Trauma-Informed Regulation

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A trauma-informed approach to regulation should seek to minimize the stress and trauma of regulatory investigations.

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For any person who is the subject of a regulatory investigation or similar coercive investigative procedure, the process may be stressful or even traumatic. The effects of the process, as well as any subsequent disciplinary or legal proceedings, may include shock, anger, shame, physical illness, loss of professional identity, reputational and financial loss, and, in some extreme cases, suicide. Similarly, the regulatory process can have traumatic effects on individuals who instigate the process through a complaint or notification.

Regulatory agencies have not always paid sufficient attention to the effects that complaints or notifications, the investigatory process, and disciplinary hearings have on regulated individuals. Likewise, agencies have also overlooked the practices or programs that might be used to minimize the adverse effects of regulatory investigations.

A recent essay in The Regulatory Review on regulating health professionals in Ireland, though, drew attention to the need for regulators to design a regulatory system that keeps practitioners safe, as well as the public.

In addition, a recent report by the Australian Health Practitioners Regulatory Agency and National Boards (AHPRA) on practitioner distress during the regulatory process found 20 instances where regulated practitioners had engaged in self-harm or attempted or committed suicide between 2018 and 2021. These data serve to recall Malcolm Feeley’s 1979 book, The Process is the Punishment.

According to the AHPRA report, the distress among health care practitioners targeted by regulators resulted from the regulatory process itself: delay, inadequate communication, a sense of injustice or unfairness, unnecessary interim restrictions, media exposure, financial stress, and a perception that the presumption of innocence had been reversed.

These factors are not unique to health care practitioner regulation. Although most studies of the adverse effects of regulatory investigations have to date centered on health practitioners, legal practitioners, teachers, engineers, and others can also be the subject of an investigation and lose their licenses, their reputations, and their incomes. For whatever reason, the regulatory literature appears to overlook the harmful effects of investigations on a large number of regulated professions or occupations.

The increasing awareness of the nature and effects of trauma, including what has been termed forensic or litigation stress or trauma, on many participants in an investigatory process has led to the development of “trauma-informed” approaches in family law and on issues such as sexual assault and corrections. Courts are becoming more trauma-informed, as have various integrity-protecting regulatory bodies.

The principal purpose of many regulators, particularly health regulators, is to protect the public, not the individuals subjected to the regulation. In Australia, 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. Such a duty, the courts have said, would be inconsistent with regulators’ primary duty to protect the public. Some duties, however, to persons who are the subject of investigations may arise from workplace health and safety laws, laws governing public administration, and regulatory codes of conduct or practice, charters, or guides.

Although a formal duty of care to the regulated individuals may not exist, recognizing the risk of stress or trauma for those involved in the regulatory process may be the first step toward a trauma-informed approach to regulation that considers the welfare of all those involved in regulatory investigations. Such an approach may be regarded as a form of therapeutic jurisprudence in that it seeks to treat all parties respectfully while avoiding traumatization due to interactions with the regulatory system.

Trauma-informed regulatory practice is founded on the principles of safety, trustworthiness, transparency, choice, collaboration, and empowerment. Trauma-informed practice involves an understanding of the nature of trauma and its potential adverse effects. It seeks to support investigators in recognizing and responding to signs of trauma. It also provides information to the regulated individuals about the regulatory process, connects these individuals with independent organizations for advice and support, and ensures that investigators uphold procedural justice standards.

In April 2023, AHPRA’s Expert Advisory Group made 15 recommendations and proposed 33 actions designed to humanize the experience of health practitioners involved in the regulatory process. These include improving the awareness and knowledge of the regulator’s staff about mental health and substance use disorders, improving consistency in decision-making, providing regular and informative updates on the process, taking actions to increase independent professional support for those being regulated, and providing support for affected staff themselves.

Although the adversarial nature of investigatory and disciplinary processes, and the overriding duty of regulators to protect the public, may seem to militate against a trauma-informed approach to regulation, the regulator’s mandate should and can be balanced by giving due regard to the well-being of those subject to their powers. Good regulatory practice requires no less.

Arie Freiberg is an Emeritus Professor of Law at Monash University in Melbourne, Australia.

 The author is a member of the Board of the Australian Health Practitioners Regulatory Agency; however, the views expressed in this article are those of the author alone and not of AHPRA.