ABS countdown | Demonstrating ongoing fitness to practise

The Legal Services Board consumer panel caused a stir recently with its radical response to the Legal Education and Training Review's call for evidence. Most attention was paid to the notion of all lawyers being reclassified for training purposes as 'regulated legal advisers'. However, a perhaps more significant element to the panel proposals was the idea that all lawyers should be subject to 'revalidation', to justify their ongoing competence to practise, as a condition of maintaining their practising certificates. Few would disagree with the underlying assumption that initial qualification does not offer any certainty of career-long competence and individuals' skills deteriorate over the years.

The idea may be greeted with the same enthusiasm as that of retaking the driving test, and one might be tempted to dismiss it as an attempt by a beleaguered panel to justify its existence. But perhaps the proposal is not as revolutionary as it might seem. Does it not boil down to the need for a more effective CPD system? There is general acceptance that the current system of CPD is not fit for purpose, and the same criticism can be made of other professions. Regulators, including the SRA, tend to pay lip service to the requirements without doing too much to enforce them. The hours of CPD are not much geared towards relevant areas of practice or skills and the consequences for failing to achieve the requisite hours tend to be minimal.

Perhaps surprisingly, an exception to this generalisation is the Financial Services Authority, which demands that firms' training and development policies should be linked to personal development plans and key performance indicators for all staff. The plan confirms the career direction of the individual and the KPIs monitor progress and take account of such issues as client complaints. Training is approved as providing a suitable basis for improvement within this ?framework, and assessments of completed training are collated and analysed for quality and effectiveness, with the conclusions fed back into the system for the benefit of members of the firm as a whole. Such processes are part and parcel of the requirement of outcomes-focused regulation that firms must adopt and implement effective management systems and controls, and they are becoming common currency among regulators.

So, how might revalidation work? The General Dental Council is introducing revalidation in 2014 and the General Medical Council (GMC) is bringing its own scheme into full effect later this year. Doctors will need to demonstrate to the GMC, normally every five years, that they are up to date with their knowledge, fit to practise and complying with the relevant professional standards. All licensed doctors have a designated body and a 'responsible officer', who makes a recommendation to the GMC regarding revalidation following an appraisal process. Doctors need to maintain a portfolio of supporting information drawn from their practise which demonstrates that they are continuing to meet the applicable principles and standards. The GMC then carries out a series of checks to ensure that there are no concerns about the doctor in question. If all is well then the doctor is revalidated. If there is a problem the GMC will make an assessment of the doctor via its fitness to practise procedures before the licence is put at risk.

Last resort

The consumer panel believes that the revalidation process should be objective and based upon actual performance, with the lawyer's performance independently evaluated by a third party. It is also suggested that if lawyers 'repeatedly cannot demonstrate they are competent' then they should lose their right to practise. The panel wants this to be a last resort rather than a cull, rather like the GMC scheme. Similarly, the revalidation would also include a portfolio of evidence such as orthodox CPD, appraisals, peer reviews, complaints and regulatory history.

The panel has suggested that revalidation should be prioritised in areas where 'lawyers are separately authorised for higher quality-risk activities'. The lower-risk areas would no doubt follow once the higher quality-risk areas have been deemed successfully improved. This is consistent with the initial steps being taken by the Law Society to finalise a reaccreditation structure across all its accreditation schemes and the Quality Assurance Scheme for Advocates will require revalidation every five years.

It seems clear, though, that a major part of the answer to the issue of ongoing competence lies in the hands of practitioners, by taking a more structured and disciplined approach to the question of post-qualification training. Physician, heal thyself!

Stuart Bushell is director of SIFA Legal (www.sifalegal.co.uk)

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