CPD: compliance, competence or development?

I attended the Bar Standards Board’s Clementi Debate on 26 May.  The subject was whether the education and training of lawyers in England & Wales is fit for purpose.  The content and debate, however, were more narrowly focussed on the fitness for purpose of continuing professional development (CPD) for barristers.  It seems to me, though, that the issues are of broader application and importance.

I don’t need to rehearse here the content of the presentations.  Thankfully, not all speakers started from an assumption that the present approach was fit for purpose.  What disturbed me was my own growing sense of unease through the evening – for reasons I couldn’t initially pinpoint.

All present seemed to agree that CPD was ‘a good thing’, with its implicit consequence that lawyers who undertook sufficient and relevant CPD would be (and were) better practitioners.  I would not dissent from that proposition – even if we might (and the panellists did) differ on the meanings of ‘sufficient’, ‘relevant’ and ‘better’.

What the Debate did not address, despite some suggestions that it should, was the public interest in regulatory intervention in CPD.  It is a regulator’s function to determine whether or not a practitioner is competent to practise.  It might even be their function to require CPD to be undertaken.  But how prescriptive should that requirement be?  And in whose interests is the intervention made?

The current approach is to require a certain number of hours to be undertaken (the proposal for the Bar is that from January 2013 this should rise to 24 hours a year).  My sense of the meeting was that all agreed that a ‘one size fits all’ approach was not sensible, because the nature of practice changes over time, as do personal development needs.  I must be missing the point, though, because it seems to me that a universal requirement for 24 hours a year is a one-size-fits-all requirement.  So the ‘sufficiency’ proposition appears to be on shaky foundations if framed in terms of an input (hours) rather than an outcome (competence).  But at least a minimum number of hours makes compliance easy to assess (for the regulator and the regulated) … even if it actually fails to assure continuing competence.  That might explain part of my unease.

There is clear evidence from CPD providers – and it has changed little during this country’s 25-year experience of professional CPD – that, as the CPD year-end approaches, lawyers will attend (in body, though rarely in mind or spirit) any CPD event that will get them over the hours threshold.  The content can be entirely irrelevant (to competence); and the behaviour (in making the choice and in not being truly ‘present’) is not what one might expect from a professional.

Some maintain, against this background, that CPD is fit for purpose.  That begs a fundamental question about what the purpose is.  The reality in the circumstances I’m describing is that the CPD obligation has achieved compliance, but not competence or development.  Compliance without competence or development strikes me as a rather sterile objective. (It might be true that education is never wasted – if, in the circumstances I assume here, there has been any; but that is still not necessarily the same as competence or development.)  The relevance requirement therefore also lies on some shaky foundations.  My unease mounts.

I confess to admiration for the New Zealand approach (thanks to panellist and BSB board member Matthew Nicklin for this): a requirement in the code of practice that a practitioner “must undertake the continuing education and professional development necessary to ensure an adequate level of knowledge and competence in his or her fields of practice”.  What a refreshing approach: treating practitioners as responsible professionals, able to make their own judgement about sufficiency and relevance – and being willing to be judged and held accountable after the event (on the basis of competence demonstrated, or not) rather than being told before it to satisfy some arbitrary input proxy (hours spent).

So, does this sometimes insufficient and irrelevant process nevertheless produce ‘better’ lawyers?  Of course it might.  But I’m not sure that this should be the objective for a regulator (as opposed to a representative body).  Surely, regulators, through regulation, should confine themselves to securing minimum levels of competence (which might nevertheless be set at high levels) rather than pursuing aspirations based on relative competence beyond that minimum level?  After all, regulation is an intervention in otherwise private activity, and such intervention should in my view be justified in the public interest.  What, then, is the public interest here?  My conclusion would have to be that it is to protect clients from incompetent practitioners, and to achieve a broader confidence of the public in the competence of those authorised to provide legal services through maintaining standards for authorisation and removing those practitioners who fall below them.

My contention, therefore, is that the regulator should assure competence.  This is in part an issue of the qualification and entry requirements sufficient for becoming an authorised person under the Legal Services Act.  CPD has nothing to do with this.  The regulators must then over time be satisfied that a practitioner is suitable to remain an authorised person.  Is CPD relevant to this?  Yes of course; but only, I think, in a sense more limited than current CPD requirements assume.

If a practitioner is the subject of a serious complaint about competence or service, or is found to have been professionally negligent, there must be questions to be asked about their competence and the public interest in them remaining able to practise.  I would regard it as an entirely relevant question then to ask whether or not they had undertaken any CPD to maintain the currency and relevance of their competence, and to explore in detail exactly what CPD they had done and when.  That should legitimately inform a regulator’s judgement about the extent of culpability in relation to the professional lapses complained of and the assessment of continuing fitness to practise.  But that judgement will be exercised in the specific circumstances of a particular complaint, at a certain point in time, and in the context of the practitioner’s performance at that time and in the period leading up to it.

I’m led to the conclusion that the true value and utility of CPD as a regulatory obligation can only be judged in retrospect, and that to seek to prescribe in advance (especially by something so crude as an input measure of time spent) misses the point.  The public interest requires an assurance of competence at the point of authorisation, and action to remove from practice those who subsequently fall short.  It is not well served by universal and broad-brush requirements that ensure compliance rather than competence.

