Accreditation Schemes Discussion document

Transcription

1 Regulatory Affairs Group 07/12/06 Agenda item 8 Accreditation Schemes Discussion document This document sets out: General background information relevant to accreditation schemes General considerations for the representative body And Highlights particular issues relating to each of the current schemes Raises (and suggests some answers to) key questions posed by the CGB for the group to consider 1. General background information 1.1 Latest CGB decision At its meeting on 21 September 2006, the minutes state: The Board discussed an approach to accreditation that had been discussed by representatives of the non-regulatory side of the Law Society and the Regulation Board. The principles underpinning the approach were: Many accreditation schemes served both the regulatory purpose of assisting consumers to find suitable solicitors for particular types of case, and the representative purpose of helping solicitors with particular expertise to promote themselves. It was legitimate for the regulation side to decide (after appropriate consultation) that a regulation scheme was needed in areas of law where they had concluded there was a regulatory need to do so. Even where the Regulation Board decided a scheme needed to be established, it needed to ensure (in accordance with the principles of good regulation) flexibility and proportionality in the criteria for membership and methods of assessment. The Regulation Board s responsibility was primarily to set standards. It should be willing to kite-mark schemes run by other bodies (subject to appropriate safeguards) rather than expecting to operate all regulatory accreditation schemes itself. The Corporate Governance Board endorsed the approach to accreditation of regulatory schemes as set out in the annex to the paper. The next steps would be for existing accreditation schemes to be reviewed in the light of the agreed principles, and where necessary for decisions to be reached on their administration and on the allocation of costs. 1

2 The annex to the CGB paper, setting out the approach to accreditation, is attached as an annex to this paper for ease of reference. 1.2 What is regulatory need or regulatory objective? The draft Legal Services Bill reads as follows: 1. The regulatory objectives and (1) In this act reference to the regulatory objectives is a reference to the objectives of - (b) improving access to justice; (c) protecting and promoting the interests of consumers; (d) promoting competition in the provision of services within subsection (2); [i.e. those who can carry out reserved activities] (e) encouraging a strong, effective and diverse profession; 23. Approved regulator s duty to promote the regulatory objectives etc (3) The approved regulator must have regard to - (a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed, and (b) any other principle appearing to it to represent the best regulatory practice. The Regulation Board has set its objectives. The ones relevant to accreditation are: Setting the standards for professional behaviours, and continuing professional development so as to maintain and enhance the competence, performance and ethical conduct of solicitors and uphold the rule of law Operating processes to monitor compliance with standards, so as to identify cases requiring remedial, investigative or other regulatory action and Tackling unacceptable professional or organisational performance, misconduct and dishonesty by firm, fair and timely regulatory and disciplinary action. 1.3 What does the Carter Review propose? 28 The Legal Services Commission should continue to set quality standards, but in line with legal services reform, the responsibility of quality assurance should pass to the legal professions through their relevant professional bodies. 29 In particular, the quality of advocacy services, including their quality of interaction with the courts, should be developed in time for the introduction of new procurement schemes in April

3 1.4 What did the Have Your Say consultation reveal about the profession s view of accreditation? Promoting the image and skills of solicitors was in the top 5 most important areas which the representational body should focus on. Accreditation for law specialisms was (out of 15 options) the 10 th most important support service for the representation body to provide for solicitors, the 7 th most important for international solicitors, the 8 th most important for students and the 11 th most important for firms. 1.5 DCA study of legal services market to determine whether consumers need more information about the quality of providers and, if so, how best to provide it This study has been completed but is still with ministers awaiting approval. It should be made public before Christmas when the DCA will arrange meetings with the Law Society and other relevant bodies (however it appears that its launch is being constantly put back as work on the Legal Services Bill is prioritised). It is likely that this study will draw attention to the gap between what consumers need and what the professions have provided. The main problems are seen to be: patchy coverage, with no quality information available about some legal services failure to identify and take account of consumers needs and views lack of consistency between schemes risk of existing schemes being anti-competitive The DCA plan to encourage the professions to develop new quality information schemes and to oversee them to ensure that they do benefit consumers and comply with competition law. Existing schemes would be reviewed against criteria set by the DCA. The DCA propose that oversight of the schemes would be carried out via Front Line Regulators. The schemes would need to have 12 features: clear, objective and relevant criteria transparent method of assessment, using evidence taking account of consumers needs and views continuing re-accreditation or re-appraisal of participants, and updating information about them independence comprehensive and unambiguous coverage diversity publicity complaints handling regulation information about fees information about the cost of the scheme 3

