Passing the test… Is your organisation fit and proper?

Nicola Sherrry from DAC Beachcroft outlines how the new Fit and Proper Person test will work.

Following on from the Francis Report, the CQC has launched new Fundamental Standards through which it will regulate all health and social care providers. A major limb of the new Standards is the new Fit and Proper Person test (FPPT). In short, NHS bodies (and registered care providers from 1 April 2015) must ensure that all board level appointments be ‘fit and proper persons’.

'Fit and Proper'

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out detailed requirements which explain how to determine whether an individual satisfies the FPPT. Individuals must be:

• of good character – taking into account any previous convictions or removal from a professional register. The CQC expects robust systems to be in place to ensure continuous assessment of the temperament, character and empathy of staff. Prospective and existing directors must be assessed for honesty, trust and respect.
• have the qualifications, competence, skills and experience necessary for their position; and
• be of the appropriate physical and mental fitness (once reasonable adjustments have been made) to be capable of performing tasks intrinsic to their job.

In addition, there are specific grounds of unfitness including individuals who are undischarged bankrupts or on the children’s or adults’ barred list maintained under the Safeguarding Vulnerable Groups Act 2006.

Of more difficulty to determine may be the requirement that the individual has not been ‘responsible for, been privy to, contributed to or facilitated any serious misconduct or mismanagement (whether unlawful of not) in the course of carrying on a regulated activity or providing a service…’ A number of these terms are not defined leading to issues of ambiguity and interpretation. However, ‘serious misconduct’ might be expected to include assault, fraud and theft; whilst ‘mismanagement’ is likely to cover the mismanagement of funds or a failure to adhere to guidance or processes regarding care quality. The CQC also makes it clear that whilst convictions, bankruptcies and similar may become ‘spent’, there is no time limit for considering serious misconduct or responsibility for failure in a previous role.

Meeting the challenges

New Standards will undoubtedly result in increased scrutiny and an increase in prosecutions. It is crucial for compliance, that all health and social care providers have robust and transparent recruitment processes, as well as a Board decision-making process that is clear and well documented. These systems and processes must be able to stand up to both real time and retrospective challenge. The consequences of non-compliance could adversely impact an organisation’s CQC registration.

For existing directors, organisations must undertake regular reviews to ensure that all directors are continuing to meet the FPPT. In the short term, this could include asking existing directors to self-certify that they meet the FPPT following which the organisation should carry out precisely the same due diligence (with the appropriate documentary audit trail) on existing directors as they would carry out on new recruits.

In terms of new recruits, it is clear that seeking references and using the interview process will go some way towards discharging the organisation's responsibilities. The same is true of asking a director or prospective director to ‘self-certify’ that they meet the FPPT. However, the CQC envisage much more rigorous checking and state that information about core public information sources will be available on their website.

Moving forward

Organisations must ensure that they periodically assure themselves that their directors continue to meet the FPPT. Provided that a full and through check of a director's suitability has been undertaken, it may well be sufficient for that director to self-certify on an annual basis and for the organisation to consider that self-certification alongside annual appraisals and any other information that they possess to provide ongoing assurance.

It appears from the current guidance that the CQC are more likely to focus on whether an organisation has robust processes in place to meet the FPPT rather than taking steps to remove particular individuals. For the time being at least, the remit of removing a director will remain the responsibility of the organisation (with the inevitable risk of an increase in employment tribunal claims). Updated guidance is expected from the CQC following the wider application of the Fundamental Standards after 1 April 2015.

Nicola Sherry, Employment & Pensions Team in Manchester, DAC Beachcroft