NLG(15)277. DATE 30 June Trust Board of Directors Public REPORT FOR. Wendy Booth, Director of Performance Assurance & Trust Secretary

Transcription

1 NLG(15)277 DATE 30 June 2015 REPORT FOR Trust Board of Directors Public REPORT FROM Wendy Booth, Director of Performance Assurance & Trust Secretary CONTACT OFFICER As above SUBJECT Fit & Proper Persons Test: Draft Gap Analysis BACKGROUND DOCUMENT (IF ANY) N/A REPORT PREVIOUSLY CONSIDERED BY & DATE(S) N/A EXECUTIVE COMMENT (INCLUDING KEY ISSUES OF NOTE OR, WHERE RELEVANT, CONCERN AND / OR NED CHALLENGE THAT THE BOARD NEED TO BE MADE AWARE OF) The report provides the draft gap analysis in response to the requirements of the new Fit & Proper Persons Test HAVE THE STAFF SIDE BEEN CONSULTED ON THE PROPOSALS? N/A HAVE THE RELEVANT SERVICE USERS/CARERS BEEN CONSULTED ON THE PROPOSALS? N/A ARE THERE ANY FINANCIAL CONSEQUENCES ARISING FROM THE RECOMMENDATIONS? NO IF YES, HAVE THESE BEEN AGREED WITH THE RELEVANT BUDGET HOLDER AND DIRECTOR OF FINANCE, AND HAVE ANY FUNDING ISSUES BEEN RESOLVED? N/A ARE THERE ANY LEGAL IMPLICATIONS ARISING FROM THIS PAPER THAT THE BOARD NEED TO BE MADE AWARE OF? NO WHERE RELEVANT, HAS PROPER CONSIDERATION BEEN GIVEN TO THE NHS CONSTITUTION IN ANY DECISIONS OR ACTIONS PROPOSED? WHERE RELEVANT, HAS PROPER CONSIDERATION BEEN GIVEN TO SUSTAINABILITY IMPLICATIONS (QUALITY & FINANCIAL) & CLIMATE CHANGE? THE PROPOSAL OR ARRANGEMENTS OUTLINED IN THIS PAPER SUPPORT THE ACHIEVEMENT OF THE TRUST OBJECTIVE(S) AND COMPLIANCE WITH THE REGULATORY STANDARDS LISTED YES YES Ensures compliance with statutory requirements ACTION REQUIRED BY THE BOARD The Board is asked to note the gap analysis and proposed actions

2 Fit and Proper Persons Test Introduction New fundamental standards regulations the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 came in to force for all care providers on 1 April Included within these regulations is a new fit and proper person requirement for directors which came in to force for NHS bodies in November The term NHS bodies means NHS Trusts, NHS Foundation Trusts and special health authorities. The introduction of a statutory fit and proper persons requirement for directors was one of the key recommendations of the Francis Report. The fit and proper persons test will apply to Directors (both executive and non-executive) and individuals performing the functions of, or functions equivalent or similar to the functions of a director. The requirement for fit and proper persons (Regulation 5) Regulation 5 states that a provider must not appoint or have in place an individual as a director who: is not of good character; does not have the necessary qualifications, competence, skills and experience; is not physically and mentally fit (after adjustments) to perform their duties. Regulation 5 also decrees that directors cannot 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. This new requirement will be tested by the CQC during inspections of NHS bodies under their well led domain. Ultimately it is for providers to determine which individuals fall within the scope of the regulation and for CQC to take a view on whether the provider is meeting the requirements of Regulation 5. Note: For the purposes of NLG, the fit and proper person requirement will apply to all (existing, interim, permanent) executive and non-executive directors of the Board (whether voting or non-voting). Directorate of Performance Assurance & Trust Secretary, June 2014 Page 2/15

