Continuing Competence – CPD and accreditation

5.82     There is significant disagreement as to how continuing competence, beyond initial qualification, needs to be assured. This issue is considered further in this section, which explores the need for ‘core’ CPD, and specialist accreditation, and considers re-accreditation as a distinct strategy for ensuring continuing competence.

The importance of ‘continuing competence’

5.83     In order properly to assure competence, greater attention should be given, and a greater proportion of regulatory resource allocated, to LSET at the post-qualification stage.

5.84     There is widespread acceptance of the principle of continuing competence, as being at the core of professionalism. The debate is whether continuing competence must be signalled and assured by some form of mandated CPD scheme or by a system of re-accreditation.

5.85     Resistance remains to prescribed CPD. Mandated schemes are seen by some members of the Bar[1] and others as infantilising. Professionals do not need to be told to do CPD; learning and researching are integral to the role, they argue. Taking CPD out of the job, and treating it as something different, can be seen as both diminishing its role, and marginalising continuing learning, so that it becomes something you (only) have to do for a number of hours a year:

What’s the purpose of CPD again? …It’s a serious question because I’m not sure. I can’t remember whether it’s to learn something or to show you’ve spent 16 hours a year pretending to learn something to satisfy the sort of thing that you ought to be doing.

Solicitor

5.86     This is a serious question, not least because the removal of a regulatory requirement for CPD is not a realistic option, as a number of stakeholders point out:

The Bar Council records its view that any proposal to reduce or dispense with CPD would not be acceptable to clients or the public.

Bar Council response to Discussion Paper 01/2012

The public expect lawyers to be re-assessed on a regular basis to verify their competence, but of course there is no regulatory requirement relating to ongoing competence beyond the completion of a minimum number of CPD hours.

LSCP submission

5.87     It is assumed that there will need to be a system of CPD, and this should assure competence.

CPD – setting the range

5.88     Regulators currently prescribe elements of mandatory training in some areas,[2] but there is little consistency across the legal services sector as regards CPD requirements, or whether there are continuing ‘core competencies’ which should be part of CPD.

5.89     CPD needs to be both more flexible (according to both the SRA and BSB reviews) and more structured and useful for each individual. Flexibility and utility appear to drive the redesign of the IPS scheme for CILEx members. Care needs to be taken in setting the content of CPD, since this can reduce flexibility. If prescription is to be introduced it should be proportionate in scope and effect. This is highlighted in a number of contributions in the LETR research data:

It ought not to be possible for anyone practising as a legal professional not to possess a basic level of taught competence in their field of specialisation, and in core subjects such as ethics, accounts rules, procedure and professional conduct, and continuing training should be mandatory in these areas to a greater extent than it already is, to ensure that no professional can slip through the cracks

Solicitor (online survey)

While we favour flexibility in how solicitors can continue to develop themselves, no doubt there may be suggestions that some prescribed training be included in the scheme. If so, we would advocate limiting this to some form of ethics training (whether annually for all or some lesser obligation) and/or management training including financial management training (improving the current compulsory course for mid-level associates and on top of the training for those holding management roles in the new ABS world).

CLLS first submission

 5.90     The review of CPD commissioned by the SRA recommends consulting the profession more widely on the need for any compulsory CPD components, and a number of significant areas are highlighted by the LETR research. It is recommended that the following areas be considered by the approved regulators for inclusion as mandatory elements of any CPD scheme. The precise extent and form of prescription are a matter for each regulator, and may depend on whether the scheme retains hours of study or, like the new scheme for CILEx members, adopts a more cyclical or ‘benefits’ approach.[3]

Professional ethics, conduct and governance

5.91     There is a public interest (and a competitive interest) for regulated lawyers in demonstrating and maintaining the integrity and high ethical standards of legal services provision. This is already reflected in some aspects of LSET. Both the PSC for trainee solicitors and the Bar New Practitioners Programme include ethics. IPS mandates coverage of ethics in the new CPD scheme for CILEx members; the SRA has been invited to consider whether it should do so (Henderson et al, 2012); and the BSB encourages practitioners to undertake CPD on ethics (BSB, 2013). IPReg (2012a) also proposes training in the professional code for entrants and for those moving from in-house to private practice. Other regulators do not demand a mandatory ethics component in their CPD schemes. Internationally, as described in Chapter 5 of the Literature Review, practice varies, though professional ethics and regulation are a significant element in the New South Wales scheme which offers a useful example of limited prescription (Mark, 2012).

