This section sets out the answers to some frequently asked questions that NHS trust boards may wish to consider when undertaking a fit and proper persons test at the recruitment stage, through ongoing assessments, and/or if they have to undertake an investigation.
What is "fitness" in the context of the fit and proper persons regulations (FPPR)?
According to the regulations, trusts must not appoint an executive or non-executive director unless they meet the following "fitness" criteria:
- are of good character
- have the necessary qualifications, competence, skills and experience
- are able to perform the work that they are employed for after reasonable adjustments are made
- have not been responsible for, privy to, contributed to or facilitated any serious misconduct or mismanagement in the course of carrying on a regulated activity
- can supply information as set out in Schedule 3 of the Regulations (see Appendix 1).
The director must not meet any of the following "unfitness" criteria:
- convicted in the United Kingdom or elsewhere of any offence which, if committed in any part of the United Kingdom, would constitute an offence, and
- erased, removed or struck off a register of professionals maintained by a regulator of health care or social work professionals.
Who is responsible for discharging the requirement of the FPPR?
The trust chair is ultimately responsible for discharging the requirement placed on the trust to ensure that appropriate checks have been taken to reach a judgement that all directors meet the categories of fitness and do not meet the unfit criteria. Responsibility also falls on the trust chair to decide whether an investigation is necessary and, at the end of the investigation, to consider whether the director in question remains fit and proper.
What is the definition of "good character"?
'Good character' is legally defined as someone who has not been convicted of an offence in the UK or elsewhere, and has not been erased, removed or struck off a healthcare professional register. CQC’s national guidance also includes the following factors as indicators of good character:
- ability to comply with the law
- a person in whom the public can have confidence
- prior employment history, including reasons for leaving
- if the individual has been subject to any investigations or proceedings by a professional or regulatory body
- any breaches of the Nolan principles of public life
- any breaches of the duties imposed on directors under the Companies Act
- the extent to which the director has been open and honest with the trust
- any other information which may be relevant, such as disciplinary action taken by an employer.
How should trusts interpret "privy to, responsible for, contributed to or facilitated any serious misconduct or mismanagement"?
CQC’s guidance offers some help in defining "serious misconduct or mismanagement":
- Misconduct is defined by CQC as a breach of "a legal or contractual obligation imposed on the director", for example an employment contract, regulatory requirements, criminal law or engaging in activities which are morally reprehensible or likely to undermine public confidence. Examples of serious misconduct include assault, fraud and theft.
- Mismanagement is defined by CQC as "being involved in the management of an organisation […] in such a way that the quality of decision-making and actions of the managers falls below any reasonable standard of competent management". Examples of serious mismanagement include any dishonest conduct, continued failure to develop and manage business, financial or clinical plans, and having no regard to appropriate standards of governance.
- While serious misconduct tends to be a single incident, serious mismanagement is likely to refer to actions over a period of time.
- "Privy to" means that there is evidence that the director was aware of serious misconduct or mismanagement but did not take the appropriate action to ensure it was addressed. This action could include making a formal complaint or drawing the matter to the attention of the appropriate senior member of staff or a suitable person outside the organisation.
- "Responsible for, contributed to or facilitated" means that there is evidence that a person has intentionally or through neglect behaved in a manner, through action or omission, which would have led to, assisted or enabled serious misconduct or mismanagement.
Who is covered within the remit of the FPPR?
There is wide variation between trusts in how they interpret and apply the requirement in the FPPR to cover all executive and non-executive directors including those in permanent, interim or associate roles, irrespective of their voting rights at board meetings. CQC’s national guidance states that this includes "board directors, board members and individuals who perform the functions equivalent to the functions of a board director and member", as well as "any other individuals who are members of the board". The FPPR also cover individuals who are not directors but undertake roles and responsibilities that are equivalent or similar to directors. Ultimately trusts determine which individuals fall within the scope of the regulation. Some trusts focus on board members only, while others include all staff with 'director' in their title whether or not they are on the board, including deputies that could take on formal deputising roles. This may mean that non-board members undergo the relevant checks to ensure they meet the requirements of the FPPR. The FPPR does not apply to governors of a foundation trust.
What about where poor performance is a result of factors beyond the control of the director, such as the challenging financial context?
NHS directors should hold and maintain their suitability for their role, as well as disclose any issues which may call this into question. This includes demonstrating to the board that they are fit and proper through the appraisal process and even by FPPR reviews to prove that they are suitable to hold their role despite the challenging context. Documenting evidence is also important to show how a challenging experience was developmental for them.
