Policies, Procedures, Guidelines and Protocols

Transcription

1 Policies, Procedures, Guidelines and Protocols Document Details Title Guidance for the appointment of fit and proper persons as directors (including Standard Operating Procedure) Trust Ref No 1997/29403 Local Ref (optional) N/A Main points the document This guidance outlines the process for the appointment of Directors covers and Non-Executive Directors to the Trust and the relevant checks required at appointment and ongoing throughout employment with the Trust, to ensure compliance with the requirement to have fit and Who is the document aimed at? proper persons as directors. Trust Chairman, Trust Board directors, Board Secretary, HR and recruitment team responsible for carrying out director appointment processes and ongoing checks Author Contributors Who has been consulted in the development of this policy? Approved by (Committee/Director) Gina Billington, HR Manager Lynne Taylor, Deputy Director of HR & Workforce Julie Thornby, Director of Corporate Affairs (Board Secretary) Approval process Trust Chairman, appointments team at Trust Development Authority in relation to Standard Operating Procedure provisions for specific checks Trust Chairman Approval Date October 2015 Initial Equality Impact Yes Screening Full Equality Impact No Assessment Lead Director Director of Corporate Affairs Category HR & Workforce Sub Category Workforce/Human Resources Review date October 2018 Distribution Who the policy will be distributed to Board members including Board secretary, HR and recruitment team. Method Publication on the Trust Intranet Document Links Required by CQC Yes Other None Amendments History No Date Amendment 1 2 3

2 Contents 1. Introduction The regulation: fit and proper person requirement (FPPR) for directors Roles and responsibilities Standards Assurance... 5 Appendix A:Table of Assurance... 6 Appendix B:Standing Operating Procedure for Fit and Proper Persons Test Appendix C:Annual Declaration form Appendix D:Reference request Appendix E:Non-Executive Director appraisal documentation Appendix F:Fit and Proper Persons Checklist

3 1. Introduction 1.1 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. 1.2 Within the new regulations, the duty of candour and the fit and proper person requirements (FPPR) for directors came into force earlier for NHS bodies than for other providers on 27th November This guidance outlines how the Trust will meet the requirements of the fit and proper persons standard. 2. The regulation: fit and proper person requirement (FPPR) for directors 2.1 Previously providers had a general obligation to ensure that they only employed individuals who were fit for their role. Specifically for the purposes of CQC registration they were required to assess the fitness of a nominated individual (organisationally determined, but usually directors) to ensure that they were of good character, 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). 2.2 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. 2.3 It will apply to all directors and equivalents. This will include both executive and nonexecutive directors, including interims or associates, regardless of their voting rights, 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. 2.4 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." 2.5 This is a significant restriction which will enable the Trust and Care Quality Commission ( CQC ) to decide that a person is not fit to be a director on the basis of any previous 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. 3

4 3. Roles and responsibilities 3.1 The CQC guidance requires the Chair of the NHS Body to discharge the FPPR placed upon the provider and declare that appropriate checks have been undertaken in reaching a judgement that all directors are deemed to be fit and none meet any of the unfit criteria. 3.2 CQC will check and monitor the extent to which the provider meets the regulation at the point of registration, during their inspection, on receipt of concerning information and where there is a serious systemic failure of a provider. During inspection this will include confirming that appropriate checks have been made and that on appointment and subsequently all new and existing directors are of good character and not unfit. 3.3 Where there is systemic failure, CQC will carry out a focussed inspection including of the Fit and Proper Person test. The CQC will 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. CQC has specific processes for dealing with concerns raised about an existing Board member. 3.4 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. 3.5 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 4.1 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, whatever it might be called) in an NHS trust or NHS foundation trust are: of good character (Schedule 4, Part 2 of the regulations); including whether convicted of an offence or removed from a health care or social work professional register have the appropriate qualifications, competence, skills and experience necessary (which may include leadership skills and a caring and compassionate nature); able to carry out the role by virtue of an appropriate level of physical and mental health, (taking account of any reasonable adjustments); and not unfit on specific grounds including bankruptcy, being on a barred list or prohibited from holding the office. 4.2 In addition, people appointed to these roles must not have - been responsible for, or known, contributed to or facilitated any serious misconduct or mismanagement in carrying on a regulated activity. 4.3 The CQC 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. 4

