Assuring competence through supervised practice and CPD

6.60     LSET must enable both the initial competence of those entering the regulated sector and also their continuing competence throughout their working lives. Professions historically have tended to focus primarily on a combination of initial classroom training and post-hoc legal or disciplinary action as regulatory guarantors of competence. There has been a growing recognition that this no longer suffices. This section considers how supervised practice, acting as the bridge from initial to continuing competence, and CPD – it if can be focused more on the purpose of education, regulation of training environments and audit procedures – can better support and guarantee competence.

Supervised practice

6.61     Supervised practice – in the sense of a requirement for a period of workplace learning whilst under training – is a universal feature of the regulated legal services sector. Respondents who commented on this aspect of training were almost universally of the view that some element of supervised workplace training must be retained, yet it performs a varied and sometimes uncertain role in LSET, and experience and quality of supervision remain significant issues for some.

6.62     Key issues for regulation are:

• lack of clarity regarding the purpose of workplace learning and its relationship with classroom learning; this is linked to
• failure to specify outcomes for workplace learning, and the lack of proper procedures for signing-off achievement;[1]
• over-prescription of training environments in some professions;
• lack of effective audit procedures.

Purpose and outcomes

6.63     Where purposes and outcomes are not clearly prescribed, there is a greater risk that training will be ‘random’ (Sherr and Harding, 2002:5) and of uncertain quality, and that workplace requirements are simply time served.

6.64     Specifying outcomes will not necessarily enhance or guarantee the quality of training, unless outcomes are sufficiently specific to be measured, and are referenced and ‘assessed’ as part of the training. Both IWBL (2011) and BMG (2012) reports on the SRA’s WBL pilot independently indicated that WBL provided a more rigorous and more clearly evidenced pathway to competence than the traditional form of training contract. WBL pilot candidates who were employed as trainees reported having to do more work and meet higher levels of evidence than colleagues on standard training contracts. Although initially this was a source of resentment, by the second year of the scheme they were generally more enthusiastic about the WBL approach. Their confidence had increased, they felt they had achieved more than colleagues, and were better able to evidence those achievements (IWBL, 2011). There was also some indication from the reports that it empowered trainees, particularly paralegals, to request development opportunities because they could point to outcomes they needed to meet.

6.65     Across the current LSET system approved regulators are not always explicit about the specific functions of the workplace element of training, how it relates to other elements of training, and what outcomes are to be achieved specifically from workplace learning. For example, the BSB pupillage checklists and portfolios focus on four core ‘skills’ – the rules and etiquette of the Bar, advocacy, conferencing and negotiation, and legal research and drafting. Both the SRA WBL pilot and the CILEx Competency Framework involve core outcomes in respect of eight areas:

Table 6.1: SRA and IPS work-based learning competencies

 

CILEx Competency Framework	SRA WBL pilot
practical application of the law and legal practice	application of legal expertise
communication skills	communication
client relations	client relations
management of workload	business awareness
business awareness	workload management
professional conduct	working with others
self awareness and development	self awareness and development
working with others	professional conduct

 

6.66     Most of both sets of competencies represent generic professional skills. Some particular points are, however, worth highlighting:

• Whilst core, technical, knowledge is obviously critical to the professional role, there is some evidence of a failure adequately to address and assess the skills of actual practice (Sherr and Harding, 2002), particularly core communication and client relationship skills. The relationship to the workplace experience can be challenging in some practice contexts where there will be limited client contact in the training phase,[2] in which case outcomes may need to be sufficiently flexible to allow for the more incremental development of these skills through initial and continuing professional development.

• At the same time it is important to avoid a proliferation of outcomes at this stage, particularly in environments where trainees may still be undertaking substantial amounts of ‘classroom’ learning. Even where classroom training had been completed, a similar point arose in the SRA WBL pilot where there were concerns that it was difficult to evidence the number of outcomes specified over the duration of the period.[3]

• Much depends on the quality of supervision which can be variable, as evidence from most of the regulated groups attests, even where classroom learning and workplace experience occur in tandem. The quality of supervision and of mentoring is crucial to the value of initial workplace learning as a site of ‘legitimate peripheral participation’ (LPP) (Lave and Wenger 1991; cf Ching 2012). LPP describes how, by directly observing and engaging with the practices of experts, newcomers come to understand the broader context of their work, and become socialised into the values and ethos of the (professional) community.[4] They also develop abilities to assess how well they are contributing, and hence the means for self-evaluation.

