Fit and Proper Person Requirements

Transcription

1 Trust Policy and Procedure Document ref. no: PP(16)331 Fit and Proper Person Requirements For use in: For use by: For use for: Document owner: Status: The Appointment and on-going employment of Executive Directors and Non Executive Directors The Chairman and Appointing Officers The Appointment and on-going employment of Executive and Non-Executive Directors Executive Director of Workforce and Communications Approved Purpose of this document To give clear guidance on the Recruitment and on-going employment of Executive Directors and Non-Executive Directors to ensure that the Trust meets the requirements of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 CQC Regulation 5 Fit and Proper Persons. Contents 1. Introduction 2. The Regulations 3. The Requirements 4. The Standards 5. Methods of Assurance Page no Appendix 1 Table of Requirements and assurances methods Appendix 2 F&PP Self Declaration on Appointment. Appendix 3 F&PP Self Declaration at Annual Appraisal HR & Communications Status: Approved Page 1 of 17 1

2 1. Introduction New fundamental standard regulations the Health and Social Care Act 2008(Regulated Activities) Regulations 2014 came into force for all providers on 1 April 2015, subject to Parliamentary process and approval. Within the new regulations, the Duty of Candour and the Fit and Proper Person Requirements for Directors came into force earlier for NHS bodies than for other providers in November This policy outlines how the Trust will meet the requirements of the Fit and Proper Person standard. 2. The Regulation: Fit and Proper Person Requirement for Directors Previously providers had a general obligation to ensure that they only employed individuals who were fit for their role and they were required to assess the fitness of nominated individuals (organisationally determined, but usually Directors) to ensure that they were of good character, were physically and mentally fit, had the necessary qualifications, skills and experience for the role, and could supply certain information (including a Disclosure and Barring Service (DBS) check and a full employment history). The new Fit and Proper Person requirement for directors has a wider impact, in both the scope of its application and the nature of the test. It makes it clear that individuals who have authority in organisations that deliver care are responsible for the overall quality and safety of that care and, as such, can be held accountable if standards of care do not meet legal requirements. It will apply to all Directors and equivalents. This will include both Executive and Non-Executive Directors of NHS Trusts and Foundation Trusts. It will be the responsibility of the Chair to ensure that all Directors meet the fitness test and do not meet any of the unfit criteria. In addition to the usual requirements of good character, health, qualifications, skills and experience, the regulation goes further by barring individuals who are prevented from holding the office (for example, under a Directors Disqualification Order) and significantly, excluding from office people who: "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, or discharging any functions relating to any office or employment with a service provider." This is a significant restriction which, it is stated, will enable the Care Quality Commission ( CQC ) to decide that a person is not fit to be a Director on the basis of any misconduct or incompetence in a previous role for a service provider. This would be the case even if the individual was working in a more junior capacity at that time, or working outside England. HR & Communications Status: Approved Page 2 of 17 2

3 3 Requirements The regulations will require the Chair to: confirm to the CQC that the fitness of all new Directors has been assessed in line with the regulations; and declare to the CQC in writing that they are satisfied that they are fit and proper individuals for that role. A notification is already required following a new Director-level appointment. The CQC will crosscheck notifications about new Directors against other information that they hold or have access to, to decide whether we want to look further into the individual s fitness. They will also have regard to any other information that they hold or obtain about Directors in line with current legislation on when convictions, bankruptcies or similar matters are to be considered spent. Where a Director is associated with serious misconduct or responsibility for failure in a previous role, the CQC will have regard to the seriousness of the failure, how it was managed, and the individual s role within that. There is no time limit for considering such misconduct or responsibility. Where any concerns about an existing Director come to the attention of the CQC, they may also ask the Trust to provide the same assurances. Should the CQC use their enforcement powers to ensure that all Directors are fit and proper for their role, they will do this by imposing conditions on the provider s registration to ensure that the provider takes the appropriate action to remove the Director. 4. Standards To meet the requirements of this regulation, the Trust must carry out all necessary checks to confirm that persons who are appointed to the role of Director (or similar senior level role) in an NHS trust or NHS Foundation Trust are: of good character (Schedule 4, Part 2 of the regulations); have the appropriate qualifications, are competent and skilled (including that they show a caring and compassionate nature and appropriate aptitude); have the relevant experience and ability (including an appropriate level of physical and mental health, taking account of any reasonable adjustments); and exhibit appropriate personal behaviour and business practices. In addition, people appointed to these roles must not have been responsible for, or knowingly contributed to, or facilitated any serious misconduct or mismanagement in carrying on a regulated activity. The CQC does recognise that a provider may not have access to all relevant information about a person, or that false or misleading information may be supplied to them. However, they expect providers to demonstrate due diligence in carrying out checks and that they have made every reasonable effort to assure themselves about an individual by all means available to them. HR & Communications Status: Approved Page 3 of 17 3

4 5. Assurance The table at appendix A identifies the specific requirements of the fit and proper persons test and sets alongside those requirements how the Trust intends to assure itself about the suitability of individuals. HR & Communications Status: Approved Page 4 of 17 4