4 1.6 Operating costs of running current schemes budgets 2006 Income 000 Expenditure 000 Net Income 000 Mental health Childrens Personal injury Clinical negligence Family Family mediation 2 15 (13) Criminal Planning Immigration & asylum Civil & commercial mediation 1 5 (4) TOTAL NB Costs of running schemes were last reviewed in Schemes are supposed to be self-financing but historically the fee has not covered costs of policy and development work. It is also unlikely that these figures cover general overhead costs. 1.7 How the schemes are currently promoted to the public Generally speaking, very little money has been put into promoting the schemes as although it has been recognised that there are many positive benefits to be had from promotion, money has often been prioritised elsewhere. However the initiatives which have taken place are as follows: In the last two years new logos have been designed and promoted. They are all similar with the hope that if a consumer is aware of one logo, they will identify another as being part of the same scheme Laminated information sheet displaying each of the new logos was sent to MPs for use in their surgeries (this had been requested by a number of MPs) Meetings with Citizens Advice to encourage them to recommend that their advisers refer clients to members of schemes Members of schemes issued with logo stickers to go on firm's windows and logos to go on their merchandise/letterheads There is a dedicated search area on Solicitors on line The Directory of solicitors specialising in child abduction cases promotes Law Society and Resolution accredited solicitors via the website and via leaflets which are being sent to police stations, the FCO, OSPT, LSC and others The Law Society s leaflet Your guide to getting a divorce suggests that consumers may like to use members of the Family Law Panel. Making a 4

5 personal injury claim suggests using members of the PI panel. The leaflets were sent to firms, CABx and public libraries Schemes are also publicised via Law Society adverts in Yellow Pages 1.8 The Law Society s Council s position In December 2001, the Council approved a strategy to achieve and promote quality standards across the profession. The Council recognised professional accreditation as a key tool in helping to deliver the strategy and agreed the Society should take a strong lead in the development of standards of competence and specialism for solicitors. Specifically:.., the Council agreed the following: 1. The Society should champion the provision of good quality services across the profession including: Technical advice; Practice management standards; and Client care 2. The Society s strategy in respect of Quality Assurance Standards should be developed around this key principle. 3. The Society should continue to set standards for its members, both directly (through Lexcel or panel membership) and, as appropriate, indirectly (by influencing the development of other quality initiatives such as the CLSQM). 4. The Society should take a strong lead in the development of standards of competence and specialism for solicitors. 5. The Society should develop Accreditation Panels in appropriate franchised categories of law in which significant numbers of solicitors offer services. 6. The Society should take the lead in developing technical standards for privately-funded work. 7. The Society should consider the development of accreditation panels for areas of practice in which solicitors and offer services to lay clients. 8. The Society should be the leading voice on the promotion of Practice Management Standards 9. The Society should promote Lexcel as the standard written by solicitors for solicitors 10. The Society should ensure that Lexcel is passported at some level into other relevant recognised quality kitemarks 11. The Society should consider the development of a standard and/or Panel for Practice Managers. 12. The Society should recognise the need for and require a link between standards of technical advice and practice management and client care. 13. The Society should promote vigorously those solicitors and practices which have achieved quality standards. 14. The Society should not seek to permit only members of its Panels to promote themselves as specialists. 15. The Society should actively promote the benefits of quality standards both the profession and to consumers. 16. The Society should re-examine the scope for bearing part of the costs of development and indirect costs of operating its Panels. At this time, of course, the Council was acting in both a representative and regulatory capacity. 5

