

… a coherent and integrative framework that takes into account the nature of traumatic experiences and helps legal professionals, community members and service providers better understand, accept, and relate to people who have been severely psychologically harmed. The most influential way to shift and expand the thinking of people working within legal or other related systems is through the provision of clear and comprehensive information that explains the underlying psychological processes that drive complex traumatic responses. This is best achieved by understanding trauma through a ‘bio-psycho-social’ lens and understanding trauma responses in terms of their biological and physiological, psychological, and social impacts.

Trauma-informed practice

In its recent report on the welfare of witnesses appearing before Victoria’s integrity agencies, the Victorian Parliament’s Integrity and Oversight Committee identified a number of best practice principles that should apply in investigative, court and court-like settings (Parliament of Victoria, Integrity and Oversight Committee, 2022, Chapter 2). Together with the principles of safety, trustworthiness, transparency, choice, collaboration and empowerment discussed above, they can form the basis of modern trauma-informed regulatory practice. In essence, a trauma-informed regulator should:

Understand what trauma is and its potential adverse effects

A regulator needs to recognise that an investigation or the exercise of coercive powers may potentially cause stress, anxiety and trauma to the person being investigated, to complainants and to other witnesses.

Support investigators to be able to recognise the signs of trauma and train them to recognise and respond to it

In Victoria, IBAC’s officers receive mental health training and use various risk assessment tools to manage welfare risks. (Parliament of Victoria, Integrity and Oversight Committee, 2022, pp. 16 and 36)

Provide information to those involved in the regulatory process about the process in order to reduce their stress and anxiety

A number of regulatory agencies provide information on their websites and in their documents about their practices in the case of an investigation.⁴⁵ Much of the information, often contained in their compliance and enforcement policies, is relatively generic, though some specifically address issues relating to the health and welfare of those under investigation.

The NSW ICAC publishes a document entitled Information for Witnesses (ICAC, 2022a) which contains a section on Witness Welfare and Protection which notes that the Commission ‘takes seriously the need to identify and manage risks to the health and safety of those involved in its investigations’ and sets out the steps that a person who is unwell, or believes that any physical or mental condition that they have may be exacerbated by their involvement in an investigation should take (ICAC, 2022a, p. 5; ICAC, 2022b, p. 12 ‘welfare management’).⁴⁶ Some regulators will provide information about the complaints process itself.⁴⁷

Provide appropriate advice and support

Knowing that an investigation may cause stress and anxiety, persons involved in investigations should be involved and educated throughout the process to reduce the likelihood of harm, and this support should be provided both during and after the investigation (Parliament of Victoria, Integrity and Oversight Committee, 2022, p. 15).

For some time, some professions have provided support services for their members whether or not they are the subject of investigation. A number of regulatory authorities, particularly those regulating health practitioners, have developed support programs for those who have come to their attention both for reasons of public protection and the health of practising professionals (Reid, 2005, p. 94). In Australia, for example, the relevant National Boards fund arm’s length support programs for health practitioners experiencing health and well-being issues.⁴⁸ In New South Wales, the Law Society provides information to practitioners about the complaints process, has a unit that offers confidential assistance and a Professional Conduct Advisory Panel that can direct a practitioner to other support services.⁴⁹

Some regulators or investigatory authorities make available their assistance programs to persons whose health and safety may be at risk from an investigation. For example, the NSW ICAC makes its Employee Assistance Program available to any person, whether they are an employee or not. Similarly, IBAC officers notify persons subject to the use of their powers of the welfare support resources available to them, where reasonably practicable and also makes its EAP available to persons subject to their powers as well as referring them to other welfare services.⁵⁰ Worksafe Victoria’s Family Liaison Officers provide a contact point for families and injured workers during the investigation and legal process, but there is no mention of persons directly under investigation.

Have processes in place to refer those involved in the process to organisations independent of the regulator for advice and support if trauma is recognised or is possible

The NSW ICAC document Information for Witnesses (ICAC, 2022a) provides contact details for organisations such as Lifeline, Suicide Call Back Service, Mental Health Line, Beyond Blue and Headspace (ICAC, 2022a, p. 6). Ahpra, the health practitioner regulatory agency, provides information about practitioner support services on its web page noting that ‘having a concern raised about you can be very stressful’ and provides further information to those who have received a notification about health services available to a practitioner.⁵¹ IBAC refers witnesses to an independent specialist welfare support services that provides counselling and other forms of support during an investigation (Parliament of Victoria, Integrity and Oversight Committee, 2022, p. 16). Independent support is regarded as important as there may be a conflict between the role of an investigatory agency and its support of a witness. Independent counsellors and clinicians have a good understanding of confidentiality requirements (Parliament of Victoria, Integrity and Oversight Committee, 2022, p. 35; see also McKenna & Holtfreter, 2021, p. 452; McLachlan, 2022; Freiberg, 2022; SAMHSA, 2014, p, 9).