• The evaluations of both the SRA and IPS pilots (IPS, n.d.a) of a work-based learning scheme also add to the body of evidence which indicates that portfolios and personal learning and development plans make a significant contribution to professional learning. The use of such tools is recommended, linked to specific training outcomes, to assist trainees to complete the educational picture. Where used these should not be overly prescriptive in form. They should be part of a continuing evaluation or appraisal process, even if not formally assessed.

• If a robust outcomes approach is developed, it is advised that approved regulators should consider moving to a fully or primarily outcomes-based approach to periods of supervised practice, such that qualification is permitted on achievement of all the necessary outcomes without regard to time served. It is acknowledged that there may be an argument for retaining, at least as an interim measure, a normal minimum period of service under training. In this context it is crucial the approved regulators have an appropriate audit mechanism in place to ensure that outcomes are properly evidenced and signed off.[5]

Training environments

6.67     Training regulations in respect of the approved professions range from a high level of prescription, through extensive but non-binding guidance to very little prescription. It is recommended that approved regulators review their regulation and quality assurance arrangements for workplace learning and, in particular, evaluate their appropriateness in the light of the regulatory objectives and the development of a more multi-disciplinary and complex legal services environment.

6.68     It is important that the regulated community is clear where responsibility for quality assurance rests, and that regulators have procedures and controls in place to assure that training quality is maintained. Where regulation of training is entity-based, the entity should be able to demonstrate the existence of an appropriate training strategy for its regulated workforce and that proper systems for the supervision of trainees are in place, ensuring an appropriate balance between work and training.

6.69     Subject to such safeguards it is proposed that there is scope to revisit:

• Flexibility of supervision: Current regulatory constraints on who can supervise are an issue for some, notably in the in-house context for the Bar[6] and for solicitors both within firms[7] and in-house. Government lawyers also highlighted the complexity of wanting to have a barrister supervise a training contract. Such issues are likely to arise increasingly in the context of ABSs.

• Opportunities to provide training outside approved training organisations: There was widespread agreement that WBL provided a more flexible approach enabling non-traditional candidates to qualify as solicitors. This was particularly valuable to organisations that did not offer training contracts or could not offer training contracts in the current economic conditions. This was echoed in the LETR research data:

It seems to us that greater flexibility in the routes to qualification as a solicitor are of vital importance not just for diversity and social mobility but also for ensuring high-level legal services professionals in non-commercial areas of law. We recognise that if the training contract remains the ‘only’ way to qualify as a solicitor (CILEx route noted), it seems inevitable that the number of qualified solicitors working in non-commercial areas will continue to decrease over time given that training contracts are increasingly concentrated around the ‘Top 100’ commercial law firms.

LETG response to Discussion Paper 02/2011

6.70     A WBL approach, requiring demonstration of achievement against outcomes has been adopted as the approach to qualifying employment for CILEx members. By contrast, some SRA WBL pilot solicitors’ firms were not yet ready to see WBL replace the existing training contract model in its entirety. There are clearly challenges in providing a directly equivalent experience, particularly in contexts where it may not be possible to provide the necessary range of practice experience to meet the current requirements for a training contract. At a minimum, some of the SRA WBL tools could be brought in to enhance the consistency of training under the traditional training contract in line with the recommendation of this report that day one outcomes should be adopted. Work-based pathways should also be available as an alternative means of achieving those outcomes.

Audit procedures

6.71     If workplace learning is to be effective, there needs to be a realistic method and likelihood of audit. In a number of contexts it is not clear that such powers are utilised (eg, by the SRA), or exist to a significant extent (eg, under the IPReg schemes). Audit requirements should not be too onerous, but must include the power to access or call for records and make random visits if required. Workplace learning in this context could be usefully developed as part of a system of lifelong learning, linked to CPD.[8]

Continuing professional development

6.72     Continuing education and training received barely four pages in the Ormrod Report (1971), and in Marre (1988). Ormrod and Benson (1979) saw continuing education very much in knowledge terms. The Benson Commission (1979: para 39.89) asserted:

Persons practising a profession need to keep abreast of changes and it is the function of the governing body of a profession to ensure that every member is properly equipped with up-to-date and comprehensive knowledge.

6.73     Although it provided a ground-breaking analysis of the skills needed to be developed across academic and vocational education, the Marre Committee too largely endorsed this knowledge-based view of continuing education (see Marre, 1988:139). ACLEC (1997:15), by contrast, emphasised a broader conception of competence, linked to ‘reflection designed to clarify and enhance the effect of practical experience’. Whilst CPD has evolved in legal services since 1997, the sector arguably remains behind best practice,[9] with many practitioners resistant to the need for CPD, and tending to equate CPD strongly with external courses and lectures.

