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:

  1. Climate change

    Climate change provides a useful case study of understanding the framework for what defines a wicked problem: a) while there is a technical/scientific cause to climate change, it is human behavior and human choices that trigger it; b) a solution would require interconnected technical and social/political changes; and c) there are no single variables that can be isolated and changed independently without causing a cascade of predictable and unpredictable knock-on effects. The overwhelming scientific consensus that points to human-triggered causes for global climate breakdown has been dominated by political schisms that have prevented coherent efforts to meet global climate change objectives. Its global scale defies human comprehension in ways that generate skepticism and resistance. Any solutions require compromise and sacrifice that individuals are hesitant to make. The time scales involved in generating—and addressing—the problem exceed most people's experience and patience. This results in insufficient change which does not meaningfully reduce carbon emissions. Ultimately, despite overwhelming scientific consensus, climate breakdown continues to worsen.

  2. Artificial Intelligence (AI):

    Like climate change, the challenges posed by artificial intelligence (AI) exemplify the concept of the wicked problem: a) it involves scientific/technical issues beyond the comprehension of not only “average” citizens but even very well-educated and qualified professionals; b) any changes will require broad social and political consensus—even though there is currently no consensus on what the problem that needs to be solved actually is, and whether or not there is even a problem at all; and c) the pace of evolution of AI itself means that attempts to remedy the current “problem” will be outdated by the time they are even implemented. The reality of artificial intelligence may appear more mundane than its portrayal in dystopian science fiction. As a helper technology designed to relieve human beings of repetitive, intellectually unchallenging work, AI has promised humanity the opportunity to be relieved of essential drudgery—the work that is necessary for society to function that few people want to do. With the rise of generative AI (eg, GPT-4), urgent questions regarding the role of AI in day-to-day life, and the potential of AI to move beyond “essential drudgery” and into the realm of creative, ethically impactful decision making is creating significant discomfort, most of all amongst those involved in its creation in the first place. This discomfort is at inherent odds with the desire for AI to be a panacea for multiple problems, including the other wicked problems on this list. This creates a fundamental friction in the regulation of AI which is also a wicked problem.

  3. Social inequities

    Social, economic, cultural, and racial inequities and inequalities have become more visible in recent times, with the growing impact of organizations such as Black Lives Matter, ACT-UP!, and a growing awareness of the impacts of social determinants of health. Scientific consensus has established the diverse ways in which racism, poverty, homelessness, homophobia, and lack of education have demonstrable impacts on individuals, communities, societies, and nations. Within the capitalist, liberal-democratic tradition, itself at odds with many viable solutions to these problems, there is no social or political consensus on what should be done to address these real—and growing—harms. This problem is especially wicked since social inequities and inequalities also contribute to other wicked problems, namely broader societal and political polarization, and instability. Like climate change and AI, social inequity exemplifies the nature of wicked problems due to its seemingly intractable nature, and the absence of political and social consensus that biases decision makers towards non-action/inertia.

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:

  1. Regulatory bodies are the only entity within a profession that binds every individual professional.

    While some professionals may or may not belong to certain professional associations or may or may not be employed in certain practical or advocacy organizations, every member of a profession has a direct relationship with their regulatory body. This is by definition and design, based fundamentally on the social contract which forms the mandate for professional regulators. Professional regulators—unlike any other group within a profession—can use their overarching influence to shape the work and practice of every single member of that profession. Importantly, this means that regulators can also provide a unified navigational heading across professions in a sea of multiple employers, advocacy groups, and professional associations which can fractionate the professional workforce.

  2. Regulatory bodies have significant levers of influence.

    It is often said that regulation requires careful balancing of “carrots and sticks.” Properly utilized, a combination of Pavlovian levers can be particularly useful in pushing forward policy objectives and professional practice shifts. An individual employee can choose to move from one employer to another if dissatisfied with a change of managerial direction. However, regulated professionals as a group rarely have that luxury with respect to their regulator if they want to continue to practice their profession. This “bully pulpit” is extraordinarily fragile and, if misused, can lead to grave consequences. … but it is real and does exist.

  3. Regulators can incorporate scientific consensus and evidence-based outcomes into administrative, legal, and political processes.

    In this era of dis- and misinformation, the term “scientific consensus” is sometimes used pejoratively. However, the “scientific consensus” and the evidence-based outcomes which underlie it, form the cornerstone of knowledge for regulated professions. The scope and nature of administrative and legal authorities delegated by governments to regulatory bodies are always subject to nefarious or benign political interference. However, regulators themselves are largely immune to these forces and almost exclusively leverage evidence, scientific consensus, and professional trust and credibility, in executing their mandates. Willfully ignoring, overlooking, or discounting scientific evidence and consensus can and does sit uncomfortably within regulatory cultures— even when at times this evidence contradicts a prevailing political headwind.

