What is an internal investigation?
As organisations come under increasingly more scrutiny by the media, public and regulatory bodies, the need for an effective internal investigation has become more important than ever.
An internal investigation is an inquiry conducted within an organisation to gather information about potential rule violations, misconduct or illegal activities by its employees or related parties. The investigation is usually conducted by a team of experts, investigators, or external consultants who are impartial and objective, and the report is submitted to the board for further action.
The purpose of an internal investigation is to identify any violations of company policies or regulations, assess the risk to the company, and prepare recommendations for corrective actions or legal action if necessary. There are many scenarios which demand an effective internal investigation including acquisition due diligence, potential criminal or regulatory issues, complaints, whistleblowing, and external inspections. An internal investigation should seek to:
- Establish the facts
- Prevent further occurrences
- Enable the organisation to effectively deal with public fall out
- Demonstrates to stakeholders and shareholders that the organisation has learned from the incident
The importance of an effective internal investigation
In a number of our recent independent investigations, we have been struck by the detrimental impact that a poorly handled internal investigation by a trust has had on families. This is often compounded by the trust failing to communicate with families in a timely, open and honest way.
By the time Verita is called in, to either re-investigate the original incident or to investigate how management responded to the incident, in many instances the family has lost faith in the trust’s ability to get to the bottom of what went wrong. In a number of cases it has gone beyond this and the family believe that the trust are trying to ‘cover up’ or are deliberately keeping information from them.
Insights on engaging with families after incidents
During the course of our work, we often find a number of failings but these are usually attributable to a series of errors, incompetence and poor decisions. Rarely do we find evidence of ‘conspiracy’ at all levels within an organisation to try to cover up failings.
Our investigations often identify a number of missed opportunities for the trust to have engaged proactively and honestly with families following internal investigation of incidents. In a recent case there were multiple missed opportunities which included failure to:
- contact the family as soon after the event as possible to offer condolences and ask how they would like to be supported
- inform the family as soon as new information regarding their family member’s death came to light
- be open and honest with the family during a meeting – primarily through fear of sharing incorrect information
- investigate thoroughly concerns raised by the family about the care of their family member; and
- investigate appropriately the management response to the incident and the family’s concerns.
With such a series of failings it is understandable that families can start to think that the trust is deliberately trying to be obstructive and potentially withholding information. We found that even in the absence of evidence to support a conspiracy, the trust had done little to dispel the belief or try to improve the situation for the family.
In another case the family had accused the trust of trying to ‘cover up’ the failings which they believe led to their family member’s death. The way the trust conducted its internal investigation contributed to this belief by:
- failing to consult the family regarding the terms of reference
- telling them the incident would be investigated by a panel but was subsequently investigated by a lone investigator
- a delay in the family receiving the medical records and when they did notes were missing without explanation
- failing to interview all appropriate staff and by allowing a manager of the service to be present during some interviews; and
- the investigator presenting the family with a copy of the report and then telling them it was the wrong version and tried to take it back.
The Duty of Candour has been in place since April 2015 and it provides a framework for trusts to be open and honest with patients and families, particularly when things go wrong. So why are some trusts getting the basics so fundamentally wrong? In a number of recent cases we identified the following contributory factors:
- a culture of blame and therefore a fear of admitting a mistake has been made
- a belief that apologising is an admission of guilt
- a lack of understanding about what their responsibilities are under Duty of Candour; and
- staff not feeling appropriately supported.
Trust’s must ensure that they invest in the Duty of Candour by encouraging an open and transparent culture and by training staff so they understand and are able to execute their responsibilities under the act.
Can internal investigations be truly independent?
The internal investigation managed by Sue Gray had a straightforward remit; to conduct “Investigations into staff gatherings in No 10 Downing Street and the Department for Education”. In common with many internal investigations, the investigator does not have decision-making powers. Her job was to find the facts and to paint a picture for the commissioner of the investigation that describes what happened, who was involved and whether those involved may have broken any rules in force at the time.
In common with most internal investigations, the terms of reference give the investigator the opportunity to flag up any potential criminality but the responsibility for any decisions arising from her investigation rest elsewhere. For civil servants, any alleged misconduct would be addressed under the service’s disciplinary processes. And for Ministers, their behaviour would be considered under the process set out in the Ministerial Code.
There has been widespread criticism in the media that the investigation is not truly independent, and perceptions have arisen that the findings will simply exonerate the principal characters involved. The investigation was also being conducted in the full glare of public interest with political and media commentary on the evidence, the allegations, the conduct of the investigation and the behaviour of those involved. This makes it hard to focus impartially on the evidence being evaluated.
As investigators we are trained to avoid jumping to conclusions. We know that it is essential to gather the evidence, to corroborate what we find and to evaluate it dispassionately and impartially. Few of us, however, will have conducted investigations in such febrile circumstances. Your next investigation is unlikely to be quite so dramatic, but if you are about to start one and need any advice, please get in touch.
Risks of a poor quality internal investigation
Every week, the media covers another story of patient harm, bullied staff or sexually abused students. No sector is exempt, with recent examples including NHS organisations, universities and a large law firm. Each story will resonate and shock in its own way. But too often we overlook that what is driving the coverage and the comment is not the actual event, but the failure of the responsible organisation to investigate it thoroughly, fairly and transparently at the very beginning.
Many organisations have carried out an internal investigation to deal with allegations and complaints in-house, only for it to increase hurt and stress to individuals. During our work with Sir Robert Francis on the public inquiry into the failings at Mid-Staffs hospital and subsequent investigations into the fitness of senior NHS directors, we came across far too many people whose livelihoods, happiness and mental health have been damaged by unfairness or failures in the investigative process.
Senior leaders should also reflect that poorly governed internal investigations can cost the organisation more, not just financially but in terms of reputation and punitive regulatory action. There is also a wider societal impact, with the loss of trust in both public and private bodies to do the right thing when something goes wrong.
There are options to help put this right, to drive fairness and transparency in investigations from the start and properly engage with the individuals affected throughout the process. There needs to be a shift to a new culture, one that positively embraces independent investigations, experience and expertise, and the need to share findings and recommendations more widely.
If you would like to learn more about our independent investigation services and how to conduct an effective internal investigation then please book a free consultation or contact Ed Marsden on 020 7494 5670 or [email protected].