Recognise that mental health or substance abuse issues may have played a role in the behaviour under investigation

The Victorian branch of the Australian Medical Association has argued that the staff of the health practitioner regulator ‘require and should receive training to understand the medico-legal environment and, in particular, in addiction medicine and toxicology’.⁵²

Ensure that investigators must uphold procedural justice standards

Regulatory agencies operate under legislative mandates and relevant common law principles relating to procedural fairness. Procedural fairness, or natural justice, requires that a regulator must avoid bias, give the person investigating a fair hearing, provide due notice, allow for representation where appropriate, provide for reasons for decisions and rights of review or appeal. A procedurally fair investigation, one which affords a person voice, validation and respect, is likely to enhance that person’s perception of the system’s fairness and legitimacy and more likely to lead to compliance with the investigator’s or tribunal’s decision as well as limiting the harm to mental health and minimising trauma. Procedural fairness can be considered as part of a therapeutic approach to justice (McKenna & Holtfreter, 2021, pp. 453–454; McLachlan, 2022).

A major issue for integrity and regulatory authorities is whether to hold a public examination, which can be damage a person’s reputation, safety or wellbeing. In Victoria, IBAC can only conduct a public examination in exceptional circumstances⁵³ which is not the case in other jurisdictions.

Not knowing the outcome of an investigation can be productive of stress, anxiety and trauma. Procedural justice standards require that investigations be carried out in a timely manner, that relevant persons are continuously informed about the progress of the investigation and that, where possible, time estimates are provided.

Conclusion

This article has examined the nature of regulatory investigations and their possible harmful or traumatic effects on complainants, respondents, investigators and others involved in the regulatory process. Noting the adversarial nature of the process and the fact that the legal responsibilities of regulators towards those whom they regulate may be limited under the law of negligence, it argues that, consistent with their broader duties to protect the community, they can conduct their investigation in such a manner as can reduce the risk of harm to participants’ health and well-being. Regulators and other bodies that exercise coercive powers must fulfil their legislative mandate, but this must be balanced by due regard to the wellbeing of those subject to its powers. Biggar and colleagues have, for example, suggested that kindness should be incorporated into the daily practice of regulators. Such practice would involve using better risk assessment to differentiate complaints to ensure that minor or low-risk cases are dealt with expeditiously, ensuring that communication with complainants and practitioners be clear, respectful, non-legalistic, regular and timely- and encouraging regulators to take better account of the context within which health professionals work (Biggar et al., 2022).

A recent proposal by the UK General Medical Council to reduce the effect of its fitness to practice processes includes reducing the overall number of full investigations, avoiding full investigations in cases that are solely or primarily about a doctor’s health, strengthening medical input into decision-making in cases about a doctor’s health, reducing stress in all investigations through changes to process, communication and duration, pursuing consensual conclusions, expanding support for doctors during the process, promoting the need for mental health services for doctors, ensuring supervision of doctors with restrictions and publication and disclosure after the case are proportionate and improving learning when doctors die by suicide.⁵⁴

The challenge, as Victoria’s IBAC has stated, is to ensure that in undertaking its statutory functions, a regulator does not ‘cause unreasonable damage to the reputation, safety or wellbeing of an individual (IBAC, 2022, p. 5 emphasis in original). Drawing on the principles and theories of trauma-informed practice, this article suggests that a trauma-informed approach to regulation can provide ‘an overarching model of justice that can be applied to traumatised individuals’ (McKenna & Holtfreter, 2021, p. 465) without derogating from a regulator’s statutory purposes.

Ethical standards

Declaration of conflicts of interest

Arie Freiberg is a member of the Agency Management Committee of the Australian Health Practitioners Regulatory Agency; however, the views expressed in this article are those of the author alone and not of the Agency.

Ethical approval

This article does not contain any studies with human participants or animals performed by the author.