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Managing misconduct allegations

Best practices for conducting internal investigations

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It is now a fact of life for many healthcare companies that they will devote time and resources to undertaking internal investigations into allegations of misconduct, whether those allegations have arisen via a whistleblower, the company’s own internal monitoring or otherwise. But what is the best way of ensuring that such internal investigations are effective, efficient and involve as little distraction as possible?

This article considers some best practices for undertaking internal investigations.

First steps

A first step should be to consider what the consequences might be for the company if the allegations are correct and what the company’s obligations might be as a result. For example, should it report the issue to the authorities, are there PR or patient safety implications and/or a risk of litigation? These points will influence the investigation.

Sometimes there may be so little information that it is impossible to investigate the matter effectively. In those circumstances, the company may consider alternatives, for example monitoring the situation.

If a whistleblower is involved, the company will need to consider its internal policies and its obligations towards that person and how best to maintain their anonymity and prevent retaliation.

In addition, the company should consider on an ongoing basis whether it should suspend any employee who is suspected of misconduct. An investigation will necessarily cause disruptions and the company may need to put on hold promotions or restructurings for the duration of the investigation.

Planning

Internal investigations should be rigorously project managed with a timeline and a budget to ensure that the investigation remains manageable and affordable.

Likely investigation steps may include securing and reviewing company information and documentation and speaking to or interviewing company employees, followed by a report of the investigation’s findings.

At an early stage in the investigation, it is helpful to establish the questions to be answered via the investigation as well as the time period relevant to the investigation. Although these may change as the investigation develops and flexibility is vital, such questions will determine appropriate investigation steps and ensure that the investigation team remains focused.

Those conducting the investigation are likely to come under pressure from the company’s management to conclude the investigation as quickly as possible. The key is to manage expectations by being clear as to the steps to be taken, having regular communications and getting the support of management at the start of the process. Internal communications should be limited to ensure confidentiality and to avoid rumours being spread.

Who should conduct the investigation?

The make-up of the investigation team will depend on the circumstances and the issues under review. Clearly, the team must have the appropriate experience, technical ability and seniority to deal with the issues to be investigated.

Potential internal candidates may include non-executive directors, members of the legal department or compliance. Relevant considerations include their involvement in the underlying issues and their independence and ability to manage conflicts of interest. Individuals with a good knowledge of the affected business area and of the employees involved can be invaluable as can their access to documents and information. However, individuals who are potentially implicated should clearly not be part of the investigation team and any such possibility should be assessed as quickly as possible.

The investigation team can include external lawyers. They are not always needed but are frequently necessary. External lawyers have skills in fact-finding and their involvement can enhance claims to privilege. Depending on the circumstances, it may be that the company’s existing lawyers should not be involved in order to give an appearance of objectivity and independence.

Other experts, including forensic accountants, may also be involved but bear in mind that their input may not be privileged and so their work product should be purely factual.

Gathering evidence

Consider what company information and documentation it will be necessary to review in order to answer the questions raised by the investigation and preserve these as soon as possible to avoid them being destroyed, whether as a result of the company’s automatic destruction policies or for more sinister reasons.

In some circumstances, the issues may be so serious that it is necessary to review employee communications. In that case, consider how employees communicate with each other and third parties (eg email, text message, WhatsApp and other social media) and relevant types of devices (eg laptops, tablets or smartphones). Technical assistance will be required as well as data privacy advice and a review of company policies and employment contracts.

Once the data has been preserved, it should be stored in such a way as to ensure confidentiality and avoid possible cyber-attacks or leaks.

Reviewing large volumes of data can be made more efficient via the use of search terms or the use of technology.

Interviewing employees

It is helpful to start drawing up a list of all individuals who may be relevant and the issues specific to each of them at the start of the investigation and to refine that list continuously as the investigation progresses.

The list can include those with general background information as well as those directly implicated. It may also include individuals who used to be part of the team at issue but are now in a different part of the company.

There are a number of practical considerations in organising the interviews.

Reporting the findings

Similarly, there may also challenges in ensuring that written reports setting out the findings of the investigation and recommendations are protected by legal professional privilege, and legal advice should be sought as appropriate.

Careful consideration should be given to who should receive the report within the company. Depending on the sensitivity involved, reports might only be given orally to certain individuals.

Format and location of the interviews

Whether or not interviews are conducted face-to-face, via video conference or via a telephone call will depend on the need to assess the body language and the credibility of the individual, the need to show them documents and the need to ensure that each individual is not distracted during the interview.

The location of the interviews may include the company’s offices (a discrete meeting room away from the interviewee’s usual team is ideal), hotel meeting rooms or a lawyer’s offices.

Timetables

A timetable of the interviews should be drawn up. It can be helpful to conduct all interviews one after the other or even simultaneously so that the investigation team can more easily compare the information provided by different interviewees and reduce the possibility of interviewees conferring.

The length of each interview will depend on the issues to be discussed and the volume of documentation to be discussed. It is better to over-estimate the time required as well as provide for gaps between interviews to allow for some flexibility.

As regards the order of the interviews, it often makes sense to start with those who are least implicated or who can provide background information and then work towards those who are most implicated.

Other attendees

Consider who will be required to attend the interviews other than the interviewee. Keep them to a minimum to avoid intimidating the interviewee unnecessarily. Internal lawyers may or may not want to be involved depending on their working relationship with the interviewee.

Some business lawyers are concerned that participating in an interview may damage their working relationship with the interviewee whereas others prefer to be involved in the process and their presence may be familiar and of comfort to the interviewee.

Inviting employees to attend an interview

How should individuals be invited to attend interviews and what information should be provided to them beforehand? While it is good to be open and clear in communications with employees, the company may prefer to limit the amount of information provided about the subject matter of the investigation to maintain confidentiality for as long as possible.

Notes of interviews

Please seek legal advice if you would like notes of the interviews to be protected by legal professional privilege. Recent case law in England has created significant challenges in this regard.

Article by
Rosanne Kay

is a partner at Reed Smith

1st February 2018

Article by
Rosanne Kay

is a partner at Reed Smith

1st February 2018

From: Marketing

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