Proportionality and the Ethics of Private Investigations

Insurers’ use of private investigators has been criticised for being “aggressive and inappropriate”. In response, their trade body, the Association of British Insurers, has issued guidelines to insurers on how best to instruct and use private investigators. The revised guidelines issued this month call on insurers to appoint only those “who operate… to high ethical standards.” It’s a fine call, but one that isn’t helped by the framework on offer being focussed almost entirely on governance procedures.

Those procedures help, but only up to a point. If you really do want your private investigations to be undertaken to the ‘highest ethical standards’, you need to frame your decision making process around the ethical dimensions that matter most. I’ve touched on consent and conflicts of interest in an earlier post, so in this post, I want to look at a key yardstick for the ethics of investigations: proportionality.

Proportionality is about whether or not the harms of a particular act outweigh the benefits of that act. Insurers need to apply proportionality across two distinct dimensions: the first is the decision about whether or not to carry out investigatory work, and the second is the decision about the methods to be deployed in such investigatory work.

And that balance between harm and benefits needs to be weighed up from two perspectives: that of the insurer and that of the customer. This is because the fairness element in ‘Treating Customers Fairly’ cannot be weighed up by only one side to the claim situation.

Some investigations are clearly proportionate (e.g. checks to ensure that the claimant is who they say they are) and some are clearly disproportionate (e.g. surveillance on a claimant’s children). So how do you weigh up those grey areas in between? You do this by focussing on the key words in that definition of proportionality given earlier: benefits, harms and outweigh.

Benefits and Harms

So what benefits should count towards a weighing up of whether to incept an investigation? There are three types:

sufficient just causes: e.g. to be sure of certain material details about a claim;
contributing just causes: e.g. sending a signal to other potential fraudsters;
peripheral benefits: e.g. putting your investment in fraud prevention to use.

An investigation would be justified by sufficient just causes, but not at all by peripheral benefits. Contributing just causes would only be counted if sufficient just causes existed (in other words, they are only supportive in nature)

What about harms? These need to be looked at in terms of both their significance (not all harms are equal) and their likelihood (not all harms might occur, just as not all benefits might occur).

And how do you determine if the benefits do outweigh the harms: a straight majority? There’s a view that as those benefits and harms are going to be weighed up more qualitatively than quantitatively, the benefits should outweigh the harms by a clear margin. If they don’t, then the default position of ‘not to investigate’ prevails.

Proportionality in Method

Just because, in a decision on whether or not to investigate, the benefits outweigh the harms by a clear margin, it does not then follow that investigators are given carte blanche to carry out the investigation in any way they wish. The method used in the investigation should be proportionate as well. This means a balancing of means versus ends.

Investigations can be carried out in a variety of ways and each could give rise to different harms, to different extents. Context matters therefore. Rather than list all possibile harms, it is perhaps best to organise them into three categories:

harms that arise from private investigatory activities per se (e.g. the levels of mistrust amongst claimants, social sorting, the chilling effect when considering making a claim);
harms on those who are being investigated (e.g. a range of privacy violations);
harms on those associated with the investigation, but not the specific subject of it (e.g. vulnerability).

What these harms have in common is intrusiveness. The more intrusive a method of investigation, the more information can be collected, but equally, the more harm is likely to result. Clearly the type of information being collected is important – the more intimate the information, the more harm escalates.

Conclusion

Proportionality is a key ingredient to any consideration of the ethics of private investigation. If insurers are setting themselves ‘high ethical standards’ for such work, and want to meet their ‘Treating Customers Fairly’ obligations, then a framework for weighing up proportionality in investigation decision making seems a must. What I’ve set out above is the beginnings of such a framework. As I said in the last post, claims fraud is a coin with two sides: important that it is confronted; important in the way it is confronted. The public’s support for pursuing people suspected of claims fraud is dependent on the insurance sector giving due consideration to both sides of that coin.

I am indebted to Kevin Macnish of the University of Leeds and his paper ‘An Eye for an Eye: Proportionality and Surveillance’ in the August 2014 edition of ‘Ethical Theory and Moral Practice’ for a great deal of the philosophical structure underpinning this blog post.