How should trusts use evidence to arrive at a conclusion that a director is a fit and proper person or not?
Trust will need to collect and analyse evidence in order to arrive at a decision based on facts. Each piece of evidence should be considered in terms of:
- its relevance. Trusts should consider how a piece of evidence, if accepted, impacts on the matter under consideration
- its reliability. Trusts should consider if they would be confident to use this information to make a finding of fact.
What action should the board of a failing trust take to assure itself that its directors are fit and proper?
It is important to note that the same standard of fitness applies to both well and poorly performing trusts. To this end, CQC states in its national guidance that a trust in special measures is not evidence or an indication that a director is unfit. It is clear that individuals may be fit for their roles while, collectively, the board demonstrates a lack of fitness. However, if a trust receives a CQC report detailing systemic failures, particularly in the well-led domain, or is placed in special measures, directors may decide to assure the board that they are fit and proper. This would enable them to vindicate themselves if they have played no role in the poor performance of the trust, or if the trust’s poor performance was attributable to a director, they would have been found to be unfit and the necessary action taken.
What is the role of CQC?
CQC’s role is to assess whether a trust has followed robust processes and procedures at the appointment stage and on an ongoing basis to assure itself that its directors are fit and proper. CQC will communicate all concerns it receives about the fitness of a director to its employer, and will assess whether the trust as the employer has investigated the concerns raised appropriately. If CQC is satisfied with a trust’s handling of the concerns, no further action will be taken. If CQC is unsatisfied, this may amount to CQC asking the trust to provide more evidence, investigate more fully or otherwise.
How does CQC share concerning information that it receives with trusts?
CQC will pass on all information it receives in relation to FPPR concerns to the trust currently employing the director in question. Once CQC has received consent from the person providing the information or decided to proceed without it, CQC will inform the director in question and then send the information to the trust. CQC will send all the information to the trust and ask them to respond with the action they intend to take within 10 days.
Should CQC create a register of people who have failed to meet the requirements of the FPPR or been investigated?
While a national register of people accredited under the FPPR may seem useful, it is not currently deemed practicable nor is provided for in the regulations. The solution is more behaviour-based. Boards should be adopting certain behaviours when determining the fitness of an individual and this cannot be solved by a register. Previous employers need to consider it their duty to pass on any relevant information.
If a historic allegation is raised, who has the duty to investigate?
CQC’s national guidance is clear that the current employer has a duty to investigate historic allegations, not the employer where the allegations took place. The current employer should consider a level of proportionality and consistency in dealing with historic cases. There is no time limit for considering FPPR concerns.
How long does a fit and proper persons investigation take?
The length of time taken to complete a fit and proper person investigation depends on the nature of the concerns and complexity of the issues raised. Some last months, others have lasted up to one year.
Should directors be suspended while the investigation is carried out?
Trusts will need to consider whether there are grounds for suspension of the director in question while the investigation is being carried out. Trusts have the right to suspend a director to allow them to investigate the matters raised. While trusts should be mindful of the disruption caused by suspending a director and the effect on the business, patient safety and public confidence in the organisation are paramount.
What powers do trusts have during fit and proper persons investigations?
Trusts have no legal powers to compel witnesses to come forward to give evidence or to disclose documents.
How should trusts manage the tension between the FPPR and compromise agreements?
Tensions may arise between the checks taken to meet the requirements of the fit and proper persons test on appointment, and compromise agreements. This is a tension within the system that should be managed through due processes, but the candidate should feel responsible for declaring their fitness and take into account FPPR.
What happens if the person under investigation leaves the board or the board is dissolved?
The FPPR does not apply to a person who has left the board, or once a board is dissolved. If the individual applies for a new job with a new employer, it is the new employer’s responsibility to assure itself that the candidate is fit and proper, particularly if the candidate has not been privy to mismanagement. If an individual did not succeed in an organisation, the new employer must not necessarily dismiss the potential candidate as people learn best from failures. However, in reality, if a board sees an individual has failed to meet targets or stepped down from their role, this could cloud judgement despite all good and pragmatic intentions. This makes the rehabilitation task difficult.
How should trusts manage the public and media interest in an investigation?
Information relating to fit and proper persons investigations could be subject to a request for disclosure under the Freedom of Information Act. However, trusts must ensure that the reputation of the director in question is protected up until any evidence suggests there is a case for them to answer to, or rather when the outcome of the investigation is determined. Trusts may also need to deal with media interest if the matter under investigation becomes public and they should employ a robust communications plan.