Regulation of Wicked Problems: Opportunities, Responsibilities, and Threats

A “wicked problem” is a problem that, by nature, is difficult or impossible to resolve. The term itself was first coined in the early 1970s by social scientists observing the tremendous complexity of decision making in human-centered organizations, and the limitations of using algorithmic and technical problem-solving methods in social service-focused organizations.1 Wicked problems occur in complex, contradictory, and incoherent situations. The term “wicked” does not connote any moral or good-vs-evil stance, but instead simply highlights how these problems resist solutions: often, when solutions to wicked problems are proffered and implemented, unintended consequences emerge which cascade into further intractable problems. Despite its roots in social sciences research and literature, the concept of wicked problems has been relatively slow to be recognized by regulators and decision makers, particularly in contexts where there are inherent political conflicts or disagreements. The language, models, and theories of wicked problems could be a useful way of framing the many difficult issues medical and other health regulators face in their day-to-day work.Conklin has highlighted key attributes of wicked problems and why they are so challenging.2 Most importantly, wicked problems do not have “right” or even “good” solutions, leaving only the option of “least worst alternatives” from which to select. Consequently, well-intentioned reasons to address wicked problems frequently uncover further complexity and contradiction, thereby worsening the problem itself and creating greater resistance to resolution.Many regulators will find that this description of wicked problems corresponds to their lived experiences and daily realities. Regulatory work is highly situational, dependent on numerous stakeholders with competing and sometimes contradictory agendas and needs, and subject to significant politicization. The methodological, legalistic, and analytic approach to regulation that is necessary to ensure alignment with relevant legislation and policy objectives may seem ill-equipped to handle the chaotic tumult associated with the most pressing wicked problems of our time.As regulators contemplate their futures and consider environmental risks and opportunities, wicked problems will form the context and scaffolding for regulatory work in years to come. This applies not only to the solutions developed to address wicked problems but also to the strategies and processes implemented to develop those solutions.Examples of pressing wicked problems include:Wicked problems such as these tend to dominate news cycles, influence political trends, and cause sleepless nights for many citizens (including regulators). Regulators have been hesitant to consider their own capacities and opportunities to use currently available regulatory levers and mechanisms to help address these issues. This reticence may be attributed to several factors: concerns regarding regulatory overreach, lack of faith that regulation could work as a mechanism to meaningfully contribute to resolution of wicked problems, and statutory, political, or legal limitations on regulators’ ability to move from their very narrowly defined scope and tightly controlled mandate.Regulators’ roles in tackling wicked problems raise broader questions about the purpose of regulating professions (like medicine) in the first place. Historically, professionals have been described as a “…disciplined group of individuals who adhere to ethical standards and…who are accepted by the public as possessing special knowledge and skills…derived from research, education and training…and who are prepared to apply this knowledge and exercise these skills in the interest of others.”3 Implicit in this definition are notions of a social contract between professionals and the public they serve, a focus on ethical, unselfish, and altruistic work, and the unique responsibilities that arise from professionals’ special knowledge and skills. Historically, professionals have been allowed to self-regulate—that is to monitor, judge, and hold themselves accountable for breaches—with respect to this social contract. More recently, in part due to high-profile examples of professionals abusing their responsibilities and privileges, the state (and governments) has become more directly involved in the regulation of professional work.At the core of “regulation” of professional work is the notion that “safe and effective” practice is essential for public trust, positive outcomes, and maintenance of the social contract that binds professionals to their societies.4 Because of the esoteric and specialized knowledge that goes into professional work, society places trust in professionals to self-regulate. In this framework, in exchange for legislation and regulation that defines and protects professionals’ specialized scope and activities, professionals agree to abide by publicly mandated standards of practice and codes of ethics that focus on safe and effective work. Professional regulation thus serves a dual purpose: it both protects professionals and protects society from professionals.In line with this dual purpose, in most jurisdictions, the work of monitoring and managing professionals has been delegated to regulatory bodies. While they are governed by professionals capable of appreciating their specialized and nuanced activities, these regulatory bodies are only “creatures of statute”: governments may create them as a way of fulfilling their obligations to society to oversee important and potentially dangerous professional work, but ultimately governments are the ones which are truly in control. Importantly, this means that regulatory bodies themselves are not “creatures of professions” even though professionals themselves are directly involved in, and ultimately oversee, regulatory work. This reflects the social covenant which exists between professionals and the public.Keeping with that social contract, regulatory bodies do not advocate for professions nor work to protect individual professionals. Their obligations are to the public from which they derive their legitimacy and power. Public protection is their central mandate. This is achieved through a variety of delegated legal authorities designed to align regulators’ work with government or state mandates using the tools, principles, and methods of administrative law. Powers delegated from legislatures to regulatory bodies reflect both the nature of professions and their social contract with the public: assessment of readiness of prospective professionals to practice, evaluation of ongoing competence, and management of complaints from the public against professionals. Given its delegated nature, these powers must necessarily align with both administrative law principles, including fairness, transparency, and due process protections; they must also comply with the bureaucratic and political priorities of elected legislators. As a result, despite good intentions, many regulators recognize their own legal and statutory vulnerability and feel bound to prevailing political winds even when these are not aligned with scientific evidence or professional/ethical standards.How can regulators consider their own opportunities and responsibilities in responding to the kinds of wicked problems described above within this intersection of historical, theoretical, and legal frameworks? What threats and risks must be considered and balanced? Recognizing that lack of action or indecision related to wicked problems is itself a kind of decision—what should be expected of regulators? How do they even begin to discuss these overwhelmingly complex issues?As with most wicked problems, the regulatory response to wicked problems is itself a special kind of wicked problem. However, there are notable features of regulatory bodies that make them specially adapted to addressing wicked problems. This creates opportunities for regulators to respond to wicked problems that are both unique and compelling. Such notable features of professional regulators include:This is not to say that regulators can easily, or even readily, address wicked problems; only that they have the potential to do so. Indeed, while many regulators may be personally invested in addressing wicked problems, they face diverse obstacles that make this difficult and cumbersome, including:Wicked problems exist and persist precisely because they have no easy solutions; the wicked problem of a regulatory response to wicked problems is itself a case in point. Currently, there can be, and is, no answer, approach, or model to guide regulatory decision making in these situations. However, equally, the absence of a model for decision making, and absence of engagement with wicked problems by regulators, is ostensible to the public, to the detriment of regulators’ credibility and public endorsement.It is imperative that professional regulators make the development of frameworks for addressing wicked problems, and in fact addressing wicked problems, a strategic priority. The nature, complexity, intensity, and frequency of wicked problems intersecting with professional practice will continue to expand in years to come. Dialogue and debate on proportionate, appropriate, and defensible regulatory responses to these wicked problems will be essential. It is not possible to ignore these problems or to “pass the buck” and assume that others are better equipped or more legitimately able to address them.Literature on wicked problems notes that one approach to their management involves building coalitions amongst diverse stakeholders and organizations. This is essential since no single individual or group can tackle a wicked problem. By contrast, collective action that is aligned and focused can produce meaningful improvements, even if a problem itself can never be solved. Regulators are in a unique position to lead the building of such coalitions across professions, organizations, and on behalf of their mandate of public protection.If not regulators, now. … then who, when?

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