6.74     Active practitioners must be under a general obligation to maintain currency in the areas of work that they hold themselves out as practising. Chapter 5 also recommended compulsory CPD on ethics and equality and diversity plus appropriate training for management roles. This section will focus on matters of process, regulation and audit of CPD.

6.75     CPD signals the professions’ commitment to on-going competence as numerous international statements have emphasised[10], and recognition of the requirement to meet the needs of clients and consumers. Focus group discussions highlighted some sophisticated, well-developed and well-resourced career development schemes operated by employers, as well as bespoke specialist programmes delivered by membership and affinity groups. By contrast, generic regulatory CPD schemes have tended to lag behind best practice. At the same time, as Chapter 5 of the Literature Review acknowledged, there are significant challenges in seeking to create a fair CPD scheme that is proportionate in its approach and provides value to members of the professions, as well as reassurance to the public. The following principles emerged from the research as significant to respondents in reforming the CPD system.

Flexibility and relevance

6.76     Flexibility and relevance should sit together. Respondents were generally keen to ensure that any CPD scheme should give them (more) flexibility to undertake activities that inform and enhance their practice rather than rushing to do any activity to make up the points or hours required:

There must be a tailored and focused CPD system, which gives solicitors the flexibility to drive their own learning and development, but the structure to ensure that they get as much out of the system as possible. Solicitors need to match their CPD to the needs of their work and their career or to support retraining if required.

Law Society response to Discussion Paper 01/2012

The current scheme for CILEx members (to 2014) in this respect is interesting, since it requires members to do a minimum amount of CPD within their declared specialist field.

6.77     It is questionable how far any system should seek to police individual relevance, because that would limit choice and flexibility. Respondents’ views were highly polarised between those who thought choice was important to enable practitioners to respond to market changes, or to facilitate a return to practice, perhaps in a new area of work, and those who were concerned that it simply allowed people to manipulate the system:

Now we think your CPD could be anything that you need at any particular point in your profession. So if Ms X having done 5 years of litigation decides that she wants to go into mediation, her mediation course should count. And if coming back from having a baby, she wants to relearn her basic skills that should also count. And if Ms. Y suddenly wants to do, God forbid, criminal law, she should be allowed to do so.

Barrister

It should not be possible to earn CPD points from attending any training course available whether or not it is relevant to the person undertaking the training simply to gain the required number of points at the end of the CPD year.

LawNet response to Discussion Paper 01/2012

 

You want holistic lawyers, however much practices specialise… CPD should be broader and there should be no restriction if I chose to go to a conveyancing course for a few hours… the law is a fast moving target in any event and I think that’s useful.

Solicitor

Doing vs learning

[I]f I look at Lawtel because I want to see what the recent cases have been of general interest… I get a CPD point for doing it but if I look at Lawtel because I want to see if there’s any particular cases that have been decided at the moment germane to a particular point I’m writing an opinion on then I can’t count that – it’s just ludicrous.

Barrister

 

The ‘unaccredited hours ‘ aspect of the current scheme could be extended to allow the updating reading/research which all conscientious solicitors do (including reading the internal updating e-mail many firms produce as well as reading journals etc) to count though perhaps with a consequent increase in the required annual hours total.

CLLS submission

6.78     Conventional CPD schemes struggle with how far the informal learning that takes place as part of everyday professional activity ‘counts’. The conventional logic suggests what a practitioner normally does and gets paid for doing, is not seen as contributing to development, and therefore should not ‘count’.

6.79     There may be a case for distinguishing entirely incidental learning from that which is organised as part of a conscious process of self- and career-development, properly reflected upon (non-formal in some typologies as opposed to informal learning). At the same time, theories of workplace learning undoubtedly acknowledge the value and significance of informal learning (see, eg, Cheetham and Chivers, 2001), and to disregard it underestimates the extent to which professional work, thoughtfully and competently done, frequently involves acquisition and deployment of new knowledge, skills and strategies. A sensible intermediate position would be to suggest that the appropriate boundary for CPD purposes is such that claims for informal learning may be permitted, so long as they can be evidenced by some further activity or process of reflection.

Input vs output/benefits approaches

An hours based/points only based CPD scheme is a waste of time. We all see people going on totally irrelevant courses just to get their points. There should be some comment/assessment by your employer that you are competent and capable in doing your everyday job. This surely is where competency and ability to do what you are employed to do should be judged.