6 2. General considerations for Representation 2.1 Possible advantages of running non-mandatory schemes Representatoin would design the schemes with practitioner involvement Better opportunities and more of a motivation to market schemes than Reg Some, particularly younger solicitors, may welcome the opportunity to become accredited and therefore to have a clearer sense of career progression than traditional forms of practice permit, and therefore would welcome their representative body being more involved in accreditation Representation side may then be better placed to develop membership benefits e.g. encouraging insurers to offer reduced indemnity premiums for those who demonstrate their competence in specific areas, annual membership meetings to discuss issues, discounted publications, discounted and specialist training, website secure forum for members, specialist newsletters 2.2 Possible disadvantages of being involved in running non-mandatory schemes Some schemes do not break even (even without development costs taken into account). The cost of developing schemes may make running any new schemes unprofitable; also the process of updating and making uniform the current schemes will cost money If the aim were e.g. with the LSC s peer review, to make the process less onerous, it is likely to be easier to persuade the LSC/DCA to accept this if the SRA rather than the representation side is responsible for the schemes Schemes are not always popular with the profession and there is often controversy over what knowledge should be tested and anger when solicitors do not get onto schemes. Some members might feel that it is the role of the Law Society to represent and promote all solicitors rather than differentiate between those on schemes./ The LSC currently covers the cost of membership for those carrying out legal aid work. However if this funding was to be withdrawn (as has happened for the uplifts in family and immigration), and the LSC continues to make accreditation compulsory in some areas e.g. immigration & asylum, then accreditation schemes will become much less palatable to solicitors. It would not make the Rep body particular popular if it were the body trying to collect this money. 2.3 Possible advantages of schemes continuing to be run by Regulation Law Society can still use the expertise of its members to influence standards and the assessment mechanisms of schemes as primary professional consultee Law Society can market those members on schemes more proactively than has been done in the past, and develop membership benefits Law Society doesn t have to deal with telling solicitors they haven t met the standards Law Society doesn t have to cover any costs of administering the schemes (including maintaining staff) from the successor to the section 47 levy and so the ocst of the professional body would look less 6

7 If there were to be a relaxing of the LSC peer review standard (assuming that peer review does become administered by the SRA in due course), then this would be more credible if this was done by the SRA rather than the Law Society. 7

8 3. Specific schemes (please also see attached table) 3.1 Authorised Insolvency Practitioners Purpose: Serves a legislative purpose as those solicitors wishing to carry out this work must be authorised by the Law Society (via the scheme) or by another authorised body 3.2 Children Panel Purpose: seeks to protect vulnerable clients Popular (2,013 members) 3.3 Civil and Commercial Mediation Panel Purpose: this was introduced at the request of the then ADR Sub-committee to increase the standing and influence of the Law Society in the mediation world and to address what were seen as elitist referral systems operated by the leading mediation organisation in the market (CEDR). Only 24 members Not self-financing LSC requires mediators to be accredited although not necessarily through this scheme Questionable whether there is a continuing regulatory need 3.4 Clinical negligence panel Purpose: established as a result of some serious incidences of inadequate representation by non-specialists. It is understood LSC require supervisors to be accredited under this scheme or by AvMA AvMA also run a scheme - they currently have 184 panel members (Law Society has 289 members) 3.5 Criminal Litigation Accreditation Scheme Purpose: to allow solicitors to apply for inclusion in the LSC s Regional Duty Solicitor Scheme Effectively compulsory for legal aid solicitors High no. of members (6, 054) 3.6 Family Law Panel and Family Law Panel Advanced Purpose: seek to protect vulnerable clients LSC requires supervisor to be a member of Family Law Panel or Resolution s scheme Resolution s scheme is equivalent to the Family Law Panel Advanced There are 2,660 on FLP, 524 on FLPA and approx on Resolution s panel. Until recently there were financial advantages in being on FLPA or Resolution s panel. 8

9 To be listed in the Child Abduction Directory, solicitors must have passed the child abduction module on either the FLPA or Resolution panel. It is understood that the OSPT will not use solicitors who are not on the Directory. 3.7 Family Mediation Panel Purpose: the Family Law Act 1996 contained a requirement that all matrimonial and most children, ancillary relief matters must be assessed for suitability for mediation before they could go to trial. It was expected that a large number of cases would subsequently go to mediation. The Panel was set up to cater for this need and to provide consumers with a list of suitability qualified solicitors who had been trained and were competent to conduct family mediations. The problem was that the relevant part of the act never came into force. LSC requires mediators to be accredited under this scheme or another scheme Appears to operate at a deficit 3.8 Immigration and Asylum Accreditation Scheme Purpose: seek to protect vulnerable clients Compulsory for legal aid lawyers Level 3 is for particularly experienced/expert advisers and is administered by regulation, there used to be a financial incentive to being on this Level although numbers are very low. 3.9 Mental Health Review Tribunal Panel Purpose: seek to protect vulnerable client base LSC require accreditation 3.10 Personal Injury Panel Purpose: initially the Personal Injury Panel was set up following concerns about the standard of representation available for victims of accidents. It was supplemented later by Accident Line - a personal injury referral system set up by the Law Society. The Panel was the method to accredit those who wished to join Accident Line. Voluntary APIL also run a scheme 3.11 Planning Panel Purpose: to help promote solicitors in an area where there is strong competition from planning professionals No clear regulatory need Relatively low numbers (121) 3.12 Police Station Representative Accreditation Scheme Purpose: to permit non-solicitors to be accredited to work as police station rep Appears to be aimed at firm s employees rather than at solicitors 9