5 5. Assurance 5.1 The table at appendix A identifies the specific requirements of the fit and proper persons test and sets alongside those requirements how the Trust assures itself about the suitability of individuals. 5.2 Other documents that provide assurance for the requirements of the fit and proper persons test are reflected in relevant HR processes, and are: VSM contract Chief Executive contract revised director-equivalent contract revised non-executive director contract reference request for directors and director-equivalentspre-employment and annual declaration for director and director-equivalent posts checklist for recruitment to director and director-equivalent posts 5

6 Appendix A: Table of Assurance 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 Employers pre-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 insolvency and bankruptcy register any other additional restrictions Search of disqualified directors register (*) References Other pre-employment checks DBS checks where appropriate Signed declarations from applicants 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. Contracts of employment (for EDs) Disciplinary policy and procedure and related correspondence 6

7 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 Nominations and Remuneration Committee (NAR) (for EDs and director-equivalents). The Chair would take advice from internal and external advisors as appropriate. Minutes of meetings. Related correspondence 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. 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 Interview paperwork 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 NAR Committee and would be minuted. Actions would be subject to follow-up as part of ongoing review and appraisal. Minutes of meetings ED appraisal documentation and action plans 7

8 Standard Assurance Evidence 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 included in the Trust s Recruitment Policy and Managing Attendance at Work Policy. Safer Recruitment policy Managing Attendance at Work Policy 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. Pre-employment declaration Reference Request for ED 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. References for ED 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. Recruitment 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 will be assessed for each vacancy arising. Recruitment policy 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. 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. 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 by the Trust s recruitment lead. Physical and mental health will be discussed as part of the appraisal process for non executives, and will be monitored by the CEO for executives as part of the nroaml management relationship. The disciplinary policy provides these arrangements, and revised contracts (for EDs and director-equivalents) and agreements (for NEDs) incorporate maintenance of fitness as a contractual requirement.the Senior Independent Director (SID) provides a channel for communicating concerns about fitness. This will be undertaken if concerns are identified and revised contracts provide for termination if individuals fail to meet necessary standards. Annual declaration Annual checklist ED appraisal process Disciplinary policies ED contracts of employment Revised employment contracts for ED Disciplinary policies 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 Managing Attendance policy. 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. (*) indicates newly-introduced requirements to address the regulations In the table above, unless the contrary is stated or the context otherwise requires, ED means executive directors and director-equivalent 11

12 Appendix B: Standing Operating Procedure for Fit and Proper Persons Test Standing Operating Procedure for Fit and Proper Persons Test Purpose To set out the procedure for putting into practice the Trust s Guidance for the appointment of fit and proper persons as directors. To provide details on the procedure for appointing Directors and Executive Directors to post applying the Fit & Proper Persons Test (FPPT) in line with NHS Employment Check Standards, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Trust Safer Recruitment Policy and ensuring they continue to meet the test during their appointment as directors of the Trust. Scope This procedure applies to the appointment of Directors and non-executive Directors, interims or associates to those posts, whether voting or non-voting. The Trust undertake the checks to determine fitness for Directors and non-executive Directors. The Trust Development Authority carries out specific tests for non executive directors; in these cases, the Trust seeks written confirmation from the TDA of satisfactory outcomes from those checks. This SOP clarifies those checks and who is responsible for ensuring they are carried out. Definitions To meet the requirements of this regulation, the Trust and the TDA must carry out all necessary checks to confirm that persons who are appointed to the role of director (or similar senior level role, whatever it might be called) in an NHS trust or NHS foundation trust are: of good character (Schedule 4, Part 2 of the regulations); including whether convicted of an offence or removed from a health care or social work professional register have the appropriate qualifications, competence, skills and experience necessary (which may include leadership skills and a caring and compassionate nature); able to carry out the role by virtue of an appropriate level of physical and mental health, taking account of any reasonable adjustments); and not unfit on specific grounds including bankruptcy, being on a barred list or prohibited from holding the office. In addition, people appointed to these roles must not have not been responsible for, or known of, contributed to or facilitated any serious misconduct or mismanagement in carrying on a regulated activity. 12

