Protect Your Practice Part 1: Regulatory Investigations

This blog is Part 1 of our series, Protect Your Practice

Professional regulators are organizations that regulate professions, usually under the authority of legislation which provides jurisdiction and powers to enforce their governing legislation. Most regulators have powers of investigation, which are an important tool for fulfilling their statutory mandate to govern their respective professions in the public interest. The professionals who are governed by a regulator may be called different names depending on the regulator, including “member”, “registrant”, and “licensee”. In this blog, we will use the term “registrant”, although your regulator may use another term.

Regulators often communicate with registrants informally as a first step in determining whether further investigation is needed. Responding appropriately to an initial inquiry by regulators can sometimes nip a concern in the bud. If a formal investigation occurs, the regulator’s investigative or screening committee decide whether there is enough evidence to support a referral to the regulator’s a disciplinary tribunal. The screening committee decision is another key opportunity to demonstrate that there is no cause for concern and end the investigative process.

Because regulators usually use progressive levels of investigation and response when investigating concerns regarding registrants, a registrant’s goal when responding to an investigation should be to demonstrate compliance, diligence, and insight. This can help the investigation resolve at the earliest possible point. While compliance is required (and recommended!), registrants have the right to procedural fairness in investigations but how registrants respond to investigations or assert those rights can change the course of an investigation and lead to different outcomes. Therefore, a strategic and thoughtful approach should be taken with the registrant’s first communication with a regulator.

If registrants fail to answer early inquiries by their regulators or to respond effectively in the course of a formal investigation, this can make matters much worse for the registrants. Registrants are typically required by their governing legislation to respond to communications from their regulator, and to cooperate with an investigation. Obstructing an investigation is often expressly prohibited and may be considered an act of professional misconduct or an offense that comes with sanctions above and beyond the initial reason for investigation.

There are also strategic considerations to consider regarding the information that should be provided to a regulator. If a registrant is confident that their practices are compliant with regulatory guidance, then early disclosure of the requested information may be beneficial. However, if a registrant is likely to be referred to discipline following an investigation, there may be strategic value to not providing a statement or response during the investigation phase.

There are many factors for a registrant to consider and an approach that works for one situation may not for another. When regulators use their statutory powers of investigation, a smart, strategic, and insightful response by the registrant under investigation is a protective factor for the registrant and their practice. The following are our tips for registrants responding to a request for information or a response from their regulator:

1. Preventative compliance: All professionals can benefit from ensuring that they understand and are in compliance with the professional standards established by their regulator.

2. Preserve all communications: Take notes regarding any verbal communication with your regulator (include the dates, times, and content) and keep a copy of any letters or emails from with your regulator.

3. Insurance: Check in with your professional liability insurer, as some insurers provide funding or access to legal counsel to assist with responding to investigations by regulators.

4. Legal advice: Seek legal advice as soon as possible and before responding substantively to your regulator. Even informal conversations can be used against you later.

5. Understand the scope: An investigator must limit their inquiries to matters related to the concerns being investigated, however, this scope may be quite broad and could include personal information of the registrant. It is usually reasonable to ask what the scope of the investigation is before responding to a request for information.

6. Facts first: Do not speculate about facts outside of your knowledge. Do refer to the patient or client records, if possible. This may include requesting records if you are not the custodian of that information. Maintaining complete and accurate records is a habit that can save the day during an investigation as people forget details over time.

7. Don’t be defensive: Avoid a defensive or aggressive tone in communications with your regulator. If you have made a mistake or someone has been harmed, demonstrating compassion and insight into that mistake may be reassuring to your regulator and lead to a more positive outcome for everyone involved.

If you believe that you or your practice are under investigation by your regulator or have questions about how to respond to communications from your regulator, please contact us.