10 3.13 Rights of Audience in the Higher Courts Purpose: Compulsory if solicitor wants to conduct advocacy in higher courts SRA is currently reviewing whether this system is appropriate. Rep side has proposed that solicitors should have rights of audience in all courts on admission Directory of solicitors specialising in child abduction cases More of a marketing tool as uses accreditation already gained by solicitors to market their expertise to clients/public bodies 10

11 4. Questions 1. Which schemes are clearly regulatory? There are two schemes which solicitors are required by law to be a member of in order to do particular types of work and can be classified as clearly regulatory. These are not like the other accreditation schemes in that members are qualified or licensed to carry out the work. These are: Authorised Insolvency Practitioners scheme Rights of Audience in the Higher Courts It could also be argued that those schemes which involving solicitors who provide legal services to vulnerable clients also serve a regulatory purpose. These are mainly those where legal aid is involved and are: Children Panel Criminal Litigation Accreditation Scheme Family Law Panel Family Mediation Panel Immigration and Asylum Accreditation Scheme Mental Health Review Tribunal Clinical Negligence Panel Family Law Panel Advanced Police Station Representative Accreditation Scheme 2. Which schemes are solely representational? The Planning Panel was established to help solicitors compete with other providers of services. The Civil & Commercial Mediation Accreditation Scheme was established to provide competition for CEDR mediators. The Family Law Panel Advanced and Immigration & Asylum Accreditation Scheme Level 3 are both advanced/ expert levels. 3. Are there any schemes for which there is no clear regulatory need, and which the rep body thinks should therefore be disbanded? There is an argument for the 4 panels mentioned in Q2 being disbanded. However the Family Law Panel Advanced is the equivalent level to the Resolution accreditation scheme, and if it were to be disbanded, the remaining Law Society scheme would be at a lower level to Resolution s. If the LSC should decide to reintroduce enhanced fees it may decide not to award it to Law Society panel members, but this is regarded as unlikely. There are also regulatory arguments for retaining it e.g. it allows solicitors to become specialists in child abduction work which is serving a vulnerable client base. There is also an argument that the Family Law Mediation Panel is redundant. 4. Are there any schemes which the rep body would like to operate itself? Is there any demand for non-regulatory accreditation schemes? 11

12 The Law Society might be interested in running expert schemes such as IAAS level 3 and possibly Family Law Advanced. The Law Society might also be interested in running the Directory of solicitors specialising in child abduction, as this is, in effect, a marketing tool. 5. If the rep body does not want to operate schemes, what involvement would the rep body like in the development and marketing of schemes? The rep body should be the primary professional consultee for schemes which the regulatory body develops or maintains. Historically very little money has been spent on promoting the schemes and this could be an area where the rep body could bring about significant benefits for its members e.g. encouraging insurers to offer lower indemnity premiums for those on schemes. 6. Are there any schemes run by other bodies which the Law Society should kite-mark or with which the Law Society should seek to merge its schemes? Or is there value in there being several similar competing schemes? The key competitor schemes are : Resolution and Family Law Panel Advanced AvMa and Clinical Negligence Panel APIL and Personal Injury Panel CEDR and Civil and Commercial Mediation Panel Work has been carried out in the past to compare the panels and, in approving the Directory of solicitors specialising in child abduction, the Regulation Board was tacitly approving the Resolution scheme as being on a par with the Law Society s panel. 7. What should the arrangements be for deciding whether, how and when the responsibility for administering those schemes which did serve a continuing regulatory purpose should be transferred to another body, where this is not already the case? Running accreditation schemes can be broken down into several key areas: Development of the standards and of the assessment mechanism Running the assessments Monitoring the assessment mechanism and updating the standards Dealing with vetting of solicitors, complaints and reaccreditation Therefore when thinking about outsourcing administration to other bodies, thought needs to be given to which areas can or should be left to other bodies. At present it is mainly the running of assessments which is outsourced to other bodies. 8. If the DCA will require the LSC to handover peer review to the Law Society, should it be to the regulatory or representational arm? As discussed earlier, if the aim of the rep body is to be the relaxation of the standards required through the peer review process, then it is less likely that this would be acceptable or credible if the decision was taken by the rep body. It may be more acceptable to both the LSC and DCA for the reg body, having regard to the Better 12