3 Meeting the requirements of Regulation 5 To meet the requirement of Regulation 5, a provider has to: provide evidence that appropriate systems and processes are in place to ensure that all new directors and existing directors are, and continue to be, fit, and that no appointments meet any of the unfitness criteria set out in Regulation 5; make every reasonable effort to assure itself about an individual by all means available; make specified information about directors available to CQC; be aware of the various guidelines available and to have implemented procedures in line with this best practice; ensure that where a director no longer meets the fit and proper persons requirement and that individual is registered with a health or social care professional regulator, inform the regulator in question, and take action to ensure the position is held by a person meeting the requirement. It will be the responsibility of the Chairman of the organisation specifically to discharge the requirement placed on the provider to ensure that all directors meet the fitness test and do not meet any of the unfit criteria. During a CQC inspection, the specific key line of enquiry and prompts that are relevant are under the well led key question as follows: W3: how does the leadership and culture reflect the vision and values, encourage openness and transparency and promote good quality care? o Prompt: do leaders have the skills, knowledge, experience and integrity that they need both when they are appointed and on an ongoing basis? o Prompt: do leaders have the capacity, capability and experience to lead effectively? Where breaches of the fit and proper persons requirement are identified, CQC will now be able to take enforcement action in accordance with its Enforcement Policy. Assurance Appendix A outlines the specific requirements of the fit and proper persons test and how the Trust is currently meeting those requirements. Where additional actions have been identified from this gap analysis exercise, these details are also included. In order to provide further assurance to the Trust Board that the Trust is meeting the new fit and proper persons requirements (Regulation 5) and / or to identify any additional actions required, the outcome of the gap analysis and the evidence and assurances outlined at Appendix A will also be Directorate of Performance Assurance & Trust Secretary, June 2014 Page 3/15

4 reviewed by KPMG in early July 2015, as part of the 2015/16 Internal Audit Programme. The outcome from that review will be submitted to the July 2015 meeting of the Trust Board. Board Action Required The Board is asked to: note the outcome of the gap analysis exercise and proposed actions (requirements 2 & 12); note the planned review by KPMG. References: CQC Regulation 5: Fit & Proper Persons: Directors Information for NHS Bodies (March 2015) CQC Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 (Part 3) Guidance for Providers on Meeting the Regulations (March 2015) NHS Providers Briefing: Complying with the Health & Social Care Act 2008 (Regulated Activities) Regulations 2014: Fit & Proper Persons Test (March 2015) Directorate of Performance Assurance & Trust Secretary, June 2014 Page 4/15

5 Appendix A Standard Recommended Assurance Trust Evidence At Appointment: 1. Providers should make every effort to ensure that all available information is sought to confirm that the individual is of good character as defined in Schedule 4, Part 2 of the regulations. (Schedule.4, Part 2: Whether the person has been convicted in the United Kingdom of any offence or been convicted elsewhere of any offence which, if committed in any part of the United Kingdom, would constitute an offence. Whether the person has been erased, removed or struck-off a register of professionals maintained by a regulator of health care or social work professionals.) Pre-employment checks in accordance with NHS Employers pre-employment check standards including: two references, one of which must be most recent employer; qualification and professional registration checks; right to work checks; proof of identity checks; occupational health clearance; DBS checks (where appropriate); search of insolvency and bankruptcy register; search of disqualified directors register Recruitment & Selection Policy & Procedures Trac Recruitment System Pre-employment Checklist Fit & Proper Persons Checklist (includes use of duedil search facility: Completed references (now automated within the Trac System) Outcome of other pre-employment checks Outcome of DBS checks (where appropriate) Signed declarations from applicants (which includes the risk of dismissal for providing false or misleading information) Register search results

6 Standard Recommended Assurance Trust Evidence 2. Where a provider deems the individual suitable despite not meeting the characteristics outlined in Schedule 4, Part 2 of these regulations, the reasons should be recorded and information about the decision should be made available to those that need to be aware. 3. Where specific qualifications are deemed by the provider as necessary for a role, the provider must make this clear and should only employ those individuals that meet the required specification, including any requirements to be registered with a professional regulator. Report and debate at nomination / appointment committee (for Non-Executive Directors) Report and recommendation from nominations / appointment committee to Council of Governors (for Non-Executive Directors) Report and debate by nominations Committee (for Executive Directors) Report and recommendation to the Trust Board (for Executive Directors) External advice sought as necessary Requirements included within the job description and person specification for all relevant posts Checked as part of the pre-employment checks Reports to relevant meetings (nominations / Appointments & Remuneration Committee (ARC), COG, Trust Board), as appropriate Minutes of relevant meetings (nominations / ARC), COG, Trust Board), as appropriate External advice, as appropriate Proposed action: consider need to review & amend the following to reflect the requirement outlined in 2 and in respect of the fit & proper persons test more widely where this is not currently explicit: Recruitment & Selection Policy & Procedures Trust Constitution Process for the appointment of the Chairman, Deputy Chairman and Non-Executive Directors Recruitment & Retention Policy & Procedures Job Descriptions / Person Specifications Outcome of pre-employment checks Trac Recruitment System Directorate of Performance Assurance & Trust Secretary, June 2014 Page 6/15