Management skills

5.92     ‘Commercial awareness’ has been highlighted already, and the development of business and management skills, is widely acknowledged as important, but not embedded across formal LSET structures. Though it may be argued that the better solution is to buy-in business expertise rather than turn lawyers into managers or entrepreneurs, this may not be an option for smaller entities. Lawyers will still have to perform leadership and management roles (eg, managing teams or departments within a firm, ABS, local authority or corporate entity). Lawyers may find themselves running a commercial enterprise despite having no prior training for this role.[4]

5.93     Recent high profile failures,[5] and concerns that the sector is on the brink of a wave of collapses, emphasise the importance of business and management skills, though it is of course acknowledged that even well-trained managers can fail. Rules on interventions and insolvencies create some protection for consumers but not for staff or partners.

5.94     The evidence from the LETR research data particularly highlights doubts about the timing and adequacy of the Management Course Stage 1 for solicitors. Although a standardised course has benefits in terms of cost and economies of scale, the added value and appropriateness of this course need to be reconsidered, and evaluated against the benefits of a more flexible CPD requirement.[6] CILEx participants raised concerns about their preparedness for independent practice (see also IPS, 2012, which identified this as a gap in current provision) and the Bar Council and Inns of Court have also acknowledged a need to keep under review the adequacy of CPD in this area.[7] The extent of CPD support for management roles in other regulated professions is either limited or just not explicit.[8]

5.95     The potential scope of management training is extremely wide. LETR research data point to the importance of client relationship management, project management, and risk management, as well as the higher organisational management skills needed to provide leadership in a rapidly changing environment. However, training needs are likely to be quite individual and entity-specific, and the specification of detailed outcomes and requirements may consequently not be the best way forward. Entity-based regulation, supported by conduct principles and guidance from the regulator may well provide a more flexible and proportionate response in this area.

Supervisory skills

5.96     If workplace learning is to add value rather than simply time served, much depends on the quality of supervision. Qualitative evidence continues to point to failures in the adequate supervision of paralegals (see Chapter 3) and trainees. Comments in the qualitative data include:

Any solicitor who intends to take on a trainee should be required to undertake specific training for supervisors. Currently, there are extremely poor examples. This should be required as mandatory under the CPD regime.

Solicitor (online survey)

5.97     Standards are in place in a number of the regulated professions; for example, the BSB provides a pupillage ‘checklist’ (BSB, 2012b) and there is a specific short course for pupillage supervisors. The SRA requires trainee supervisors to be ‘adequately trained’, but this is not supported by a requirement for any particular training regime. Prescription may well be a proportionate response if the value of workplace learning is to be enhanced.

Equality and diversity training

5.98     Responses to Discussion Paper 02/2011 highlighted support for further action in this area:

Diversity training should be compulsory at all levels in order that the issue of diversity is embedded. The tendency for practitioners is to see diversity and equality of opportunity as an unnecessary burden imposed by regulators.

Black Solicitors Network response to Discussion Paper 02/2011 (qu. 25)

We recommend that diversity training, in particular unconscious bias training, should take place at several career points including the LPC and BPTC/BVC stages and for qualified lawyers (as CPD). In addition, we recommend approved regulators require diversity training (as part of CPD), for senior staff in firms/chambers to ensure diversity principles are embedded in organisations.

Freshfields’  response to Discussion Paper 02/2011 (qu. 25)

5.99     There are already elements of regulatory intervention relating to training in this area (see also LSB, 2010). The SRA includes ‘providing employees and managers with training and information about complying with equality and diversity requirements’ within the indicative behaviours attached to Chapter 2 of its Handbook (SRA, 2013) and therefore part of the new Code of Conduct. The BSB Equality and Diversity Rules (BSB, 2012c) demand that, from January 2013, at least the lead in any selection panel for ‘members of chambers; pupils, clerks or assessed mini-pupils’ must have received recent training in fair selection procedures.

5.100     The Bar Council offers an Equality and Diversity Training Programme (Bar Council, n.d.) and a wide range of other initiatives are underway (eg Harris, 2011; Commercial Bar Association, n.d.). The Law Society supports equality and diversity training in the context of its Diversity and Inclusion Charter. It reports (2012a:40) that, of its 2012 cohort of 177 firms:[9]

In 2011, 30 large firms (22.4%) and 15 small firms (62.5%) delivered a range of equality and diversity training and information to staff in their practice. This has only increased to 45 large firms (31.7%) and 18 small firms (51.4%) – an overall fall in the proportion of small firms taking action on this.

