Fit and Proper Persons: Directors and Nominated Persons

1. Introduction

People who have director level responsibility for the quality and safety of care at the service and for meeting the Care Quality Commission’s Fundamental Standards, must be fit and proper to carry out this important role.

Fit and proper persons include:

• board directors – directors are the group of people constituted (formally or informally) as the decision-making body of the organisation;
• board members;
• any individuals who perform functions equivalent to the functions of a board director;
• associate directors and any other individuals who are members of the board irrespective of their voting rights;
• trustees of charitable bodies and members of the governing bodies of unincorporated associations.

1.1 To whom the regulation applies

The regulation applies to interim positions as well as permanent appointments.

Providers must not have an unfit director in position. Ultimately, a provider should determine which individuals fall within the scope of the regulation, and the CQC will take a view on whether they have done this effectively.

If a provider is a local authority, the CQC will not expect it to apply the requirement to elected members, as they are accountable through a different route. But it will apply to the relevant local authority officers at management level who are responsible for controlling and supervising the service.

Providers are now delivering different types of care services across traditional boundaries, with some emerging new models of providing care, which can be in any organisational form. The CQC refers to these as ‘complex providers’. Fit and proper persons requirements (FPPR) applies to the directors of whatever that organisational form happens to be.

Some new models comprise multiple providers working together (for example, multiple NHS trusts working together or multiple primary care providers). In these cases, FPPR applies to the directors of each legal provider that make up the network.

1.2 When does the regulation not apply?

The regulation applies to all registered providers, unless they are an individual or a partnership (other than limited liability partnerships) small enterprise which are not limited companies, GP practices or traditional GP partnerships.

A provider service run by adult social care will not be covered by FPPR.

The regulation does not apply to governors of a foundation trust.

2. Characteristics

The service will take all reasonable steps to ensure that the person responsible for supervising the management of the running of the service:

• is of good character, honest, reliable and trustworthy;
• is physically and mentally able to do the job, with a plan of support that sets out any reasonable adjustments where necessary. This means they:
  • do not present a risk to people who use services because of any illness or medical condition they have;
  • are not placed at risk by the work they will do because of any illness or medical condition they have.
• has the necessary qualifications, skills and experience to supervise the management of the running of the service; and
• is able to supply, or arrange for the availability of, the following information:
  • proof of identity including a recent photograph;
  • an enhanced criminal record check (see Disclosure and Barring);
  • satisfactory evidence of conduct in previous employment concerned with the provision of services relating to:
    • health or social care; or
    • children or vulnerable adults with care and support needs.
  • where previously employed in a position whose duties involved work with children or vulnerable adults with care and support needs, satisfactory verification, so far as reasonably practicable, of the reason why that employment ended;
  • satisfactory documentary evidence of any relevant qualification;
  • a full employment history, together with a satisfactory written explanation of any gaps in employment;
  • satisfactory information about any physical or mental health conditions which are relevant to their ability to carry on, manage or work for the home.

The service will advise the CQC in writing of the identity of the person responsible for supervising the management of the running of the service. In addition, it will take all reasonable steps to ensure that the person responsible for supervising the management of the running of the service:

• has been subject to all necessary checks;
• has their qualifications, knowledge and skills updated on a regular basis;
• has an awareness and knowledge of diversity and human rights and applies in practice the competencies to support people’s diverse needs and human rights;
• is aware of the services’ policies, procedures, legislation and standards. Knows who they are able to contact when expert advice is needed;
• is able to respond to any requests from the registered manager for resources in order to meet the Care Quality Commission’s Fundamental Standards;
• is able to empower the registered manager, where one is employed, and appropriately delegate authority to them so that they can effectively run the service on a day-to-day basis;
• knows how to safeguard people and has completed relevant training.

If the service discovers information that suggests they are not of good character after they have been appointed to a role, it must take appropriate and timely action to investigate and rectify the matter. Where the service considers them to be suitable, despite existence of information relevant to issues detailed above, reasons should be recorded for future reference and made available.

3. Qualifications, Skills and Competencies

Where the service considers a director’s role requires specific qualifications, it must make this clear and only appoint candidates who meet the required specification, including any requirements to be registered with a professional regulator. A process should be in place for assessing and checking that the candidate holds the required qualifications and has the competence, skills and experience required, (which may include appropriate communication and leadership skills and a caring and compassionate nature) to undertake the role. These must be followed in all cases and relevant records kept. The CQC expects all providers to be aware of, and follow, the various guidelines that cover value based recruitment, appraisal and development, and disciplinary action, including dismissal for chief executives, chairs and directors, and to have implemented procedures in line with the best practice. This includes The 7 Principles of Public Life (Nolan principles).

4. Health of a Director

This aspect of the regulation relates to a person’s ability to carry out their role. This does not mean that people who have a long-term condition, a disability or mental illness cannot be appointed. When appointing a person to a role, providers must have processes for considering their physical and mental health in line with the requirements of the role. All reasonable steps must be made to make adjustments for people to enable them to carry out their role. These must be in line with requirements to make reasonable adjustments for employees under the Equality Act 2010.

5. What Constitutes a Breach?

The regulation is breached if a provider has in place someone who does not satisfy the FPPR. Evidence of this could be if:

• a director is unfit on a ‘mandatory’ ground, such as a relevant undischarged conviction or bankruptcy. The provider will determine this;
• a provider does not have a proper process in place to enable it to make the robust assessments required by the FPPR;
• on receipt of information about a director’s fitness, a decision is reached on the fitness of the director that is not in the range of decisions that a reasonable person would make.

The CQC cannot prosecute for a breach of this regulation, but it can take regulatory action.

6. Previous History of Misconduct or Mismanagement

The service must assure itself, and not appoint, a director who has been responsible for, privy to, contributed to, or facilitated any serious misconduct or mismanagement (whether unlawful or not) the course of carrying on a regulated activity or providing a service elsewhere, which if provided in England would be a regulated activity. This includes investigating any allegation of such and making independent enquiries.

A director may be implicated in a breach of a health and safety requirement or another statutory duty or contractual responsibility because of how the entire management team organised and managed its organisation’s activities. In this case, the service must establish what role the director played in the breach so that they can judge whether it means they are unfit. If the evidence shows that the breach is attributable to the director’s conduct, CQC would expect the service to find that they are unfit. Although providers have information on when convictions, bankruptcies or similar matters are to be considered ‘spent’ there is no time limit for considering serious misconduct or responsibility for failure in a previous role.

7. Fitness Test

A director must be subject to a check by the Disclosure and Barring Service (DBS). The service must seek all available information to assure themselves that directors do not meet any of the elements of the unfit person test. Robust systems should be in place to assess them in relation to bankruptcy, sequestration, insolvency and arrangements with creditors. In addition, where a director meets the eligibility criteria, It should be established whether they are on the DBS children’s and / or adults safeguarding barred list and whether they are prohibited from holding the office under other laws such as the Companies Act or Charities Act.

If information is discovered that suggests the director is unfit after they have been appointed to a role, it must take appropriate and timely action to investigate and rectify the matter. The service must assess and regularly review the fitness of directors to ensure that they remain fit for the role they are in. It must decide how often to review fitness. Where there are concerns about a person’s fitness after they have been appointed to a role which either they or others have identified, procedures as laid down in the Director’s Service Agreement will be followed. The service must investigate, in a timely manner, any concerns about a director’s fitness or ability to carry out their duties. Where concerns are substantiated, it must take proportionate, timely action. Where a director’s fitness is being investigated, appropriate interim measures may be required to minimise any risk to people who use the service.