The Solicitors Regulation Authority’s (SRA) preferred alternative to the continuing professional development (CPD) system is too hands-off to be relied upon, according to the Legal Services Consumer Panel.
In its response to the SRA’s consultation Training for tomorrow – which ends today – the consumer body suggested that rather than a purely ‘outcomes focused’ scheme, it would be better to have one that required solicitors to provide evidence they had planned, recorded and reflected on development activity.
In the consultation, published in February, the SRA said it aimed to abandon the ‘tick box’ exercise of the current regime and put forward three options. Option one would remove prescription and instead rely on existing provisions requiring regulated entities and individuals to deliver competent legal services, and train and supervise their staff. It would be for the entities and individuals to decide how these outcomes are achieved.
Option two retained a focus on the regulator checking that CPD had been done, but with flexibility as to how an individual learned and reflected on it, while option three was a modified hours-based scheme.
The SRA backed the first option, arguing it was “a proportionate and effective means of achieving our regulatory objectives”.
The consumer panel warned that it was too hands-off and relied too much on the law firm. “Under the proposals a failure to carry out CPD could potentially only be highlighted if poor-quality work was discovered at the entity level… Ultimately, though, CPD is a personal commitment and this may get lost in a system where it is no longer obligatory or has to be documented.”
It added: “The fragmented nature of the solicitors’ market and lack of track record in training support at entity level does not give us confidence in a strategy focusing so acutely on entities at this time.”
The panel was not confident the SRA could adequately monitor whether poor-quality CPD was being delivered. “The nature of legal work means problems may come to light a long time after the work is completed or remain entirely undiscovered…
“The effectiveness of the SRA’s proposals hang on the SRA knowing when firms are not providing legal services of an appropriate standard, but we need far more detail about how this information will be gathered. Although input measures such as entry requirements and CPD are imperfect measures of quality assurance, if regulation of CPD is reduced, the need for alternative indicators of quality becomes greater still.”
It said it was “disappointed” to see a lack of SRA support for reaccreditation in “higher risk areas of law”, such as will-writing, probate and estate administration, and asylum advice.
The consumer panel argued the SRA’s middle option was preferable for the time being. “This retains the advantages of a flexible system based on outcomes rather than inputs, similar to option one. However, option two would require solicitors to show evidence of planning, recording and reflecting on their development activity.”
It continued: “Although the SRA is concerned about the level of prescription regulations might have, we think it should be possible to set this at a high enough level which provides scope for different and innovative approaches that are consistent with the basic requirement for solicitors to reflect, learn and record what they have done.”
A benefit of the system would be that there would be no requirement to report information to the SRA. However, the panel said, “we would expect the SRA to check CPD records as part of its supervision regime”.
The panel said it was clear that compliance officers for legal practice had ultimate responsibility for CPD compliance within their firms.
It called for “tough sanctions” where breaches of CPD regulations were discovered and this should be stated explicitly in the regulations.
See blog: Putting in the hours