13 Responsibilities It is the responsibility of the Chair to ensure that all directors meet the fitness test. The TDA carries out specific checks on Non-executive Directors on appointment and advises the Trust that checks are clear before it makes appointments or reappointments. It is the responsibility of the Director of Corporate Affairs (Board Secretary) to obtain assurances from the TDA that those checks have been carried out and that TDA assurances are placed on personal files held in the Trust. It is the responsibility of Directors to ensure that they undertake the necessary checks and make an annual declaration of fitness. It is the responsibility of the recruitment team to ensure that an initial recruitment checklist and a FPPT checklist is in place on personal files and that on-going checks are undertaken, recorded and placed on the relevant personal file. Procedure Executive Directors Following the issue of a conditional offer to a prospective Executive Director, checks will be carried out in line with both the safer recruitment policy (the NHS Employment Checks Standard) and this Standard Operating Procedure and supporting guidance (Fit and Proper Persons as Directors Test) Pre-appointment checks: Check/NHS Standard Verification of identity Right to work check Professional registration and qualification check Employment history and reference checks DBS Occupational health checks Alert notices Insolvency and Bankruptcy Additional Insolvency and Bankruptcy Disqualified Directors search Background check (including Google search) Declaration of Fit and Proper Person form Undertaken by: Trust recruitment lead The recruitment team will issue a contract of employment on satisfactory completion of the above checks. All relevant records with regard to the above checks will be placed on the Director s personal file by the PA to the Chief Executive. There are also annual checks required to ensure that Directors continue to meet the requirement of the FPPT and these are outlined below: 13

14 Annual checks: Check Insolvency and Bankruptcy Additional Insolvency and Bankruptcy Disqualified Directors search Self declaration of Fit and Proper Person form Undertaken by: Trust recruitment lead Director of Corporate Affairs Annual self declaration forms of compliance with FPPT will be issued by the Director of Corporate Affairs and a copy placed on the personal file with the other annual checks. The Chief Executive will monitor individual s physical and mental health as part of the normal management relationship and refer to OH where appropriate. The Chair monitors the health of the Chief Executive. Non-Executive Directors (including the Chair) The TDA carries out specific checks relevant to FPPT prior to appointing or reappointing Non- Executive Directors, and the Trust carries out the remaining checks. This is set out in the table below. Pre-appointment checks: Check/NHS Standard Verification of identity Right to work check Professional registration and qualification check where required for role Reference checks DBS Occupational health checks Alert notices Insolvency and Bankruptcy Additional Insolvency and Bankruptcy Disqualified Directors search Background check (including Google search) Self declaration of Fit and Proper Person form (note:carried out by TDA for all non executives, new and in post, during 2015) Undertaken by: Trust recruitment lead Trust recruitment lead TDA TDA Trust recruitment lead Trust recruitment lead Trust recruitment lead TDA TDA TDA TDA TDA Annual checks: Check Insolvency and Bankruptcy Additional Insolvency and Bankruptcy Disqualified Directors search Background check (including Google search) Self declaration of Fit and Proper Person form (note:carried out by TDA for all non executives, new and in post, during 2015) Physical and mental health Undertaken by: Trust recruitment lead Director of Corporate Affairs Trust Chairman 14

15 The Chairman will be mindful of the physical and mental health of non executive directors and will discuss this with individuals during the appraisal process to ensure their ongoing fitness, placing a copy of appraisal documentation on their personal file. Monitoring Monitoring of the process will be undertaken by the Human Resources and recruitment team with the use of random audit checks of personal files and the completion of recruitment paperwork. References Regulation 5: Fit and proper persons: directors (Information for NHS bodies) March 2015 Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 Safer Recruitment Policy 15