7 Standard Recommended Assurance Trust Evidence 4. The provider should have appropriate processes for assessing and checking that the individual holds the required qualifications and has the competence, skills and experience required, (which may include appropriate communication and leaderships skills and a caring and compassionate nature), to undertake the role; these should be followed in all cases and relevant records kept. Employment checks include a candidate s qualifications and employment references Recruitment processes include qualitative assessment and values-based questions Decisions and reasons for decisions recorded in relevant minutes Recruitment & Selection Policy & Procedures Trac Recruitment System and completed checks Psychometric testing is in place to assess employment suitability including Trust candidate fit Completed psychometric testing, as appropriate 5. In addition to 4. above, the provider may consider that an individual can be appointed to a role based on their qualifications, skills and experience with the expectation that they will develop specific competence to undertake the role within a specified timeframe. Discussions and recommendations at nominations / appointment committee (for Non-Executive Directors) Report and recommendation from nominations / appointment committee to Council of Governors (for Non-Executive Directors) Discussions and recommendations by nominations committee (for Executive Directors) Report and recommendation to the Trust Board (for Executive Directors) Follow-up as part of continuing review and appraisal. Reports to and minutes of relevant meetings (nominations / ARC, COG, Trust Board), as appropriate Personal Files: Appointment letters Personal Development Plans Outcome of appraisals Directorate of Performance Assurance & Trust Secretary, June 2014 Page 7/15

8 Standard Recommended Assurance Trust Evidence 6. When appointing relevant individuals the provider has processes for considering a person s physical and mental health in line with the requirements of the role, all subject to equalities and employment legislation and to due process. Self-declaration subject to clearance by occupational health as part of the preemployment process. Completed self-declarations / Occupational Health clearance 7. Wherever possible, reasonable adjustments are made in order that an individual can carry out the role. Self-declaration of adjustments required NHS Employment Check Standards Trust Board / COG decision (as appropriate) Recruitment & Selection Policy & Procedure Equality & Diversity Policy Completed self-declarations / Occupational Health clearance, as appropriate Directorate of Performance Assurance & Trust Secretary, June 2014 Page 8/15

9 Standard Recommended Assurance Trust Evidence 8. The provider has processes in place to assure itself that the individual has not been at any time responsible for, privy to, contributed to, or facilitated, any serious misconduct or mismanagement in the carrying on of a regulated activity; this includes investigating any allegation of such potential behaviour. Where the individual is professionally qualified, it may include fitness to practise proceedings and professional disciplinary cases. ( Responsible for, contributed to or facilitated means that there is evidence that a person has intentionally or through neglect behaved in a manner which would be considered to be or would have led to serious misconduct or mismanagement. Privy to means that there is evidence that a person was aware of serious misconduct or mismanagement but did not take the appropriate action to ensure it was addressed. Serious misconduct or mismanagement means behaviour that would constitute a breach of any legislation/enactment CQC deems relevant to meeting these regulations or their component parts. ) NB. This provision applies equally to executives and nonexecutives. Consequence of false of inaccurate or incomplete information included in recruitment packs. Employment checks in accordance with NHS Employers pre-employment check standards including: Self-declarations of fitness including explanation of past conduct / character issues where appropriate by candidates; two references, one of which must be most recent employer; qualification and professional registration checks; right to work checks; proof of identity checks; occupational health clearance; DBS checks (where appropriate); search of insolvency and bankruptcy register; search of disqualified directors register Included in reference requests Recruitment & Selection Policy & Procedures Trac Recruitment System Pre-employment Checklist Fit & Proper Persons Checklist (includes use of duedil search facility: Completed references (now automated within the Trac System) Outcome of other pre-employment checks Outcome of DBS checks (where appropriate) Signed declarations from applicants (which includes the risk of dismissal for providing false or misleading information) Register search results Directorate of Performance Assurance & Trust Secretary, June 2014 Page 9/15

10 Standard Recommended Assurance Trust Evidence 9. The provider must not appoint any individual who has been responsible for, privy to, contributed to, or facilitated, any serious misconduct or mismanagement (whether lawful or not) in the carrying on of a regulated activity; this includes investigating any allegation of such potential behaviour. Where the individual is professionally qualified, it may include fitness to practise proceedings and professional disciplinary cases. NB. The CQC accepts that providers will use reasonable endeavours in this instance. Consequence of false of inaccurate or incomplete information included in recruitment packs Core HR policies for appointments and remuneration Checks set out in 1. & 8. above Included in reference requests Recruitment & Selection Policy & Procedures Trac Recruitment System Pre-employment Checklist Fit & Proper Persons Checklist (includes use of duedil search facility: Completed references (now automated within the Trac System) Outcome of other pre-employment checks Outcome of DBS checks (where appropriate) Signed declarations from applicants (which includes the risk of dismissal for providing false or misleading information) Register search results Directorate of Performance Assurance & Trust Secretary, June 2014 Page 10/15

