Fit and proper person requirements (FPPR) Frequently asked questions from the webinar (2 September 2014)

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1 Fit and proper person requirements (FPPR) Frequently asked questions from the webinar (2 September 2014) Q. What changes are coming into force? New regulations setting out the CQC s fundamental standards will be introduced for all care providers from 1 April The fundamental standards have been reduced to 11 instead of 16 and these are meant to be more concise. As part of these fundamental standards there are two new requirements for the NHS bodies the Duty of Candour and the Fit and Proper Person Requirements (FPPR). The timescale to implement these requirements is dependent on Parliamentary approval. Once Parliamentary approval is sought, the regulations will come into force 21 days later so around mid November NHS Employers will continue to work closely with the CQC to ensure employers are notified of the implementation date at the earliest opportunity. Notification will be published through our website and the NHS Workforce Bulletin. The CQC are currently in consultation on the fundamental standards, they are also consulting on their supporting guidance about the standards which outlines the Fit and Proper Person Requirements (FPPR) in parallel. It will therefore be important for employers to familiarise themselves with these requirements and take opportunity to take part in the consultation and feedback views. How to respond and feed in to the consultation is detailed at the bottom of this page. Q. Why is there a need to introduce the FPPR? The key intention of the new requirements is to ensure the overall quality and safety of care. Making sure that individuals appointed in the most senior of positions have responsibility and accountability for the standard of care within their organisation.

2 Q. What are employers required to check under the FPPR? The new requirements mean that all directors must: be of good character have the qualifications, skills and experience necessary for the position being offered not have been responsible for any misconduct or mismanagement in the course of any employment with a CQC registered provider not be prohibited from holding the relevant position under any other law. The term good character can be quite subjective but if you think of this in terms of openness, honesty and integrity which employers should assess as part of their recruitment processes. In relation to fitness, employers already have a general obligation to only employ individuals who are fit, have the right set of qualifications, skills and experience and, with all reasonable adjustments, are able to undertake the roles and responsibilities of the vacancy being filled. The NHS Employment Check Standards outline the legal and mandatory checks employers should undertake for all appointments into NHS positions including appointments to Board level positions, so the new regulations are not introducing something new or unfamiliar. However, this is not just about recruitment but retention as well NHS providers will need to be able to confirm with the CQC that directors remain fit throughout their employment, and that they have access to ongoing development to make sure they continue to be fit. The fundamental standards provide clear criteria about what is meant by fitness. The new element to the requirements is unfitness, including misconduct and mismanagement, which has never been considered before. The CQC is keen to work closely with provider organisations to determine what is required and what this will mean for individuals over the coming months. Q. How will the CQC apply this test? It is important to stress that FPPR is a requirement of registration. The CQC will be expecting organisations to meet this requirement as part of their initial registration and ongoing registration with the CQC. The CQC will not be applying a test; their role is to ensure that the FPPR is met.

3 Q. Which organisations will the new regulations apply to? The new regulations on the FRRP and Duty of Candour will come into force for all NHS trusts, including Foundation Trusts and Special Health Authorities from mid November 2014 (subject to Parliamentary passage, the exact date is therefore yet to be confirmed). The regulations will be extended to all NHS providers that are required to register with the Care Quality Commission (CQC), from April The CQC s Fundamental Standards will apply to all NHS providers from April Q. Will the scope of the new regulations include Clinical Commissioning Groups, and if so what s the timescale for implementation? Clinical Commissioning Groups are not required to register with the CQC, and therefore regulations will not apply to them. Q. Which staff will the regulations apply to? The new regulations will apply to all Board members including executive and non executive directors or their equivalent, and the executive team. It will apply to all interim directors as well as those in permanent positions. NHS Employers is seeking further clarity from the CQC as to whether or not the new regulations will apply to Governors of the Board. Initial views was that because Governors were elected members and were not required to register with the CQC, then the regulations would not apply. Further information will be provided on this web page once this has been confirmed. Q. Will the regulations apply to members of the Board already in post? The new fitness requirements will apply to all Board members who are appointed on or after the November date (yet to be confirmed). There are no plans to apply the new requirements retrospectively to staff already in post prior to the new regulations coming into force. However, if an existing member of the Board is subsequently investigated and is deemed unfit by their employing organisation, then that employer would need to notify the CQC.