5.101     In addition, the Law Society in its Careers Barriers Action Plan (2013a) supports using LEXCEL to promote best practice and is considering development of an equality and diversity accreditation scheme. CILEx has adopted commitments which include (CILEx, 2012b) an action plan to 2015 including diversity training for its staff. A number of initiatives for IP attorneys were reported in 2012 (Taddia, 2012).

5.102     There is, therefore, a considerable groundswell to indicate support for appropriate equality and diversity training, and an extensive literature on interventions intended to promote fair behaviour to colleagues and clients (see for recent examples Bezrukova, Jehn and Spell, 2012; King, Gulik and Averyl, 2012; Celik, et al, 2012). There is also some caution about the risks of over-prescription and the effectiveness of some forms of mandatory diversity training (Pendry, et al, 2007; Paluck and Green, 2009). While it is recognised that care needs to be taken in the way in which this important matter is progressed, regulators should, where they have not already done so, consider including a greater element of diversity training at key stages of training and CPD, to include unconscious bias training and, where appropriate, training in equality and diversity in recruitment.

Other emerging needs

5.103     Continuing doubts about the quality of communication skills within the legal services sector led the research team to consider whether client communication skills should also be included as mandatory areas for CPD. There is no doubt that there are individual practitioners who would benefit from CPD in this area, but consumer satisfaction data do not suggest that the problem is so widespread as to require prescription. This is also an area where consumers can make valid judgements about the quality of services received. Entities should be able to identify members of the organisation that require support and development from their own complaints and client satisfaction data; if they do not, increasing competition and consumer redress mechanisms will play their part. The development of choice tools such as rating systems and comparison sites that would enable consumers to select on service as well as price criteria would also provide a more powerful inducement to improve quality in this area than additional CPD requirements.

5.104     Discussion of the effect of potential divergence between Welsh law and English law was reported in Research Update 12/02. There was overall a wide range of views, but a core consensus amongst respondents that:

• a competent lawyer practising anywhere in the country needs to be aware that law and practice in Wales are now not necessarily identical to that of England;
• it would be incompetent for a lawyer to trespass into matters of distinct Welsh law and practice without appropriate preparation.

5.105     The LETR research data were collected before the Welsh Government rejected, for the time being, a separate jurisdiction for Wales. At this stage, then, while the degree of divergence is comparatively small, it is not recommended that compulsory practical training or activity-based authorisation for practice in Wales are appropriate. For practising lawyers, the details and practical implications of practice in Wales are most usefully dealt with as required through appropriately targeted CPD.

Form as well as content

5.106     The key issue for CPD, however, is setting an appropriate structure for continuing learning. As noted in Chapter 2, the focus of compliance on satisfying the relevant number of ‘points’ or hours rather than on the usefulness of what is learnt raises serious concerns. Much of the CPD system, as currently formulated, is built around ‘inputs’ rather than ‘outputs’. (Madden and Mitchell, 1993). The extent to which CPD ‘works’ may in fact be in spite of rather than because of the current system, particularly where it fails to give proper credit for significant self-directed or informal learning, or to encourage forms of learning and reflection that are central to the development of expertise. The question of the appropriate form for CPD schemes is addressed in setting out the requirements for future regulation in Chapter 6.

Re-accreditation

5.107     By contrast with the system of CPD, concepts of ‘revalidation’, as seen in the GMC system, do encourage a greater sense of reflection in learning.[10] The case for continuing accreditation or re-accreditation tends to turn on calls for greater professional accountability (Davies, 2007) and/or the belief that it provides the public with the reassurance that professionals maintain fitness to practise (LSCP, 2010; George Street Research, 2010). The call for formal re-accreditation of legal professionals has thus been advanced by the LSCP (LSCP, 2010) largely on grounds of consumer interest and expectation:

The nature of regulatory activity is out-of-step with what the public expects. Participants in the panel’s research expected competence to be continually monitored. When given a list of options for ensuring quality, they strongly preferred ‘harder’ regulator-led mechanisms such as regular competence reviews or exams.

LSCP (2010:13)

5.108     Re-accreditation[11] is the evaluation of a professional’s continuing competence, authorisation or licence to practise, normally on a fixed periodic cycle. It may or may not be distinct from the retention of a professional title. Re-accreditation may be made up of a range of different processes and does not necessarily involve formal re-examination. Although in the online survey the term ‘revalidation’ was used, this chapter will use ‘re-accreditation’ as a generic term to avoid over identification with specific processes now being used in the medical professions.

5.109     The issue of re-accreditation was discussed in focus groups, and raised in Discussion Paper 01/2012. Views on the perceived reliability of re-accreditation were obtained from the online survey and the CSP received a presentation from Sara Kovach Clark[12] at the November 2012 meeting.

