Safeguarding incidents and independent investigators – how best to use them?

When safeguarding problems arise within organisations, one of the first steps often taken is the instruction of an independent figure to investigate. These can be very high profile – one thinks of the inquiry by Dame Janet Smith into the BBC’s dealings with Jimmy Savile, and the Jane Mulcahy KC review into child abuse at Manchester City FC.

However, commissioning such reports or reviews might not always be the best course of action. Furthermore, there are different types of investigation. If an organisation wants to go down this route, it is imperative that it chooses the most appropriate type of investigation, and manages the whole process effectively.

Be clear on why you want an independent investigation

The instruction of the independent investigator should never be a knee-jerk reaction. If the organisation cannot articulate clear reasons for the instruction, it needs to give the matter further thought.

Possible good reasons for an independent investigation include the type of issues that arise. If the organisation has not had to deal with these issues before, it may not have the internal expertise and experience to do so now. Safeguarding incidents, by their nature, often involve very sensitive issues and information, and the organisation may not feel comfortable handling those itself. Instructing someone who already has experience of these issues may be very beneficial. 

The very independence of the investigator may also be a good reason to use one. The organisation would not want to be seen to be “marking its own homework”, and that very independence may help to bring a fresh perspective.

However, instructing an independent expert will incur additional cost, which could be substantial and cause delay. Also, if the investigation is to be truly independent, the organisation must cede a significant degree of control to the investigator. Finally, the organisation needs to be clear from the outset how it will use the report. Will it be kept confidential, or will it be published? If the organisation wants to gain credit for commencing an independent investigation, it will come under great pressure to publicise the report to some extent.

Choosing your investigator

Different investigators have different strengths. In a safeguarding context, it may be that a retired senior social worker would have the greatest safeguarding experience, but they might not be familiar with the organisation’s business or structure. Organisations often instruct barristers because, in addition to legal expertise, they are experienced in assessing large amounts of information and drawing conclusions that are supported by evidence. But where the information to hand is incomplete, and there is a need to carry out further investigations, someone with true investigative experience, such as a retired senior police officer, may be the best choice.

The organisation will want to verify the investigator’s credentials. CVs may be a good starting point, but references are better, and better still are examples of previous reports (no doubt fully anonymised).

Instructing your expert

The instructions to the independent investigator – often called “terms of reference” - need to be completely clear. This may sound almost too obvious a point to make, but in reality this requires close consideration.

If the organisation wants an investigation into factual issues, it needs to identify what those factual issues are. It cannot be left to the independent investigator to infer what the issues are from the instructions. If the organisation wants the investigator to go beyond factual findings, and to express an opinion on specific issues, again this needs to be spelt out. Furthermore, the terms of reference need to make it clear if opinions are to be expressed against a particular standard. For example, should the report judge the organisation against the higher standard of “best practice”, or the lower standard of “reasonable competence”.

Sometimes organisations want the independent expert to finish the report with recommendations. If so, this too should be stated clearly in the terms of reference. Usually the organisation will want the recommendations to focus on particular objectives, and these need to be stated explicitly.

One further point about recommendations – if the independent investigator is to give these, they also need to be fully informed about the organisation’s structure and resources, and the steps it is already taking to address the issues arising from the safeguarding incident. If they are not so informed, there is a real risk that their recommendations will be impractical, unrealistic, or unnecessary as matters are already in hand. Indeed, in many instances it is preferable for the organisation to formulate the recommendations itself, rather than leave this to the independent investigator. After all, the organisation knows its own business best, and the responsibility for implementing any recommendations will rest on the organisation.

Evidence

Some investigations are limited to a review of information that is already to hand, often called a “desk top review”. In other instances the information is incomplete, so more documentary and witness evidence needs to be gathered. The instructions to the independent investigator need to be clear about the information that the organisation wants them to consider, and any steps it wants the independent investigator to take to try to obtain further evidence.

Thought needs to be given about how witness evidence should be gathered. Sometimes it is appropriate, and efficient, to have witnesses complete questionnaires that ask specific questions. Sometimes witnesses may be asked to provide their own written statement covering certain issues, and sometimes witnesses need to be interviewed in person. If interviewed in person, how is the information obtained at that interview to be recorded. Will there be an agreed note of the meeting, or a transcript? The organisation needs to decide whether it has a preference on all these issues, or whether it will leave these practical decisions about evidence gathering to the independent investigator.

Sometimes witnesses can be understandably apprehensive about giving evidence. It would be good practice to have a prepared explanation of the purpose of the investigation, and of how the information from the witness will be used within the investigation. The organisations will want to have significant input into the drafting of this explanation.

Steps to take once the report is received

Even though the attention may focus on the independent investigator as they conduct their investigation, it is essential that the organisation stays fully involved with the process. A key moment is when the report is first received by the organisation. The organisation must go through it in detail to check various aspects.

First, has it adhered to the terms of reference? It may not have covered all the issues that need to be covered, and it may also have strayed outside the boundary of the terms of reference.

Secondly, is it factually accurate? The organisation knows its own business best, and it should not assume that all the factual information set out in the report will be completely accurate. Errors could come from documents, from mistaken witness, or from incorrect inferences drawn by the investigator.

Third, where the report expresses opinions, it is necessary to check that these are judged against the correct standard. Are the opinions too lenient, or too harsh? Furthermore, opinions need to be clearly supported by the evidence. The investigator’s working should be clear to see. Ideally this working has three stages: first, the opinion is expressed; second, the reasons for the opinion are given; third, the facts supporting the reasons are set out. An example of this methodology would be a statement that “the coach should be barred from the sport (the opinion) due to their inappropriate behaviour (the reason for the opinion) shown in their text messages (the supporting evidence)”.  If the reasons for an opinion are not clear, or the evidence supporting the reasons is not referenced, this should be taken up with the independent investigator.

Finally, the organisation needs to decide whether it is going to agree with the report’s factual findings, opinions and recommendations. It is not obliged to do so. The report does not carry the weight of a legal judgment. If the organisation’s view is that the report is too flawed to be acceptable, it should not feel forced to accept it nonetheless. That would make a bad situation worse.

Sometime organisations say simply that they accept the report’s opinions or recommendations, carefully refraining from going further and saying they accept all the report’s underlying factual findings. This may allow the organisation to adopt a different position on those particular factual issues, but not always. If the methodology of the report is clear, and the factual support for the opinions and recommendations is fully set out, it may not be tenable to accept the opinion on the one hand, and to dispute the factual basis for it on the other hand.

We often see the publication of these reports being accompanied by apologies from the organisation. As ever, with apologies, it is important to explain what the apology is for. A superficial apology, which does not say that the apologist is apologising for, risks being seen as disingenuous and opportunistic. Hopefully, the report should help to provide the basis for the apology. The organisation can point to a particular finding or opinion in the report to explain the apology, and this should help the apology to be accepted by those to whom it is made.