  4. Regulators can use policy, procedure, and regulation as tools to smooth out political swings and polarization.

    Implicit in the difficulty in addressing wicked problems is their volatility in the face of political and social shifts, resulting in further chaos and instability. This makes wicked problems even more wicked. Regulators have a crucial tool to dampen such political swings: regulation. Use of regulation as a tool to de-politicize and depersonalize controversial or polarizing topics can accelerate uptake and acceptance in some challenging situations. The heft of binding “regulation” (as opposed to policies, procedures, or guidance), the implementation of which does not require political maneuvering or negotiation, is an important and unique asset for regulators.

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:

  1. “Stay in your lane”

    The problem of regulatory overreach is often cited as a reason to tread carefully when regulators attempt to develop solutions to wicked problems. It is sometimes said regulation is a blunt instrument for professional change, and the inherent nature of wicked problems themselves means there are strong social and cultural elements that may be beyond the traditional scope and mandate of regulators. For example, members of the public have demanded regulators retreat to their core roles and responsibilities related to professional practice in situations where regulators have—in the name of public protection and safety—become involved in issues related to gun violence and mass shootings.

    “Scope creep” is a legitimate concern for regulators; the boundaries of “public protection” and “safety” are ill-defined and porous, and susceptible to a broad interpretation. Further selecting or prioritizing one wicked problem over another can potentially be seen as favoring or taking sides with a social faction; this can compromise the public's perception of a regulator as being impartial and objective. Difficulties in defining boundaries and appropriate spaces in which regulatory intervention is warranted may lead regulators to avoid contending with wicked problems altogether.

  2. Registrant blowback

    Registrants within a profession have a legitimate interest in the activities of their regulatory bodies, particularly because (in most cases) these individuals pay dues that support regulatory organizations. Registrants may also play a role in the governance of regulators, thereby playing a role in setting policy objectives and strategy. When registrants feel their beliefs are not represented by their regulatory body, this can trigger resentment and open resistance.

    For example, the Law Society of Ontario recently experienced a situation in which a vocal group of registrants expressed open rejection and frank contempt when the Society attempted to include diversity, equity, and inclusivity requirements as part of annual renewal of licensure.5  This led to a very publicized fight and a highly contested election of board members (called “Benchers”) who vowed to overturn these requirements if elected. While this slate of potential Benchers lost these elections and the requirements were retained, it was not without a divisive battle fought in the public arena which undermined the Law Society's appearance of impartiality, objectivity, and fairness.

  3. Managing expectations

    The essence of wicked problems is their insolvability: rather than seeking right answers, least-worst alternatives are frequently the only viable solution. Professional regulators, and regulated professionals, generally operate within a culture which prioritizes clarity, predictability, and stability.

    The inherent chaos of wicked problems makes it difficult to manage the expectations of stakeholders within our current culture. While “solving” problems is not possible, the question becomes why regulators should even begin to engage, given the inherent friction caused by doing so. There may be a belief that regulators have unique approaches to solving problems because of the unique and broad powers they possess. Likewise, if the problems with which they engage are not solved, this reflects a flaw with the regulator. Negotiating and managing the expectations of stakeholders—registrants, the public, politicians, bureaucrats, employers, and staff of regulatory bodies—is an essential part of the process of addressing wicked problems, as are strategies to shift cultural expectations away from demanding “perfect,” “right,” and “good” answers to accepting “least worst alternatives.”

  4. Political resistance

    As noted previously, regulatory bodies are creatures of statute and exist primarily because:

    • 1) Professions themselves are socially created and publicly accepted; and

    • 2) Directly related to this, elected governments delegate certain legal authorities and responsibilities to them.

    Where governments feel threatened by regulatory actions, and can frame these actions as regulatory overreach, the risk of political interference in the affairs and activities of regulators escalate.

    Rightly or wrongly, elected officials are given the mandate to enact social, political, and legal changes that represent the views of their constituents. These views may not reflect professionals’ beliefs, may be contrary to scientific consensus, and may in fact have the potential to cause harm. While a philosophical case may exist that the regulator should defy politically motivated, scientifically insupportable, and potentially harmful actions, the risk of political resistance may bias away from action. Indeed, as “creatures of statute” regulators are relatively powerless in the face of intervention by the legislature, from which they obtain their power.

    For example, in the face of recent changes in laws in the United States restricting reproductive freedoms or deteriorating the rights of transgendered individuals, regulators may have credible scientific grounds upon which to contest policy mandates and regulatory changes being foisted upon them by their political and bureaucratic masters. This is clearly perilous: acting in support of science may trigger political backlash, but not acting despite scientific consensus risks triggering erosion of credibility and, consequently, of public support.

    The tension lies with the ambiguous nature of regulatory bodies. Are regulatory bodies arms of the government, responsible for enacting current political priorities and mandates, regardless of their impact and value on the professionals they regulate and the public they are mandated to protect? Or are regulatory bodies the “last stand” for scientifically credible, evidencebased tempering of societal values?

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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Dialogue mapping: building shared understanding of wicked problems
The rise of professional society
Routledge Press
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Regulating health professional scopes of practice: comparing institutional arrangements and approaches in the US, Canada, Australia and the UK
Hum Resour Health
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The battle for the future of the LSO: good governance vs. fear tactics
Canadian Lawyer Magazine
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. Accessed August 14, 2023.

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