11 Standard Recommended Assurance Trust Evidence 10. Only individuals who will be acting in a role that falls within the definition of a regulated activity as defined by the Safeguarding Vulnerable Groups Act 2006 will be eligible for a check by the Disclosure and Barring Service (DBS). NB. The CQC recognises that it may not always be possible for providers to access a DBS check as an individual may not be eligible. DBS checks are undertaken only for those posts which fall within the definition of a regulated activity or which are otherwise eligible for such a check to be undertaken DBS Policy & Procedures Completed DBS checks for eligible postholders 11. As part of the recruitment/appointment process, providers should establish whether the individual is on a relevant DBS list. Eligibility for DBS checks will be assessed for each vacancy arising. DBS Policy & Procedure Completed DBS checks for eligible postholders Directorate of Performance Assurance & Trust Secretary, June 2014 Page 11/15

12 Continuing Provisions: 12. The fitness of directors is regularly reviewed by the provider to ensure that they remain fit for the role they are in; the provider should determine how often fitness must be reviewed based on the assessed risk to business delivery and/or the service users posed by the individual and/or role. Post-holders undertake annual declarations of fitness to continue in post Assessment of continued fitness to be undertaken each year as part of appraisal process Checks of insolvency and bankruptcy register and register of disqualified directors to be undertaken each year as part of the appraisal process Board / Council of Governors review checks and agree the outcome Annual declaration of fitness to continue in post introduced (2015) Completed annual declaration for all executive & non-executive directors (included in personal files) Non-executive director appraisal process and completed appraisals Executive director appraisal process and completed appraisals Reports to relevant meetings (ARC), COG, Trust Board) Minutes of relevant meetings (ARC), COG, Trust Board) Proposed Action: 1. Annual declarations by directors process, appraisal process & chairman s declaration to be aligned and, supported by assurances from ARC (for executive directors and Remuneration Committee (for executive directors), reported through the Trust Board / CoG 2. Template to be developed for chairman s declaration Directorate of Performance Assurance & Trust Secretary, June 2014 Page 12/15

13 13. If a provider discovers information that suggests an individual is not of good character after they have been appointed to a role, the provider must take appropriate and timely action to investigate and rectify the matter. The provider has arrangements in place to respond to concerns about a person s fitness after they are appointed to a role, identified by itself or others, and these are adhered to. Core HR policies provides for such investigations Contracts allow for termination in the event of non-compliance with regulations and other requirement Contracts (for executive directors and director-equivalents) and agreements (for non-executives) incorporate maintenance of fitness as a contractual requirement Managing Poor Performance Policy / Procedure Disciplinary Policy / Procedure Contracts of Employment (executive and non-executive directors) Completed appraisals Personal Files ( s / letters / files notes of monitoring of performance), as appropriate Records of management action including requests for external review, as appropriate Minutes of relevant meetings e.g. Trust Board Register of Directors Interests (reviewed annually) and requirement at Trust Board meetings to declare any conflicts of interest Directorate of Performance Assurance & Trust Secretary, June 2014 Page 13/15

14 14. The provider investigates, in a timely manner, any concerns about a person s fitness or ability to carry out their duties, and where concerns are substantiated, proportionate, timely action is taken; the provider must demonstrate due diligence in all actions. Core HR policies include the necessary provisions Action taken and recorded as required Managing Poor Performance Policy / Procedure Disciplinary Policy / Procedure Completed appraisals Personal Files ( s / letters / files notes of monitoring of performance), as appropriate Records of management action including requests for external review, as appropriate Minutes of relevant meetings e.g. Trust Board 15. Where a person s fitness to carry out their role is being investigated, appropriate interim measures may be required to minimise any risk to service users. Core HR policies Action taken and recorded as required Managing Poor Performance Policy / Procedure Disciplinary Policy / Procedure Management action taken to backfill posts as necessary Personal Files Minutes of relevant meetings e.g. Trust Board Directorate of Performance Assurance & Trust Secretary, June 2014 Page 14/15

15 16. The provider informs others as appropriate about concerns/findings relating to a person s fitness; for example, professional regulators, CQC and other relevant bodies, and supports any related enquiries/investigations carried out by others. Core HR policies Action taken and recorded as required Managing Poor Performance Policy / Procedure Disciplinary Policy / Procedure Personal Files Communications with / referrals made to other agencies Directorate of Performance Assurance & Trust Secretary, June 2014 Page 15/15