CILEx member (online survey)

6.80     The weaknesses of historically dominant ‘input’ approaches have been rehearsed in Chapter 2. The possibility of moving to an ‘output’ or ‘benefits’ model has been explored in a number of recent reports and approaches that reflect current thinking on CPD. The essence of a benefits model was summarised in evidence to the research team by the LSCP.

Alternative models of CPD, such as ‘benefits models’, attempt to create a culture of individuals leading their own development programmes instead of being told what to do by their employer or regulator. The onus is placed on lawyers to identify personal objectives and provide hard evidence to demonstrate delivery against these objectives on an annual cycle. The corollary is that these increased freedoms are matched with tougher sanctions in the event of non-compliance, with code of conduct obligations providing a hook. Regulators too should be held to account for the success of their CPD regimes by a requirement to publish a report showing progress against performance indicators.

LSCP response to Discussion Paper 01/2012

6.81     As noted in Chapter 2, there has already been significant review of CPD schemes in England and Wales. IPS (2012a, 2012b) is progressing with its own outputs-based system based on activity reviews, while the BSB has consulted on its proposals for a hybrid, cyclical, approach, which draws both on inputs – a proposed increase in hours across a broader range of activities than before – and also outputs, evidenced by prior planning and subsequent implementation of what has been learned, supported by a portfolio which may be inspected by the BSB (BSB, 2011a and 2011b). The review commissioned by the SRA (Henderson et al, 2012) has also proposed the development of a cyclical scheme, retaining an element of hours. This pattern is not inconsistent with recent activity in other common law jurisdictions.

6.82     In 2008 the Continuing Legal Education Society of Alberta in Canada launched what appears to be the first purely benefits-based scheme in the common law world (Law Society of Alberta, n.d.). It moved away entirely from a set hours approach by requiring lawyers to identify their own learning needs and create a personal CPD plan on an annual basis. The supposed strengths of the scheme were that it was:

• non-prescriptive;
• permitted (required) lawyers to take responsibility for their own learning;
• did not convey artificial or arbitrary messages about the sufficiency of a certain number of CPD hours or points;
• focused attention on learning activities that were relevant to practitioners at that time.

6.83     An initial review was conducted by the Alberta Law Society in October 2010, following completion of its second cycle of operation, and a second evaluation in 2012 (see Brower and Woodman, 2012). The scheme was widely regarded as a success but both reviews highlighted the need for changes that would ensure members were held accountable for developing, ensuring the quality of, and implementing their CPD plans and providing greater advice and assistance on how to plan and reflect on CPD needs.

6.84     The Alberta approach has not been followed by regulators in the other Canadian jurisdictions, which have tended to develop programmes using numbers of hours, at relatively low levels (around 12 hours) and with a wide range of permitted activities.[11]

6.85     By contrast the Law Society of Scotland in its revised scheme of 2011 has moved to more of a halfway house (Law Society of Scotland, 2011b). This scheme has retained a requirement for 20 hours’ CPD for solicitors, of which 15 must be verifiable; that is, the activity must have identifiable objectives and learning outcomes, and be supported by evidence that the learning took place and was relevant to the solicitor’s development. There are no prescribed learning activities, and solicitors must identify their own learning needs and construct an annual CPD plan.

6.86     The cyclical approach is also proposed by the New Zealand Law Society (NZLS) (2012), including:

• an annual CPD plan identifying learning needs;
• a record of CPD activity undertaken;
• self-defined learning ‘outcomes’ (here used to describe what lawyers thought that they learnt);
• reflections on future learning needs;
• a requirement of 10 hours per annum;
• a broad range of specified activities.

6.87     The NZLS proposal is notable in that, while it sets the hourly target low, this must all be verifiable activity; non-verifiable activity, which it defines as reading legal materials, listening to non-interactive audio materials or viewing audio-visual material, does not count. However, non-verifiable activity is recognised in the sense that it may be included in the CPD plan, and lawyers are encouraged to plan for up to 50 hours of such self-study per annum.

6.88      These examples indicate that there is some shift towards greater use of cyclical/benefits-led approaches, though schemes have also generally been reluctant to give up hours and cede control to the extent permitted in Alberta.

6.89     Discussion of the burdens of such approaches in the LETR research data is clouded by the unfounded assumption (particularly among responses from the Bar) that a move to outcomes or outputs necessarily involves some element of formal assessment and hence re-accreditation. As the examples discussed here demonstrate, this is not the case. The benefits were recognised in a limited number of more detailed responses:

The current inputs based model does not seem to promote the kind of activity that is beneficial in all cases. Whilst it is impossible to build a model that ensures that CPD will be valuable to all comers, a focus on what is being learnt from CPD, reflection on how to incorporate it into practice and planning for future activities, may all encourage a more productive culture. CPD has to be done in an effective manner; built in and reinforced over time and at a stretching level.

