Fit and proper person requirements for directors in the health and care sector – what does this mean and what are service providers required to do?

24 November 2020

The Care Quality Commission (“CQC”) is the independent regulator of health and adult social care in England, established in 2009 under the Health and Social Care Act 2008 (“the Act”).  The CQC’s main objective established under the Act, is to “protect and promote the health, safety and welfare of people who use health and social care services”.
 

What is the Care Quality Commission?

Its role is to ensure care services provide safe, effective, and high-quality care, and to monitor providers and encourage them to improve the services they provide.

As of December 2020, the CQC regulates approximately 15,500 care homes, 1,400 hospitals, 590 ambulance services, 8,700 GP services, 11,000 dentists, 11,000 home care services as well as other community based care services.  Individuals within these services are also regulated by various professional bodies, including the Health and Care Professions Council, the Nursing and Midwifery Council, the General Dental Council, the General Medical Council and more. 

The CQC however looks at the overall safety, effectiveness and quality of care that such services provide and can take regulatory and enforcement action against the service itself for any failures, while the professional bodies mentioned above, will deal with individual conduct and professional failings.

Breaking it down, the CQC’s role is to:

  • register care service providers;
  • monitor and inspect services to see whether they are meeting the  fundamental standards of quality and publish what they find, including ratings;
  • take enforcement action as and when required;
  • speak independently, publish regional and national views of major quality issues in health and social care, while encouraging good practice.

The CQC carries out their role and functions through a variety of measures available to it which can include warning notices, civil or criminal enforcement. 

 

An overview of the requirements

One of the measures to ensure safety and quality of services is that directors of registered providers must be “fit and proper”. This requirement is contained in Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“Regulations”). The obligation however does not extend to providers who are individuals or partnerships.[1] All providers registered with the CQC must assure themselves that all directors who are responsible for delivering care to service users are fit and proper – in other words, they must be able to diligently carry out their responsibility to ensure the quality and safety of care. This forms part of the providers’ duty to ensure the service is well-led, which is one of the focus points during an inspection. Not only does the CQC monitor compliance at the point of registration, but it is an on-going duty and can lead to enforcement action where it is not met.

The reason for imposing this obligation is because the registered provider is solely responsible for appointing, managing and dismissing directors, like they are with employees. 

 

The role of directors and their obligations

The fit and proper requirements imposed on directors are in place to ensure that those who hold the overall responsibility for quality and safety of care (such as care homes, GP practices, hospitals, dental clinics etc.), are considered people of good character with necessary qualifications, competencies and skills, among other things. 

 

What does fitness and propriety mean?

Fitness and propriety requirements can differ depending on the regulator or government body you are bound by.  In the health and social care sector, specific to the CQC requirements, fitness and propriety means the following:

  • good character:
  • whether the person has been convicted in the UK of any offence or been convicted elsewhere of any offence which, if committed in any part of the UK, would constitute an offence – a full DBS check should be obtained and if the individual has within the last five years lived in another jurisdiction, an equivalent check should be obtained from that jurisdiction;
  • whether the person has been erased, removed or struck-off a register of professionals maintained by a regulator of health care or social work professions;
  • qualifications, competency, skills and experience necessary for the office, position or work for which they are employed;
  • health – with reasonable adjustments they are able to properly perform tasks which are intrinsic to their office or position for which they are employed;
  • that the individual has not been responsible for, privy to, contributed to or facilitated any serious misconduct or mismanagement (whether unlawful or not) in the course of carrying on a regulated activity or providing a service elsewhere which, if provided in England, would be a regulated activity;
  • the ground of unfitness does not apply to the individual:
  • the person is an undischarged bankrupt or a person, whose estate has had sequestration awarded in respect of it and which has not been discharged;
  • the person is the subject of a bankruptcy restrictions order, an interim bankruptcy restrictions order or an order to the like effect made in Scotland or Northern Ireland;
  • the person is a person to whom a moratorium period under a debt relief order applies under Part VIIA (debt relief orders) of the Insolvency Act 1986;
  • the person has made a composition or arrangement with, or granted a trust deed for, creditors and not been discharged in respect of it;
  • the person is included in the children’s barred list or the adults’ barred list maintained under section 2 of the Safeguarding Vulnerable Groups Act 2006, or in any corresponding list maintained under an equivalent enactment in force in Scotland or Northern Ireland; and
  • the person is prohibited from holding the relevant office or position, or in the case of an individual from carrying on the regulated activity, by or under any enactment.

 

What do providers have to do?

Providers need to ensure that they have systems and processes in place which are designed to ensure all new and existing directors are, and continue to meet the fit and proper person requirements set out in Regulation 5.  Such systems should also ensure that any appointments do not conflict with the unfitness criteria set out in Schedule 4 to the Regulations.

In practice this means either using purpose built software to ensure each of the checks required is completed, or having Human Resources (“HR”) procedures in place that can make sure each of these matters is checked off.  Providers must ensure the directors continue to meet the requirements and can do so by having a process in place to carry out periodic checks in accordance with Regulation 5. Alternatively, or in tandem, the inclusion of a provision within the director’s contract or a HR policy requiring declaration of any issues which may call into question fitness and propriety is a good tool.  Best practice would include mandatory re-checks on a regular cycle i.e. annually.

It is without a doubt that providers will, to a certain extent, be reliant on directors to provide them with accurate information to satisfy the fit and proper criteria in Regulation 5.  The CQC recognises this, so if the CQC is concerned about an individual’s appointment or continuing position, the CQC will instead look to ensure the provider made every reasonable effort to assure itself about the applicant’s fitness and propriety rather than simply making a decision that the provider has breached the requirements of Regulation 5. 

Providers very clearly hold significant responsibilities to maintain their CQC registration, for the very important reason that public protection in a caring role is integral.  Establishing and cementing practices for on-boarding new employees (in particular new directors) is crucial and will serve providers well in years to come.  These practices can then be used for periodic checks to reassure providers that they are continuing to comply with their obligations.

 

Further information

If you have any questions or concerns about the content covered in this blog, please contact Shannett Thompson or any member of the Regulatory team.

 

About the authors 

Shannett is a Partner in the Regulatory Team providing regulatory advice predominantly in the health and social care sector. She is also a member of the private prosecutions team providing advice to individuals, business and charities in respect of prosecutions were traditional agencies are unwilling or unable to act.

Sophie is an Associate, Australian Qualified, in the Regulatory department.  She has extensive experience working for professional regulators and organisations concerning statutory compliance and advising on and prosecuting regulated professionals in the building and health sectors.

 

References 

[1] Directors include interim and permanent board directors, board members and equivalents, those who are responsible for delivering care, including associate directors and another individuals who are members of the board regardless of their voting rights

 

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