Are you competent?

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31 March 2010

Posted by Neil Rose, Editor, Legal Futures

Quality control: what is the best way to ensure a lawyer's competence?

Competence testing is a delicate subject which legal regulators approach with considerable caution. It has been talked about – indeed, SRA chief executive Antony Townsend expressed his desire to move towards it when appointed in 2006 – but the fear with such schemes is that practitioners view them as a form of punishment, rather than being about professional development, maintaining high standards and reassuring the public.

If the experience of the medical profession is anything to go by, it will be a long, hard slog. The General Medical Council first proposed revalidation, as it is called in medical circles, in 2000 with the aim of the first doctors undergoing it in 2004. It finally begins next year.

However, those who support the concept for lawyers may welcome an independent voice such as Dr Dianne Hayter, chairwoman of the Legal Services Consumer Panel, raising it once more, even though the comments we report today are only her personal views and not, at this stage at least, those of the panel.

The argument is a strong one. This is how Alan Kershaw, chairman of ILEX Professional Standards – the regulator for legal executives – put it when he floated the issue after his appointment in 2008: “There is a general move across the professions to find effective ways that showing that, when someone is on a register, they are certified as fit to the job today – not when they qualified – and that is the important principle so far as I am concerned.”

When one hears tales of experienced conveyancers with nothing to do over the past year dusting off their law school notes and turning themselves into personal injury lawyers, one can perhaps see the point.

The question is how to do it. CPD is very much under the spotlight, with various professional bodies reviewing its effectiveness, and certainly Dr Hayter doesn’t think it delivers a sufficient level of assurance. Accreditation schemes with regular reviews could certainly be one method of certifying competence, but now that control of most of them have been passed from the SRA to the Law Society, that becomes a bit more complicated. The medical model involves in part doctors collecting and submitting evidence that they meet certain standards.

The lesson from doctors is perhaps that introducing accreditation for an entire profession in one go is a fearsome task. With the SRA and others moving towards much more risk-based regulation, perhaps the best approach would be to have a series of flags which, if raised by a practitioner’s conduct (such as his complaints record), would lead to an investigation by the regulator.

This is a debate that is only just beginning. The only thing one can predict for sure is that it will run and run.

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