The Law Society believes that the key to effective CPD is to undertake it within a cycle of planning and objective setting in discussion with an employer or peers and reporting back on these to see what has been learnt, whilst reflecting on how this impacts the plan for the next cycle. In situations where this is not possible, the regulator must take direct responsibility for ensuring that a plan has been completed, and may take a further interest is ensuring that adequate reporting and reflection has been completed.

Law Society response to Discussion Paper 01/2012

6.90     Some respondents, particularly in-house and from the larger law firms, also discussed the potential for a more cyclical approach to create better linkages between appraisal and review systems and CPD, which they considered would be helpful.

Cost and availability

6.91     The need for any reforms to be sensitive to the costs of undertaking CPD was mentioned frequently, especially in the open response section of the survey:

[B]arristers incur a double financial whammy when they enrol on a CPD course – the cost of the course and the loss of income by taking time out of practice to attend the course. I have not seen any plausible justification for increasing the number of CPD hours for barristers.

Barrister (online survey)

My main concern is the cost of post qualifying courses particularly where the employer will not pay for their staff to attend. The quality and relevance of the course varies with the organisation delivering the training; finding good quality training at the right price comes with trial and error.

Solicitor (online survey)

6.92     A number of respondents highlighted the risk with current ‘input’ schemes that, where CPD is paid for by an employer, the employee may be pushed towards inappropriate or unhelpful CPD because it is available free or at a low cost, or has already been paid for:

The individual’s need for CPD to maintain their qualification, allied to the employer’s desire to spend as little as possible, combines to create a perverse incentive to ‘agree’ that CPD has been met even if a development event is not adequate to achieve on-going competency.

CILEx member (online survey)

6.93     Cost and availability are also a particular issue for the smaller professions:

The cost of post qualification notarial training and regulation must be proportionate to the modest income generated by most general notaries.

Notary (online survey)

[W]e … practise in cost law only, so… there’s only a very limited number of courses that are out there for … people to attend, so we’re a bit more of a niche market.

Costs lawyer

Conclusion

6.94     There is a clear case for liberalising what counts as CPD in some professions and moving towards more output-led approaches. Individuals and entities should have increased autonomy to determine their continuing learning needs, but also a greater obligation to demonstrate the personal value of what is learned. This would accommodate more informal learning, greater reflection, and ensure that CPD constitutes purposeful learning for all participants. It would reduce perverse incentives and reflect best practice within the sector without punishing the majority for the infringements of a minority. In some areas existing systems of authorisation may be too ponderous to adapt to changing needs, unduly burdensome and likely to drive up the costs of CPD. There is also a need to make more effective use of audit and sanctions to ensure that these professional obligations are taken seriously.

6.95     In summary, current best practice thus seems to indicate that:

• The adoption of predominantly cyclical or benefits-led models of CPD, requiring participants to plan, implement, evaluate and reflect annually on their training needs is increasingly the norm. A wide range of CPD activities may be permitted, including non-verifiable learning, though there are continuing debates about how much non-verifiable learning may ‘count’.

• Schemes may continue to prescribe minimum hours, but this should not be obligatory so long as the decision to move away from prescribed hours is considered justified on a risk-based analysis, and there is a mechanism for assuring that a sufficient level of intentional, meaningful learning takes place over the review cycle. Sufficient in these contexts means appropriate at that time to the needs of the learner, his/her clients, and (where relevant) employing organisation.

• Practitioners should be encouraged to demonstrate an appreciation of the role played by informal learning in their development, and to make the most of informal learning opportunities by converting them into structured learning activities. CPD schemes should not, however, enable practitioners substantially to satisfy their CPD obligations by reference to unstructured informal learning.

• All completed CPD activity for the cycle should be recorded, not just the activity required to comply with any minimum requirement.

• Regulators should support their regulated communities by providing initial training, guidance and tools to assist in maximising the value of the required CPD activity.

• Where this is feasible in resource terms, an online system should be created by the regulator for the submission of CPD plans and logs (where this is not already present). This system could be linked, where possible, to any learning portfolio or other records created as part of initial workplace learning. This type of online space thus provides a reviewable record of lifelong professional learning that can constitute a developmental tool in its own right.

• Supervision and primary audit of CPD plans may be delegated to the entity level. Provision should however be made for the annual random audit of CPD plans by the regulator, and for effective trigger powers to review CPD across an entity where random audit highlights reasonable cause to investigate.