Technical / Providers urged to check ‘fit and proper’ process

31 May 2015

The requirement is a response to the Francis inquiry into Mid Staffordshire NHS Foundation Trust, which raised concerns about the conduct and performance of senior managers. The government initially promised some form of barring mechanism to prevent ‘unfit’ NHS directors moving to new jobs within the sector. The NHS has operated a fit and proper persons system for some time, based on guidance and common practice. The new requirement places this on a statutory footing.

The need to be ‘fit and proper’ applies to all board directors of CQC-registered providers or those acting in an equivalent role, including voting and non-voting board members, but not FT governors (Monitor’s separate fit and proper requirements do apply to governors).

The criteria for assessing fitness include:

Being of good character
Having the necessary qualifications
Not having contributed to any serious misconduct or mismanagement.

Specific ‘unfit’ criteria include:

Being bankrupt or subject to bankruptcy restrictions
Having undischarged arrangements with creditors
Being barred from working with children or vulnerable adults
Being prohibited from holding the position under other legislation

Providers’ processes for assessing directors’ fitness are assessed by the CQC on registration or, for registered bodies, as part of the rolling programme of CQC inspections over the year. The regulator also follows up on direct referrals relating to specific directors.

A briefing by Mersey Internal Audit Agency and law firm Hill Dickinson says the unfit criteria are straightforward, but ‘the criteria for assessing fitness introduce a subjective test’.

The briefing says there is concern about the assessment of whether a director has contributed to mismanagement. ‘Whilst it is exactly this type of conduct and performance that the new requirement was designed to target, there is concern as to how a provider organisation can adequately assess an individual’s fitness on this basis,’ it says. For example, it says that an individual’s membership of a failing board does not necessarily mean that each director on that board is automatically unfit.

The CQC has provided some examples of what might constitute serious misconduct and mismanagement and says that a provider will simply be expected to demonstrate all due diligence in carrying out appropriate checks and that it has made all reasonable effort to assure themselves about an individual’s fitness.

There have been some reports of large numbers of referrals to the CQC about directors since the system’s introduction in November. The CQC refused to release exact numbers, but said that only a small number of referrals had been taken forward.

Providers need to have a process in place to support the appointment of new directors. However, they are also advised to undertake a one-off retrospective check on current directors, with provider chairs required to sign off director appointments as meeting the requirement.
• For the briefing go to: tinyurl.com/pp4kk6q

Key questions

Mersey Internal Audit Agency highlights key questions organisations should ask themselves in assessing their processes:

Do you have appropriate systems and processes to assess a director’s fitness on appointment and on an ongoing basis?
Do you have a self-declaration form?
Is internal audit planning to provide assurance of your ‘fitness’ processes?
Do directors’ contracts incorporate the new requirement?
What process is in place to achieve sign- off by the chair?
Do you have processes to investigate concerns regarding a director’s fitness?
Do you have an executive lead responsible for CQC rules compliance?

In brief

Total reward statements will be rolled out in two tranches this year – at the end of August and the end of October, NHS Employers said. It identified three main actions for employers – cleanse data, update contact details and access their data readiness reports on the NHS interface hub.

Monitor has asked FTs to submit their local prices for 2015/16 via its new online portal by 30 June. Trusts should use the new local prices template.

A secretary of state direction has been published on the online NHS finance manual. This requires foundation trust auditors to comply with Monitor’s monitoring regime in relation to the standard of their work when performing audits.

The Welsh auditor general must consider? the impact on future generations of decisions made by public bodies in Wales. The Wellbeing of future generations (Wales) Act 2015 places a statutory duty on the auditor general to audit sustainable development.

Nice update: Learning disability guideline urges community focus

Guideline NG11 covers children, young people and adults and advises on interventions and support for people with a learning disability and behaviour that challenges. About 140,000 people in England are covered by it. The resource impact is likely to affect primary, secondary, tertiary and community care. Services are commissioned by clinical commissioning groups, NHS England and local authorities.

The guideline includes a recommendation about providing support and interventions for people with a learning disability and behaviour that challenges. It is especially important to provide support and interventions in less restrictive settings at home or at school.

Some people receive support as an inpatient, which can be expensive and poor quality. Commissioners should redirect resources from relatively expensive inpatient and out-of-area care to providing care in the community. Initial investment may be needed to set up care facilities outside hospitals, but longer-term savings are forecast as a result of providing care locally in the community.

There are recommendations for training needs and support for staff. People who would benefit from being supported in the community should be discharged from hospital if staff are available to respond to their needs. So savings could be achieved by reducing length of stay in hospital and preventing readmission – unit cost in a low- level secure service is about £400/bed day.

Anti-psychotic medication should only be offered in combination with psychological or other interventions if psychological or other interventions alone do not produce change within an agreed time. Medication tends to be used first before psychological interventions – possibly because there are few psychologists and staff trained in behavioural interventions. There may be a need for extra psychology staff in some areas, which will add costs.

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