5.110     National and international research and developments in re-accreditation have also been considered in order to decide whether there is a sufficient case at this stage to introduce re-accreditation as part of the continuing training requirements for regulated legal services providers.

The wider professional context

5.111     Other than voluntary schemes (such as Law Society voluntary schemes and APIL) and the ongoing development of QASA, there has been limited experience of re-accreditation in the UK or other major legal professions.[13] Until recently re-accreditation has been little adopted by UK professions in general, though this is changing.

5.112     North America has taken the lead in requiring professional and occupational re-accreditation. Teacher re-accreditation has been in place in over 40 US states since the mid-1980s, and is now widespread in medicine. The Ontario medical system adopted a system of peer review and physician evaluation in the late 1980s, while the US Federation of State Medical Boards adopted a policy in 2004 requiring individual states to ensure that physicians seeking re-licensing were competent (Davies, 2007:332). Systems of re-accreditation have also become more common for professions allied to medicine and paramedics. Physician Assistants in most US states are thus required to undergo a recertification examination every six years. In the UK, ‘revalidation’ is now being gradually implemented across the health care sector following recommendations in the 2007 White Paper, Trust, Assurance and Safety – The Regulation of Health Professionals in the 21^st Century (for progress, see Council for Healthcare Regulatory Excellence, 2012). Two new schemes that are of some note, given that they involve well-established, relatively ‘traditional’ professions, are those under development by the General Medical Council (GMC) and General Dental Council (GDC). Each has its own distinguishing features, and the GDC version in particular may be of interest given that dentistry functions in a manner closer to the primary organisational model of legal practice than medicine – see Annex II for an overview of each scheme.

5.113     Both the GMC and GDC schemes are universal schemes. There is no attempt within those sectors to focus particularly on high risk activity, except insofar as the standards themselves may reflect risk-based requirements. Both are shaped by trends in modern re-accreditation practice: they are appraisal- rather than examination-based, they rely substantially on CPD over a five-year cycle, and include patient feedback. The evidential requirements of the GDC scheme appear to be lighter-touch than the GMC, but the aim in both schemes is to draw on data sources that are, for the most part, already required for other purposes, thereby seeking to limit additional time and information burdens on those being accredited. A number of UK NHS Ambulance Trusts have also introduced employment-based (ie, non-statutory) recertification for paramedics (HPC, 2008).

Attitudes to re-accreditation: introducing the LETR research data

5.114     Attitudes to re-accreditation were explored largely through the online survey, but also in some focus groups. The research demonstrates doubt about the need for re-accreditation, and about what re-accreditation might entail. There is a risk that such doubts might be fuelled by misunderstanding. A number of respondents equated re-accreditation with (as one solicitor put it) ‘re-taking your driving test’ – some kind of formalised test of knowledge and skills, or simply an examination, possibly of ‘day one’ competence:

[A]ctual periodic testing is not a good idea due to a variety of reasons – it runs the risk of putting undue stress on lawyers, and different people react differently to ‘exam’ situations, which could lead to a biased system of assessment.

CILEx member (online survey)

5.115     Others clearly did appreciate that re-accreditation might involve different mechanisms from a formal test of competence, though a small number of comments suggested that formal assessment was both necessary and fair. These variations should be kept in mind in interpreting the data which follow.

Does re-accreditation support competence – is it reliable?

5.116     The LSCP suggests there is a strong expectation among consumers that lawyers are re-accredited, and that this offers some guarantee of competence. The LETR online survey provided a mixed picture.[14] 57.3% of respondents considered re-accreditation to be a reliable mechanism for assuring professional competence. However, ‘revalidation’ was ranked as the least reliable of four mechanisms highlighted by the survey (Table 5.2), coming below more targeted remedial (disciplinary) training, the use of specialist accreditation schemes, and CPD. These scores may reflect a real assessment of reliability, but the generally higher support for CPD may also reflect the greater comfort and familiarity the professions have with that mechanism.[15] The high degree of faith placed in on the job learning is also a notable feature of the data.

Unweighted data.

Table 5.2: Perceived reliability of revalidation vs other mechanisms of assuring competence

	Reliable	No Effect	Unreliable	Missing
Revalidation	58.4%	15.7%	24.4%	1.6%
Targeted remedial training	72.4%	8.0%	13.9%	5.7%
Accreditation schemes	81.0%	5.7%	12.2%	1.1%
CPD	85.8%	5.4%	8.8%	0.1%
On-the-job learning	95.6%	1.6%	2.4%	0.3%

Respondent groups differed widely in their views concerning the reliability of revalidation as a means of ensuring competence (Table 5.3). Over 75% of law students responding, but just over a third of barrister respondents, perceived revalidation to be reliable. The relatively large barrister sample goes some way to explain the large divergence of views between the groups. Though the Bar generally displayed greater scepticism than other professions across the range of activities, nowhere was this more marked than in the context of revalidation.[16] The responses of other professional groups are largely consistent.