13 Regulation Commission s principles and the need to keep costs down, to reduce the burden placed on legal aid solicitors via peer review. However, the rep body should note (see 1.3) that the Carter Review proposed that the LSC should continue to set quality standards. The Law Society s Council in December 2001 agreed that it was important for the Law Society to be the standard setter, and it may be important for the profession that this role sits with the Law Society rather than the LSC. 13

14 ANNEX Annex to 5c, CGB 21 September 2006 Accreditation schemes 1. Accreditation schemes can be divided into two categories: Regulatory. Schemes where membership is a requirement to practise in a particular area of law (either formally or in practice), or which promote the regulator s objective of assisting clients to identify suitable solicitors for particular legal issues where it would otherwise be difficult to do so, may be regarded as regulatory.. Representational. Schemes which provide a badge for the solicitors who are members of them, which may assist them to attract business. Many schemes will fall into both categories. Principles relating to Regulatory schemes 2. Where membership of an accreditation scheme is mandatory to practise in particular area of law, the draft Legal Services Bill would (in its present form) effectively require decisions to be taken by the Regulation Board. The Bill will not necessarily require decisions about non-mandatory schemes to be taken by the Regulation Board, although it is plainly a legitimate function of the Board to introduce or maintain non-mandatory schemes where there is sufficient regulatory justification for doing so. 3. Under the Law Society s present arrangements (which could be changed), responsibility for all accreditation schemes, except those which are solely representational, rests with the Regulation Board. Regulation 31(5) gives the Board responsibility for all matters relating to the setting and maintenance of ethical, conduct and quality standards (including accreditation schemes and panels). The wording of the regulation refers to setting and maintenance of standards. It does not imply that the Regulation Board is required to be responsible for the delivery of accreditation schemes. 4. The Regulation Board will have a continuing interest in all accreditation schemes, because they are part of protecting and promoting the interests of consumers, which is one of the regulatory objectives proposed in the draft Legal Services Bill. The principles relevant to accreditation schemes include the following: Consistent with its duty to follow the Better Regulation Task Force principles, the Regulation Board should not propose the creation of a scheme unless there is a clear regulatory need to do so. There should be full consultation with the Law Society (and other stakeholders) before the Regulation Board takes a decision to introduce any new scheme). In addition to consultation on the principle of schemes, there should be full consultation on the criteria proposed for any new schemes and 14

15 on changes in respect of any existing schemes. The Regulation Board s essential role is the setter of standards and of assessment requirements rather than as direct provider of services. Accordingly, it may choose to approve and quality assure accreditation schemes run by other bodies, rather than directly run schemes itself; or it may choose to contract out assessment of a scheme which it has instituted. It would, however, be appropriate for the Regulation Board to run schemes itself where it has concluded that a scheme is necessary and there is no other suitable alternative body willing and able to run the scheme. The Regulation Board s role in quality assurance will include ensuring that schemes provide a satisfactory assurance that members of the scheme meet and continue to meet its standards; and ensuring that schemes have effective arrangements to remove practitioners whose performance demonstrate that they no longer meet the criteria for inclusion. Even where the Regulation Board does not itself propose the creation of a scheme, the Regulation Board will (subject to the availability of resources, and to other priorities) be willing to approve accreditation schemes run by other bodies which meet the Regulation Board s standards. The Regulation Board should be flexible in considering methods of assessment. In considering whether to approve a scheme, the Board should be prepared to consider any proposed assessment methods that can provide a satisfactory assurance that members of the scheme reach and maintain the necessary standard. 4. It is unlikely to be a priority for the Regulation Board to establish accreditation schemes for areas of law where consumers are generally well informed, or to establish schemes at the expert level. It would be for the Council, another representative body, or a third party provider to decide whether to initiate the establishment of schemes in such areas. Any such schemes would naturally have to be designed with competition considerations in mind. The Regulation Board would be concerned to ensure that such schemes were not branded in a way as to give the impression that they are one of the Regulation Board s approved schemes if that was not the case. Next steps 5. If these principles are agreed, the next steps will be for the Regulation Board and the representation side to examine each of the existing schemes, and to decide: Whether there were any in which the Regulation Board no longer had a continuing interest in approving (where there is no clear regulatory need for the scheme. 15

16 What the arrangements should be for deciding whether, how and when the responsibility for administering those schemes which did serve a continuing regulatory purpose should be transferred to another body, where this is not already the case. How costs should be allocated. 7 September