Competence to practise - proposed amendment to Rule 20
In its announcement of the proposed amendment to rule 20 of the Board’s General Rules, the ARB invites comments on its proposals. What follows draws attention to aspects of the rule which are defective and calls into question its validity as a rule made under section 23 of the Act.
The announcement was made following a Report to the Board by the Prescription Committee on the subject of ‘maintenance of competence’ in which the proposed rule change is substantially the same as that now published. The Report provides no analysis of section 9 and suggests that the “Board’s current expectations regarding maintenance of competence” were uppermost in the author’s mind rather than what section 9 actually states. If a rule is made under section 23 of the Act it will be for carrying out or facilitating the purposes of the Act, in this instance the purpose of section 9 in the context of the Act as a whole.
1. Section 9 is one of the clauses collected under the subheading “Removal from Register etc.”. Unlike sections 4 and 5, which appear under the sub-heading “Registration”, Section 9 does not set out matters which entitle a person to be registered. It concerns both registrants and would-be registrants and provides for the situation where the Board is not satisfied of a person’s recent practical experience. Where that is so, the section effects the exclusion of that person from the register unless he or she satisfies the Board of their competence to practise.
2. The section is passive in the sense that it does not require the Board to be satisfied of a person’s recent practical experience. Whether there is a need for it to be active in respect of individuals in any or all of the categories (a), (b) or (c) of section 9 is a relevant question and one which should be debated in the light of evidence of need in respect of each category and subcategory of the individuals affected by the rule. However, the Board may make rules in respect of section 9 whether or not they are called into operation.
3. A rule under section 23 in respect of section 9 will concern the activities and processes whereby the purpose of that section is discharged. It is suggested that they are those
- which result in the Board being ‘not satisfied’ (or satisfied) that a registrant or would-be registrant ‘has gained such recent practical experience as the Board may prescribe’,
- which enable a registrant or would-be registrant of whom the Board is not so satisfied to have the opportunity of satisfying the Board of his or her competence to practise,
- whereby a registrant or would-be registrant ‘satisfies the Board of his competence to practise’.
4. The section cannot operate at all unless the Board prescribes recent practical experience. Whether this is done by a rule under section 23 or otherwise would seem of academic interest only, and the fact that recent practical experience is prescribed under the current and proposed rule 20 is not criticised.
Concerning the proposed Rule 20
"Any person who falls within the categories described in section 9(1)(a), (b) or (c) of the Act and who is engaged in the practice of architecture must have gained such practical experience as prescribed by the Board
"The prescribed practical experience for the purposes of this Rule shall be that such a person shall have undertaken sufficient activities, including CPD and active engagement in the practice of architecture, during the period to two years immediately prior to the application, in order to maintain their competence to practise in accordance with the Board’s guidelines which shall be published from time to time.
"Where the Board is not satisfied that such a person has gained such recent practical experience, that person may be required to satisfy the Board of their competence to practise.”
5. It may be observed that none of the matters mentioned in paragraph 3 above are the subject of the rule.
6. This is inconsistent with the right of a registrant or would-be registrant to have his name retained or entered on the Register who has not gained the requisite recent practical experience but is nevertheless competent to practise. In effect this paragraph contradicts the Act.
7. This refers to prescribed recent practical experience ‘for the purposes of this Rule’. The purpose of prescribing recent practical experience (whether by a rule or otherwise) is to enable section 9 to operate – see comments above.
8. Under section 9 the Board may prescribe recent practical experience. CPD is not practical experience and the Board has no power to prescribe it. However it may be possible to introduce CPD by a rule under section 23 as indicated below.
9. The reason for the prescribed practical experience is superfluous to the rule. The words “in order to maintain their competence to practise in accordance with the Board’s guidelines which shall be published from time to time” should therefore be omitted. A rule concerning guidelines is suggested below.
10. Retention of a person’s name on the register by “application” is not appropriate. The Act itself requires no such application. While persons in categories (a) and (c) “apply” to be entered or re-entered on the register, those in category (b) do not – they are on the register until they are removed.
11. The purpose of the paragraph is obscure and appears to be inconsistent with section 9. The section debars a person’s name being entered or re-entered on the register or, in the case of a registrant, effects the removal of that person’s name from the register. However this applies only to a person of whom the Board is not satisfied as regards his or her recent practical experience. If such a person wishes to be registered or not be removed from the register, as the case may be, he or she of necessity has to satisfy the Board of his or her “competence to practise”.
CPD and the Board’s guidelines
12. As regards the registrant or would-be registrant who lacks recent practical experience, a rule which enables CPD to be brought into the assessment of his or her competence to practise would seem possible and might read as follows:–
“Where the Board is not satisfied that a person has gained such recent practical experience as it has prescribed, the Board may take into account CPD which that person has undertaken in assessing his or her competence to practise”
“Where the Board is not satisfied that a person has gained such recent practical experience as it has prescribed, a person may present evidence of CPD which he or she has undertaken to satisfy the Board of his or her competence to practise.”
13. Given that it is generally accepted that the Board may publish guidelines relating to certain aspects of practice, a further paragraph to Rule 20 could state that the Board shall (or may) from time to time publish guidelines for the benefit of those without the prescribed amount of recent practical experience for the purpose of section 9.