In the end, therefore, I’m drawn to the New Zealand approach.  Every lawyer should be under a regulatory obligation to maintain their competence and fitness to practise.  The New Zealand approach requires that.  Of course, CPD should be encouraged: development beyond the minimum required to practise should be a lifelong quest for any self-respecting professional.  Personal aspiration and motivation will drive this, supported by the professional representative bodies.  I question, however, whether the regulator should be focusing on professional development beyond the minimum competence required for practice.

The regulator should certainly remove from practice those who have been demonstrated not to be up to the required standard of competence.  That is a specific judgement required after the event in light of a range of circumstances, including whether ‘sufficient’ and ‘relevant’ CPD had taken place.  Disciplinary proceedings against those who have not undertaken enough CPD hours (failure to comply) does not actually assure their continuing knowledge and ability (failure of competence) – and probably costs the professions something in practising certificate fees to no great avail.

My unease therefore relates to:

  • the confusion of compliance with competence and development; and
  • regulators’ focus on achieving some abstract and relative notion of ‘better’ when their attention should be directed to removing the incompetent and unethical from practice.

Consequently, CPD should relate to competence; it is not secured by compliance with an hours threshold, and development beyond the required minimum level of competence is a personal and relative matter.  Whether someone has fallen below that minimum level cannot be assured by CPD, and can only be judged confidently in retrospect.

My conclusion is that the scope for prescription of CPD requirements is therefore more limited than current approaches appear to acknowledge, with the result that regulatory intervention relating to CPD goes further than the public interest requires.

6 thoughts on “CPD: compliance, competence or development?

  1. Pingback: It’s time for some CPD! | Stowe Family Law LLP

  2. I find myself in sympathy with Richard Parnham’s views. If the public interest is paramount then the record of the lawyer (or whatever professional) should be open to the public gaze. Compare surgeons’ success on heart surgery re Bristol. Some idea of what a lawyer specializes in and what they do to maintain their knowledge in that area could easily be published for clients which would both satisfy the public interest and help deal with information asymmetries. In that respect the NZ model of CPD would be effective.

  3. If lawyers are, as they claim, experts in law, then why shouldn’t their ongoing competency be tested – and disclosed to any potential client?

    With that in mind, is there any reason why the following regime could not replace CPD?

    All lawyers should be asked to designate one (or more) areas of practice they wish to specialise in. (If they regard themselves as generalists, the onus should be put on them to prove their expertise across multiple practice areas).

    For each of their designated specialisms, each lawyer should be subject to a) periodic (perhaps online) testing of their knowledge of current law and practice and b) a peer review assessment of competency, based on a simulated scenario within their chosen practice area.

    Before they are instructed on any matter, they should be obliged to disclose their latest scoring for that particular practice area (and how their scoring relates to their peer group) to any potential client.

  4. Stephen

    I think the whole idea of CPD is flawed. As someone who attended hundreds of hours worth of CPD courses, I cannot recall one single course, or speaker, that changed the way I did something, made me think differently about my role or excited me about the profession.

    I tried to tailor the CPD courses to fit my areas of work but that was not always possible. As a consequence, I ended up attending meaningless courses for the sake of getting my 16 hours. Sometimes the courses were chosen because they were cheap or easily accessible. Hardly a recipe for ensuring that those in practice were MOTd for the forthcoming year.

    I don’t know the NZ model, but it strikes me that there should be a shift in thinking about the whole business of CPD. The stumbling block is of course that most CPD courses are quite expensive and you can see a backlash from the profession if the Regulator comes along and says you have to complete X [more than the current requirement] number of hours of paid courses, with the balance being made up in some other contrived way.

    CPD should be inextricably linked with a personal development plan for every lawyer. In other words they should indentify the areas where they feel they are weakest, need the most help or have an interest. There needs to be a move away from the one size fits all and ultimately the test should be whether the course has added to their personal and professional development as measured by them and their peer group.

    The public should also understand the basis of CPD. It should perhaps be underpinned by a Qualitative measure.

    Thanks for raising the issue, and let’s see what happens next.

    Julian

  5. Excellent post – I could not agree more. I am a solicitor in private practice and the CPD regime simply doesn’t work. It certainly doesn’t assure competence, and does little to ensure lawyers actually engage in life long learning. Instead there is the unedifying spectacle of everyone rushing at the end of the training year to collect hours. And yet it is not just the regulator at fault – firms and individual lawyers tend to regard CPD as just one more box to be ticked (and one that costs money, so not to be encouraged).

  6. I wholeheartedly agree. New Zealand approach would get my vote.

    The current system does not work. From my point of view as a 20 year qualified family lawyer up to the major changes in the court rules this year as a family lawyer I could remain competent simply by reading the law reports and journals (frankly nothing really has changed in black letter family law for all my time in practice save for the Children Act.) Yet I still have to turn up dutifully to hear a lecture from someone less experienced than me with no benefit.

    Is the CPD requirement there to provide income for the CPD providers?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s