5 Appendix 1 Standard Assurance Evidence 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. (Sch.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.) Employment checks are undertaken in accordance with NHS Employment Check Standards and include: Two references, one of which must be most recent employer qualification and professional registration checks right to work checks identity checks occupational health clearance DBS checks (where appropriate) In addition, we also carry out: Declarations of fitness by candidates Search of insolvency and bankruptcy register (*) Search of disqualified directors register (*) References Photo ID Other pre-employment checks DBS checks where appropriate F&PP Signed declarations Forms Register search results 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. Disciplinary policy and procedure provides for such investigations. Revised contracts allow for termination in the event of non-compliance with regulations and other requirements. Contracts of employment (for EDs and director-equivalents) Terms and conditions of service agreements (for NEDs) Disciplinary policy and procedure HR & Communications Status: Approved Page 5 of 17 5

6 Standard Assurance Evidence 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. This would be the subject of debate at the Remuneration Committee (for Executive Directors and Director-equivalents) and at the Council of Governors (for Non-Executive Directors). The minutes would record such decisions. The Chair would take advice from internal and external advisors as appropriate. Minutes of meetings. 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. This requirement is included within the job description for relevant posts and is checked as part of the preemployment checks. JD/Person Specification Recruitment policy and procedure 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. The recruitment process also includes qualitative assessment and values-based questions. Recruitment policy and procedure Competency Based questions Values-based questions HR & Communications Status: Approved Page 6 of 17 6

7 Standard Assurance Evidence 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. Any such decision would be discussed by the Remuneration Committee or Council of Governors and would be minuted. Actions would be subject to followup as part of ongoing review and appraisal. NED appraisal framework ED appraisals 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 post-holders are subject to clearance by Occupational Health as part of the pre-employment process. Occupational Health clearance Wherever possible, reasonable adjustments are made in order that an individual can carry out the role. This is a current requirement in the Trust s policy Recruitment and Retention of People with Disabilities. Trust policy for the Recruitment and retention of People with Disabilities HR & Communications Status: Approved Page 7 of 17 7

8 Standard Assurance Evidence 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. ) This has been incorporated as a specific declaration as part of the pre-employment process. It is also incorporated into a revised reference request template for all Director and Director-equivalent posts NED Recruitment Information pack to include FPPT information F&PP Signed declarations Forms Reference Request for ED/NED HR & Communications Status: Approved Page 8 of 17 8

9 Standard Assurance Evidence 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. This has been incorporated as a specific declaration as part of the pre-employment process. It is also incorporated into a revised reference request template for all Director and Director-equivalent posts. NED Recruitment Information pack Reference Request for ED/NED 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). (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 DBS checks for eligible post-holders As part of the recruitment/appointment process, providers should establish whether the individual is on a relevant barring list. Eligibility for DBS checks with Barring List will be assessed for each vacancy arising. DBS policy HR & Communications Status: Approved Page 9 of 17 9

10 Standard Assurance Evidence 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. Checks of insolvency and bankruptcy register and register of disqualified directors to be undertaken each year as part of the appraisal process. Annual declaration NED appraisal process (including Insolvency and Disqualified Director Checks) ED appraisal process 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. 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. The disciplinary policy provides these arrangements supported by amended contracts This will be undertaken if concerns are identified and revised contracts provide for termination if individuals fail to meet necessary standards. Disciplinary Policy ED contracts of employment NED Terms and Conditions of Service Revised employment contracts for ED and Terms and Conditions for NEDs 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. This would be reviewed when concerns are identified. Disciplinary policy. HR & Communications Status: Approved Page 10 of 17 10

11 Standard Assurance Evidence 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. Component This would be completed if any concerns were identified. Referrals made to other agencies. In the table above, unless the contrary is stated or the context otherwise requires, ED means executive directors and director-equivalent and NED means Non- Executive Director. HR & Communications Status: Approved Page 11 of 17 11

12 Fit and Proper Person Requirements APPENDIX 2 Directors and Non-Executive Directors Self Declaration Form to completed as part of the appointment process. On 20 th November 2014 the Care Quality Commission (CQC) published guidance on the fit and proper person requirements and duty of candour which is now into force for all NHS providers as of 27 th November These regulations play a major part in ensuring the accountability of directors of NHS bodies and outline the requirements for robust recruitment and employment processes for board level appointments. As part of the assurance against the new Fit and Proper Person requirements for existing board members, you are required to answer the following questions, sign, date and return. Have you got the qualifications, competency, skills and experience which are necessary for the position for which you are applying? YES NO Are you able by reason of health (after reasonable adjustments are made) of properly performing tasks which are intrinsic to the office or position for which you are applying? YES NO Have you been responsible for, been privy to, contributed to or facilitated any serious misconduct or mismanagement (whether lawful 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? Have you been the subject of any of the following: Undischarged bankruptcy or a being a person whose estate has had sequestration awarded in respect of it and who has not been discharged. Subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order to like effect made in Scotland or Northern Ireland. A moratorium period under a debt relief order applied under Part VIIA (debt relief orders) of the Insolvency Act 1986.a composition or arrangement with, or granted a trust deed for, creditors and not been discharged in respect of it. 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. 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. Have you 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? YES NO YES YES NO NO HR & Communications Status: Approved Page 12 of 17 12