4 Q. Will the new regulations be extended to cover all staff? The fitness requirement already applies to all staff, employers are required to assess this by having robust employment checking processes in place which validate an individual s suitability for the post being offered as defined by the six NHS Employment Check Standards. The new regulations which come into force from mid November 2014 will only apply to Board members. Q. At what stage will the Chair need to confirm that a Director is deemed fit? Where a new appointment is made, Chairs will need to notify the CQC of the new appointment and declare that they meet all requirements and they are not unfit. The Chair should confirm this once an appointment has been offered and all the necessary checks have been undertaken as part of the recruitment process. Q. Are there any special registration requirements for the Chair as the responsible person for FPPR? The CQC place an expectation on Chairs to take on this responsibility because they are the obvious person in the organisation to do that, however there is no legal obligation for them to do so. Potentially Chairs could refuse, and in such cases, the CQC would not be able to apply the FPPR in that situation. Q. What will the CQC be looking for? The CQC will undertake their key lines of enquiry as part of their inspection processes looking at systems and processes in place such as, recruitment, appraisals and ongoing development made available to individuals. Q. What happens if a director is found to be unfit? The test of unfitness will be undertaken by the employing organisation. Where a Director is found unfit, the employing organisation will need to notify the CQC. The CQC already hold information on organisations and individuals registered with them and will be able to confirm if any information is known to them. The CQC will contact Chair of the employing organisation to identify what test has been conducted by the employing organisation to confirm that the individual is unfit and will work with them to identify the course of action.

5 Where the CQC need to use enforcement powers e.g. because the organisation is found not to have the right systems and processes in place, then they may suspend that organisation s registration with them with a request to replace that Director or, in extreme cases, cancel their registration. Q. How will these requirements be aligned with other regulatory requirements? The CQC are working closely with the TDA and Monitor to ensure correct processes are adhered to and are robust. The CQC are keen to ensure that licencing and registration requirements are aligned so that providers will only have to meet the new requirements once. Q. What actions will the CQC take if a person is found unfit? Individuals are not registered with CQC, so the CQC doesn t have the power to take action against the individuals themselves, this will fall to the employing organisation. The CQC will work with organisations and share what information they may hold on that individual, to work through what actions need to be taken. Q. Director level posts are not currently eligible for a disclosure and barring check how do we meet the requirement to ensure Directors are not barred from working with vulnerable groups? The new regulations will not make any amendment to existing legislation which supports eligibility for a check with the Disclosure and Barring Service (DBS). The eligibility criteria for a DBS check and the level of check required is determined by the roles and responsibilities of the job, and the level of contact with patients. Employers will therefore need to provide evidence to the CQC that they have robust recruitment processes in place and they have undertaken all checks that are proportionate within the scope of the law. Employers may consider obtaining a Basic Disclosure through Disclosure Scotland. Existing guidance on eligibility and the application of DBS checks remains current and can be found on the NHS Employers website. Employers can undertake a free check against the list of directors which is held by Companies House to verify if a Director has been barred as a director or is subject to any restrictions.

6 In addition, employers may wish to undertake a financial check to seek assurances against a person s financial background. The type of checks include: Credit information listed at the applicant s current and previous addresses including County Court Judgements (CCJs), insolvencies, bankruptcies etc A credit history report from a credit reference agency UK Directors search, to ascertain whether the applicant holds any current or previous directorships or any disqualified directorships Searches against the Financial Service Authority s (FSA) Individual Register and Prohibited Persons Register. For Board level positions, employers may wish to include relevant questions on the application form such as have you ever been the subject of a County Court Judgement (CCJ)? Further guidelines on financial checks can be found in our extensive Q&A on the NHS Employers website covering employment check requirements see section on employment history and reference checks. NHS Employers will share current guidelines with the CQC to make sure organisations are not being asked to undertake checks that they are not legally entitled to undertake. Q. What will happen next? The CQC consultation on the Duty of Candour and FPPR is due to close on 5 September New regulations are subject to Parliamentary passage but will come into force for NHS trusts (including Foundation Trusts and Special Health Authorities) mid November 2014 (subject to Parliamentary approval), and will apply to all NHS providers registered with them, from April The consultation on their fundamental standards closes on 17 October Regulations will be subject to Parliamentary passage but will come into force for all NHS providers from April 2015.

7 The CQC will continue to work closely with employers, other regulators and Government Departments to define how to implement this new requirement. The CQC will be undertaking a full review to evaluate the lessons learned early in the New Year before wider roll out to all NHS providers, and will be encouraging employers to feedback their views on what s worked and what the challenges have been. NHS Employers will continue to work closely with the CQC to provide a regular updates on the new regulatory requirements as they progress. Updates will be published via this website and through our scheduled Workforce Bulletins. Q. How can I respond to the consultations on the new regulatory requirements? You can respond to each of the CQC consultations in the following ways: Comments on the Duty of Candour and FPPR must be submitted by Friday, 5 September Comments on the Fundamental standards must be submitted by Friday, 17 October, The CQC are aware that there is still a lot to be worked through, we would therefore encourage employers to feed back their views directly to the CQC as part of their consultation before 5 September. Feedback can be submitted to the CQC in the following ways: Online: By your response to cqc.consultation@cqc.org.uk By post: CQC Guidance consultation July 2014, CQC National Customer Service Centre, Citygate, Gallowgate, Newcastle upon Tyne, NE1 4PA If you have any queries which are not covered in this Q&A document or you want to feedback views after the 5 September deadline, please nyla.cooper@nhsemployers.org and NHS Employers will include this information in their ongoing dialogue with the CQC.