A group of campaigners have made a complaint against more than 20 managers to the Care Quality Commission (CQC) under the new “fit and proper persons” provisions introduced under the Health and Social
A group of campaigners have made a complaint against more than 20 managers to the Care Quality Commission (CQC) under the new “fit and proper persons” provisions introduced under the Health and Social Care Act 2008, with media reports claiming the complaints are aimed at current and former chief executives, medical directors, senior executives, and a former nursing director. The fit and proper person test was introduced in response to the failings at Winterbourne View Hospital and the Francis Inquiry in relation to Mid Staffordshire NHS Foundation Trust. Regulation 5 is primarily focused around predictable criteria such as bankruptcy and criminality, however the provision causing senior executives and healthcare organisations the most concern is the requirement in regulation 5(3)(d) that a director must not have been "responsible for, been privy to, contributed to or facilitated any serious misconduct or mismanagement (whether unlawful or not) in the course of carrying on a regulated activity….”.
The test is both broad, lacks any formal definition and would seemingly attach to a multitude of scenarios that have been exposed in relation to both the NHS and private sector in the last few years. The term "privy to" means that there is evidence that could lead the provider to reasonably conclude that a person was aware of serious misconduct or mismanagement, but did not take appropriate action to ensure it was addressed. It is not difficult to see service providers becoming nervous where directors who have previously been employed by failing trusts seek appointment. There is no provision in the regulations for such misconduct to be regarded as "spent". The CQC are clear in their guidance that senior leaders set the tone and culture of an organisation therefore the terms "misconduct" and "mismanagement" appear to have been purposely selected given the inherent flexibility in their application. This is designed to help ensure that an organisation determines its values and recruits its senior leadership team against them and is a key theme in the supplementary guidance CQC have produced to help service providers understand these changes.
In relation to the complaints above, they extend to former as well as current senior staff, which opens up the prospect of the CQC being drawn into historical arguments about management actions and culture on which it may be hard to adjudicate with confidence. In their approach, it is evident that the CQC place the initial responsibility on providers to carry out the appropriate level of due diligence on prospective appointees. There will need to be a clear audit trail retained by service providers that can be disclosed as evidence to the CQC should concerns be raised in relation to a director triggering requests for information from the CQC. The CQC will not provide a clearance service where it will indicate to service providers that particular individuals are fit and proper persons, however if there is relevant information at the time a service provider makes a their application for registration that suggests a director may not be suitable, the whole application could be refused. It appears that this is a carefully considered step by the CQC to place the onus on providers as part of their governance requirements and avoid being cited in Employment Tribunal proceedings.
Based on their guidance material, it appears that the CQC assess the credibility of the complaints and following this could convene a panel, probably chaired by the Chief Inspector of Hospitals, to decide whether each matter should be investigated. The panel has a difficult task; if it adopts a narrow interpretation of the fit and proper test it risks being accused of perpetuating mismanagement. If it casts the net too wide it will open its doors to potentially huge numbers of complaints about past and present conduct at a time when the CQC has a significant inspection workload.
The test itself will lose credibility if it is used to make political points or to hold people to account for circumstances over which they had little control, therefore the manner and consistency with which it is applied is critical. The objective of the CQC is to ensure service users are being cared for safely and compassionately, ensuring that essential standards are met; this objective should not be lost on those applying this test.
The test is both broad, lacks any formal definition and would seemingly attach to a multitude of scenarios that have been exposed in relation to both the NHS and private sector in the last few years. The term "privy to" means that there is evidence that could lead the provider to reasonably conclude that a person was aware of serious misconduct or mismanagement, but did not take appropriate action to ensure it was addressed. It is not difficult to see service providers becoming nervous where directors who have previously been employed by failing trusts seek appointment. There is no provision in the regulations for such misconduct to be regarded as "spent". The CQC are clear in their guidance that senior leaders set the tone and culture of an organisation therefore the terms "misconduct" and "mismanagement" appear to have been purposely selected given the inherent flexibility in their application. This is designed to help ensure that an organisation determines its values and recruits its senior leadership team against them and is a key theme in the supplementary guidance CQC have produced to help service providers understand these changes.
In relation to the complaints above, they extend to former as well as current senior staff, which opens up the prospect of the CQC being drawn into historical arguments about management actions and culture on which it may be hard to adjudicate with confidence. In their approach, it is evident that the CQC place the initial responsibility on providers to carry out the appropriate level of due diligence on prospective appointees. There will need to be a clear audit trail retained by service providers that can be disclosed as evidence to the CQC should concerns be raised in relation to a director triggering requests for information from the CQC. The CQC will not provide a clearance service where it will indicate to service providers that particular individuals are fit and proper persons, however if there is relevant information at the time a service provider makes a their application for registration that suggests a director may not be suitable, the whole application could be refused. It appears that this is a carefully considered step by the CQC to place the onus on providers as part of their governance requirements and avoid being cited in Employment Tribunal proceedings.
Based on their guidance material, it appears that the CQC assess the credibility of the complaints and following this could convene a panel, probably chaired by the Chief Inspector of Hospitals, to decide whether each matter should be investigated. The panel has a difficult task; if it adopts a narrow interpretation of the fit and proper test it risks being accused of perpetuating mismanagement. If it casts the net too wide it will open its doors to potentially huge numbers of complaints about past and present conduct at a time when the CQC has a significant inspection workload.
The test itself will lose credibility if it is used to make political points or to hold people to account for circumstances over which they had little control, therefore the manner and consistency with which it is applied is critical. The objective of the CQC is to ensure service users are being cared for safely and compassionately, ensuring that essential standards are met; this objective should not be lost on those applying this test.