Melissa Hardee considers where the responsibilities lie for compliance with the continuing competence regime.
Hopefully, by now, all firms and all solicitors will be aware of the revolutionary change that is coming their way from 1 November 2016, when continuing professional development (CPD) as we know it – and have known it since 1985 – disappears.
The current CPD regulations (SRA Training Regulations 2011 Part 3 – CPD Regulations) will be removed from the SRA Handbook on 1 November 2016, and the requirement to undertake 16 hours of CPD activity will be no longer. What will take its place instead is the expectation that a solicitor will adhere to Principle 5 and the obligation to provide a proper standard of service to clients. The Solicitors Regulation Authority (SRA) has not previously been explicit but the position now appears to be that there will be no new regulations for the ‘continuing competence’ approach; rather, all will centre around Principle 5. To this end, the notes to Principle 5 were amended on 1 April 2015 to include meeting the competencies set out in the SRA’s Competence Statement as an “integral part of the requirement to provide a proper standard of service”. The SRA has called this a ‘continuing competence’ approach, and that’s what will replace CPD.
Continuing competence has already been introduced in the sense that, from 1 April 2015, solicitors have been able to satisfy the requirements under the CPD regulations by adopting a continuing competence approach as an alternative to meeting the 16-hour requirement. Regulation 3.1 was amended to provide for these two options. Not all firms by any means have taken up this option for a number of very valid reasons. However, from 1 November 2016, firms will have no choice.
Responsibilities for planning and delivery
One issue which is therefore of particular concern to firms in facing this inevitable change is just where responsibility falls for this. There is responsibility in terms of moving the firm to the continuing competence approach to meet the 1 November deadline. There is responsibility for meeting the ongoing requirements of the continuing competence approach – there may not be new regulations but there are certainly requirements, predominantly set out in the SRA’s continuing competence toolkit.
One of the dichotomies for firms is that, because there are not to be regulations, the matter of responsibility is not set out, other than that every solicitor, individually, has to ensure that they are able to provide a proper standard of service to clients. When the SRA is asked about how a firm should approach continuing competence, the answer invariably is that it is not for the SRA to prescribe or dictate to firms but for a firm to make its own decisions. That may be all very well but it does not help the firm anxious not to stray unwittingly into regulatory non-compliance.
The best way of working through this is to look at continuing competence in the same way as any other obligation or regulatory responsibility under the SRA Handbook, and start with the Principles. If continuing competence hinges on Principle 5, then how is compliance with Principle 5 assured generally?
The answer is through the office of the Compliance Officer for Legal Practice (COLP) and the Compliance Officer for Finance and Administration (COFA), not forgetting the firm’s partners who are not let off the hook, even though the roles of COLP and COFA have been specially created to ensure a firm’s compliance.
Whether or not the COLP has training in their blood, or any experience of it, compliance with the continuing competence obligations falls well and truly within the COLP’s portfolio. That does not meant that the COLP needs to start checking personal development plans and the like, but that they must make sure the procedures and processes are in place to ensure that solicitors – and Registered European Lawyers (RELs) – in the firm are doing what is required by way of continuing competence, in the same way as the COLP does for other regulatory obligations where checking compliance may be delegated within the firm.
What is also important to understand about the move from CPD to continuing competence is that the previous regulatory oversight and monitoring of CPD compliance is going as well. The SRA, unlike regulators in other jurisdictions, has chosen not to monitor compliance by way of sampling a percentage of solicitors annually. Rather, it will only look at compliance with continuing competence if it goes in to a firm where, for instance, there have been concerns raised about the firm or its standard of practice. Then, it is not only the training that the firm’s solicitors have actually undertaken that the SRA will look at, but all other aspects of the business as well. Thus there is a need to maintain records in the event of a visit.
What are the chances of a visit from the SRA? Only a firm itself can assess that. However, if one is risk-averse (and firms’ insurers certainly are), then the safer way is to ensure compliance and, most importantly, ensure that there is the evidence to prove it.
The challenge for the COLP is that continuing competence places the onus on the individual solicitor: it is the individual solicitor who is required to reflect on their training needs, adapt the Statement of Knowledge to their particular circumstance and practice; establish how to address the identified training needs; undertake whatever is necessary; and reflect on the effectiveness of what they have done in attempting to meet their training need.
For many firms, much of this can be supported by using existing systems, such as:
- Preparation for annual appraisals that requires the appraisee to reflect on their development needs;
- Follow-up from appraisals – the learning and development (L&D) manager or team can source training sessions, coaching or mentoring which will help to meet training needs identified during the appraisal; and
- Training programmes, attendance records, and feedback or evaluation forms of training undertaken.
The continuing competence approach, for all the talk of flexibility and outcomes, is in fact process-driven. If these systems are already in place, then, for the COLP, it is a case of making sure that the systems are robust and actually delivering the evidence that is required. This requires effective reporting mechanisms between L&D and the COLP.
The need for L&D expertise
In practical terms, the expertise of those responsible for L&D will be needed more than ever before. Firms which may have thought the end of the 16-hour CPD requirement was their ‘get out of jail free’ card to slash the training budget and/or scrap the L&D department should think again.
Those who will be best able to help solicitors identify their L&D needs will be L&D. Those who will be best able to identify appropriate ways of meeting L&D needs will be L&D. Those who will be best able to identify the learning outcomes for particular activities and training sessions, against which the solicitor can identify whether their own needs have been met, will be L&D. Thus L&D professionals play a vital role in ensuring compliance with the new continuing competence approach.
Preparing for the firm’s transition to the new continuing competence regime needs to be a joint effort – of management, the COLP and the L&D manager. The reason management needs to be involved is that the onus on the individual under continuing competence to reflect, plan and so on will, for many firms, require both behavioural and cultural change. This therefore needs to come from the top. L&D can consider what systems are already in place which can support the new continuing competence regime, and also identify where behavioural and cultural change will be required, and advise management accordingly. The COLP needs to have an overview, but also an eye on whether the systems and cultural and behavioural change are actually going to achieve Principle 5. The COLP also needs to be confident that, if the SRA does come in to visit, the evidence base is there to demonstrate that the processes both are rigorous and have been followed.
The message to any firm only now starting to think about 1 November is: get your COLP, your L&D manager and your management talking – now.
Melissa Hardee is a solicitor and legal education and training consultant, and author of the recently published Legal Training Handbook. Melissa provides advice to firms on the move to continuing competence: see www.hardeeconsulting.com.
Want to know more about how your peers are adapting to the new regime?
Melissa is chairing Central Law Training’s Continuing Competence: Making it Work for You and Your Team Conference on 1 December 2016. This one-day conference is packed with insights from experts and your peers to help you maximise the opportunities and minimise the stress of moving to the new regime. Click here to find out more.
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