13 Have you been erased, removed or struck-off a register of professionals maintained by a regulator of health care or social work professionals? YES NO Have you ever been found not to be a fit and proper person for the purposes of Regulation 5, of the draft Social Care Act 2008 (Regulated Activities), namely the requirements to: YES NO Be of good character Have the qualifications, skills and experience necessary for the relevant position Be capable of undertaking the relevant position, after any reasonable adjustments under the Equality Act 2010 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 e.g. Under the Companies Act or the Charities Act. I hereby agree that the above is accurate. Name Position Signed Date Please return to Jan Bloomfield, Executive Director of NHS Workforce and Communications HR & Communications Status: Approved Page 13 of 17 13

14 West Suffolk NHS Foundation Trust Fit and Proper Person Self-Declaration Form To be Completed as Part of the Annual Appraisal Process APPENDIX 3 I am aware of the requirement of Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) for directors to be fit and proper persons. 1. I,.. of. (insert address) declare that I need to meet and continue to meet the fit and proper person test as set out in Regulation 5(3) of the Health and Social Care Act 2008 (Regulated Activities) Regulations So that my employer can take appropriate steps on an annual basis to ensure that I meet this test, I declare that: a. I am of good character and in particular: i. I have / have not 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; If you have been convicted of an offence, please set out below the nature and date of the conviction, the offence, the sentence and whether the conviction is spent or not: ii. I have / have not been erased, removed or struck-off a register of professionals maintained by a regulator of health care or social work professionals; If previously erased, removed or struck-off a register or professionals maintained by a regular of health care or social work professionals, please provide details below including the nature of the complaint, the date when the action was taken by the regulator, the name of your employer and position at the time when action was taken and when you were re-instated: HR & Communications Status: Approved Page 14 of 17 14

15 iii. I am not aware of any information, and have not been involved in situations which call into question my honesty, trustworthiness, reliability or respectfulness or my adherence to the 7 principles of public life (the Nolan Principles) of selflessness, integrity, objectivity, accountability, openness, honesty and leadership. If there is anything you wish to declare in relation to the above, please set this out below: b. I have the qualifications, competence, skills and experience required by the person specification dated [insert date] including any requirements to be registered with a professional regulator. c. I am physically and mentally fit and able, subject to any reasonable adjustments agreed to be made pursuant to point 2 below, to undertake and perform the tasks which are set out in the job description dated [insert date] and which are intrinsic to my office and position, to which I was appointed on [insert date]. All information which I have provided in support of my application for and appointment to the above post is true and accurate. I have not given any false and/or misleading information in regards to the above. d. I have / have not been responsible for, been privy to, contributed to or facilitated any serious misconduct or mismanagement (whether unlawful or not) in the course of my work in health and social care services in England regulated by the CQC or services elsewhere of a type that if provided in England would be regulated by the CQC since [insert date when first started working in the healthcare sector]. HR & Communications Status: Approved Page 15 of 17 15

16 Please provide details below of any situation where you have been implicated in a breach of (i) a health and safety requirement; (ii) another statutory duty; or (iii) any other serious misconduct or mismanagement. What was your involvement and how was the decision reached? e. I satisfy the test that I am a fit person under Schedule 4, Part 1 of the Regulations in that: i. I am not an undischarged bankrupt; ii. My estate has not had sequestration awarded in respect of it and if it has, such sequestration has been discharged; iii. I am not subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order or an order to like effect made in Scotland or Northern Ireland; iv. I am not a person to whom a moratorium period under a debt relief order applies under Part VIIA (debt relief orders) of the Insolvency Act 1986; v. I have not made a composition or arrangement with, or granted a trust deed for, creditors and not been discharged in respect of it; vi. I am not 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 vii. I am not prohibited from holding my office or position, or from carrying on any regulated activity specified in the job description dated [insert date], by or under any enactment. HR & Communications Status: Approved Page 16 of 17 16

17 2. I do / do not (circle one) have a disability. If I do have a disability, I consider that the following reasonable adjustments are required in order to assist me to undertake and perform the tasks of my position: 3. I understand that providing any false and/or misleading information on this self-declaration form and/or if it comes to light that I have previously provided false and/or misleading information in support of my application for and appointment to my current post that this may lead to disciplinary action being taken against me, up to and including dismissal. 4. I have / have not worked in previous employment concerned with services relating to children and/or vulnerable adults. If I have worked in previous employment concerned with services relating to children and/or vulnerable adults, I set out below the nature of the post held, the dates of employment and the reasons why that employment ended. In circumstances where I resigned from the relevant post, the reasons for the resignation are also included. Signed: Date:. HR & Communications Status: Approved Page 17 of 17 17