5.117     There is limited evidence of actual impact or reliability of re-accreditation. Such evidence is primarily from medical practice and appears to support the view that re-accreditation has at least some positive impact. A systematic review of 29 studies reported in 11 articles showed statistically significant positive correlations between re-accreditation and better patient outcomes in 16 of those studies (Sharp et al, 2002). A number of subsequent ‘well conducted studies’ have also concluded that re-accreditation correlates with higher quality care (see Sutherland and Leatherman, 2006).

 

Table 5.3: Perceived reliability of revalidation in ensuring competence

Weighted (Barristers, Solicitors, CILEx members, and Weighted Average) and unweighted (All Respondents).

Revalidation: regularly scheduled examinations or other tests to confirm that legal professionals are aware of recent developments in their field of practice, and remain capable of working to the expected standards

	Missing	Completely Unreliable	Unreliable	Somewhat unreliable	No effect	Somewhat reliable	Reliable	Completely reliable
Barristers	2.3%	19.0%	14.1%	11.3%	19.6%	17.0%	14.5%	2.3%
Solicitors	1.5%	6.2%	7.7%	6.2%	14.5%	27.2%	26.5%	10.2%
CILEx members	1.2%	4.9%	4.9%	7.4%	14.8%	27.2%	29.0%	10.5%
Weighted Average	1.6%	8.5%	8.2%	7.7%	15.7%	25.0%	24.8%	8.6%
All Respondents	2.2%	8.9%	8.2%	8.8%	14.6%	25.4%	24.3%	7.7%

 

Analysis and conclusion

5.118     CPD and re-accreditation offer two ways of achieving similar ends. Both are mechanisms for assuring a degree of continuing competence in the legal services workforce. CPD requires monitoring, either at an individual or entity level, but does not require an assessment of competence – continuing competence is inferred from the performance of activity. It may or may not be mandated against specific competencies or outcomes. Re-accreditation does require some evaluation or assessment of each individual practitioner. It tends to be competence-based, reflecting the range of actual work activities undertaken. It is therefore more direct, intensive, and demanding of resources.

5.119     CPD has a reasonably long but not entirely happy history in the legal services sector. It has been rather overlooked in terms of the LSET system as a whole and the consequences of that neglect have been outlined. Re-accreditation remains largely untested in a market-led professional environment. CPD has a level of acceptance in most of the professional groups; whereas re-accreditation is not necessarily well-understood and is a source of concern. As approaches to assuring competence, the evidence for both has its limits, and the necessity of either will depend on other elements of the LSET system, and the strength of the market itself as an arbiter of competence. The development of CPD or re-accreditation will need the support of the regulated community to succeed. At this stage, the research team does not consider that a strong case has been made out for a move to a universal re-accreditation scheme, for the following reasons:

• Any further development towards re-accreditation needs to be considered in the context of other recommendations in this report, particularly the need to reform CPD. It is notable that CPD is a key component of most modern professional revalidation schemes, and therefore a logical pre- (or at least co-)requisite to any move to re-accreditation.[17] Key components, such as systems of personal development planning need to be put in place; there are also risk issues around the use of tools like critical incident reports, which would not be privileged, and might therefore be vulnerable to exposure in litigation for professional negligence.

• A number of proportionality issues need to be considered. First, there appears to have been little formal analysis in the public domain of the (additional) cost burden re-accreditation may impose on professionals operating in a market-based environment. Secondly in a sector like law, where there is a significant proportion of sole practitioners, there are practical challenges in creating an appraisal-based model. Unless self-appraisal is permitted, some form of external system would need to be developed.[18] Thirdly, unlike medicine which operates in a quasi-market, a proportionate risk-based approach needs to take account of the extent to which market mechanisms, in at least some parts of the sector, may limit or obviate the need for additional measures. This may point to the need, as the LSCP acknowledges, to develop a more nuanced activity-based approach to accreditation rather than a universal scheme.

• Consequently, in the absence of a move to a universal scheme, additional work also needs to be undertaken to assess areas of risk where re-accreditation might be appropriate and proportionate.[19] That would seem to be better progressed in conjunction with any work on activity-based authorisation.