Ends not means: scrutinising CPD

Magnifying glassCPD is a system of inputs that is completely blind to the outcomes, writes Matthew Nicklin. How best, then, to ensure that barristers are competent in the areas in which they practise?

When Continuing Professional Development (CPD) was first made compulsory by the Bar Council, it was the Bar’s first discernible quality assurance measure for consumer protection. The theory was simple. Practitioners were required to complete a designated number of hours of recognised activities designed to keep them up to the mark.

The current requirements for CPD have changed little since the Bar Standards Board (BSB) inherited them from the Bar Council, following the separation of regulatory and representative functions as later required by the Legal Services Act 2007. Established practitioners have to complete 12 hours of CPD (of which four must be for accredited activities). An annual declaration that the required hours have been completed must be made to the BSB by each barrister.

A review of CPD led by Derek Wood QC reported to the BSB in May 2011. It did not recommend any fundamental change to the hours-based CPD system. Instead, it was proposed that the number of hours should be increased to 24 each year, but with a relaxation of the activities that would count towards those hours.

Recent developments

Since the Wood Report, there have been two significant developments. The first is the cross-regulator review of legal education and training. The LETR Report is due to be published imminently and one of the issues on which it has received evidence and submissions is CPD. The second development is the promulgation of the Regulatory Standards Framework by the Legal Services Board. The framework requires frontline regulators like the BSB and the SRA to ensure that their regulatory arrangements are “consistent with the regulatory objectives, better regulation principles and best regulatory practice”. One of the key challenges for the regulators is to demonstrate that their arrangements are outcome-focused. First, rules which restrict the way in which barristers or other lawyers practise can only be justified if they are designed to support or promote one of the regulatory objectives in the Legal Services Act. Second, the rules themselves must be both necessary and proportionate to the regulatory risk that has been identified.

Failures of current regime

Assessed against this new methodology, in my view the current regime for CPD fails. The objective of any CPD scheme is to ensure that practitioners are competent in the services they provide. Almost by definition, a system which has at its heart a requirement to undertake a fixed number of hours of CPD is a regulatory intervention which is neither targeted nor proportionate. The number of required hours (whether 12, 24 or some other number) is arbitrary and indiscriminate. The one-size-fits-all model imposing an arbitrary number of hours on all barristers will, depending on their respective practice areas, seniority and experience, range from regulatory overkill to regulatory neglect. The existing system has been devised primarily for ease of compliance by the regulated and ease of enforcement by the regulator. The only outcome that is measured is compliance with the scheme itself. Sight of the objective of CPD and the public interest has been lost. It is a system of inputs (the means) that is completely blind to the outcomes (the end). Put simply, we have no idea whether the current CPD scheme is achieving the objective of ensuring that barristers are competent in the areas in which they practise.

Regulatory aim

Paragraph 701 of the Code of Conduct emphasises that barristers must not “undertake any task which he knows or ought to know he is not competent to handle.” The responsibility is that of the individual barrister to carry out this self-assessment. He will or should know whether the work he is being asked to do is beyond his competence. Taking on work that is beyond a barrister’s competence is unacceptable from a regulatory perspective because those who are exposed to the incompetence may be harmed and ignorant of the fact. Those exposed to risk start with the immediate client, but also include, depending on the situation, other litigants, witnesses and the public as a whole. It is a matter of an individual barrister’s professional duty to ensure that he does not take on work beyond his competence.

This is the regulatory aim which has to underpin any CPD scheme. To be effective, at its heart must be the same self-assessment. Each barrister must be trusted by the regulator to assess his or her CPD needs. The Wood Report recommended continuing an hours-based scheme because it was feared that the public would not have confidence in a scheme where the practitioner self-assessed. But a scheme of CPD which is premised on an assumption of avoidance by the regulated community is flawed and such an assumption will almost inevitably deliver a compliance regime which is disproportionate. Anti-avoidance measures have themselves to be targeted and proportionate to the objective. If it is to be effective in securing the outcome of ensuring competence to practise, a CPD scheme has to place the responsibility on the individual barrister to assess CPD need. The resources of the BSB can then be freed up from counting those who are counting hours and better targeted at measuring effectiveness and identifying areas of risk. CPD is not a stand-alone scheme. It has to be part of a package of measures designed to ensure quality.

Towards self-assessment

The Code of Conduct currently provides (in Rule 202) that a barrister may practise as long as “he has complied with any applicable requirements of the Continuing Professional Development Regulations”. This should be amended to cast the duty of assessment and compliance onto the individual barrister. Borrowing from the New Zealand Law Society Rules, the revised rule should be:

“A barrister 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”.

Instead of barristers declaring to the BSB, each year, that they have completed the mandated number of hours, the declaration would be one that acknowledged this duty and confirmed compliance.

In 2005, the Institute of Chartered Accountants of England & Wales moved away from an hours-based system in favour of a self-assessment model. It has a simple template. Reflect, act, assess, declare, evidence. Each year, the practitioner reflects on his or her training needs. S/he acts to devise a plan for the year. At the end of the year an assessment is made by the practitioner whether the goals have been achieved. A declaration is made to the regulator as to compliance and evidence of the steps taken is kept by the practitioner in the event of any regulatory review.

Proportionate compliance

The BSB would then move resources to a proportionate compliance regime. At its heart would be a culture not of catching people out, but supporting practitioners. It would be targeted to areas of greater risk (for example public access) or in response to specific evidence of risk. Coupled with a number of random checks, the profession would quickly come to recognise that doing no or insufficient CPD and simply ticking the box on the authorisation to practise form each year would potentially expose them to the risk of very severe penalties. A breach of the new code requirement would be treated as much more serious than the current fine-based scheme for failing to complete the required number of hours. Issues would also arise as to whether the individual’s historic declarations of compliance were or were not truthful.

A new outcome-focused approach to CPD delivers not only the benefits identified above, but it would remove the hugely contentious issue of CPD requirements for those who take career breaks, for example to have children, or those who work in ways other than in conventional full-time practice. The current system of requiring compliance with the mandated hours, but permitting waivers, is bureaucratic and burdensome both for the practitioner and for the BSB. Practitioners on career breaks – for whatever reason – will self-assess what CPD is required for the type of practice they intend to undertake during the break and on their return. That is not to say that the result of that self-assessment will necessarily be that the practitioner needs to do less or no CPD. Dabbling in practice, for whatever reason, is likely to need more not less CPD. But it is practitioners, not the regulator, who are best placed to assess that. At least in the first instance, they should be trusted to do so.

Matthew Nicklin is a barrister at 5RB and a barrister member of the BSB, member of the CPD Working Group and Chair of the Standards Committee of the BSB. The views expressed are his own and are not necessarily those of the BSB.

Matthew Nicklin, 5RB