16 Appendix C: Annual Declaration form SHROPSHIRE COMMUNITY HEALTH NHS TRUST ( the Trust ) FIT AND PROPER PERSON DECLARATION 1. Fitness to carry out the role of director in NHS Trusts is determined by the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 ( the Regulated Activities Regulations ) 2. By signing the declaration below, you are confirming that you do not fall within the definition of an unfit person or any other criteria set out below, and that you are not aware of any pending proceedings or matters which may call such a declaration into question. 3. It is a condition of employment that those holding Director and Director-equivalent posts provide confirmation in writing, on appointment and thereafter on demand, of their fitness to hold such posts. Your post has been designated as being such a post. 4. Chairs and Non-Executive Directors hold office under terms and conditions provided by the Trust Development Authority (TDA), and are required to meet the fit and proper persons test for Directors. 5. The Trust shall not appoint or permit to continue as a Director any person who is an unfit person, unless in exceptional circumstances with the agreement of the TDA. 6. The Trust will ensure that its contracts of employment with its Directors contain a provision permitting summary termination in the event of a Director being or becoming an unfit person. The Trust will enforce that provision promptly upon discovering any Director to be an unfit person, other than in exceptional circumstances with the approval in writing of the Trust Development Authority. Regulated Activities Regulations 7. Regulation 5 of the Regulated Activities Regulations states that the Trust must not appoint or have in place an individual as a Director, or performing the functions of or equivalent or similar to the functions of, such a Director, if they do not satisfy all the requirements set out in paragraph 3 of that Regulation to be a fit person and that they must not meet any of the unfit criteria. The CQC document Regulation 5: Fit and Proper Persons: Directors - Guidance for NHS Bodies, November 2014 as amended from time to time provides further guidance on the requirement. 8. The definitions of being fit under the requirements of paragraph 3 of Regulation 5 of the Regulated Activities Regulations are that: (a) (b) (c) the individual is of good character; the individual has the qualifications, competence, skills and experience which are necessary for the relevant office or position or the work for which they are employed; the individual is able by reason of their health, after reasonable adjustments are made, of properly performing tasks which are intrinsic to the office or position for which they are appointed or to the work for which they are employed; 16

17 (d) (e) the individual has not been responsible for, 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 providing a service elsewhere which, if provided in England, would be a regulated activity; and none of the grounds of unfitness specified in Part 1 of Schedule 4 apply to the individual. 9. The grounds of unfitness specified in Part 1 of Schedule 4 to the Regulated Activities Regulations are: (a) (b) (c) (d) (e) (f) the person is an undischarged bankrupt or a person whose estate has had sequestration awarded in respect of it and who has not been discharged; the person is the subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order or an order to like effect made in Scotland or Northern Ireland; the person is a person to whom a moratorium period under a debt relief order applies under Part VIIA (debt relief orders) of the Insolvency Act 1986; the person has made a composition or arrangement with, or granted a trust deed for, creditors and not been discharged in respect of it; the person is 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; the person is prohibited from holding the relevant office or position, or in the case of an individual for carrying on the regulated activity, by or under any enactment. 10. In assessing good character, the matters to be considered must include those listed in Part 2 of Schedule 4 which are: (a) 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. (b) 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. I acknowledge the extracts from the Regulated Activities Regulations above. I confirm that I do not fit within the definition of an unfit person as listed above and that there are no other grounds under which I would be ineligible to continue in post. I undertake to notify the Trust immediately if I no longer satisfy the criteria to be a fit and proper person or other grounds under which I would be ineligible to continue in post come to my attention. Name: Signed: Position: Date: 17

18 Appendix D: Reference request REFERENCE REQUEST FOR VERY SENIOR MANAGER (VSM) POSTS PRIVATE & CONFIDENTIAL Section 1: Applicant Details Full Name: Job Reference: Post Applied For: Recruitment Officer: What is your relationship to the applicant (e.g. line manager/friend/work colleague/tutor)? How Long Have you known him/her? From: / / To: / / Section 2: If you employed the applicant please confirm the following details: Dates of employment From: To: Position held: Please give a brief description of the applicant s duties whilst in your employment: 18

19 Please describe their performance in the role, including any strengths and weaknesses: Has the applicant been subject to any concerns regarding safeguarding issues or disciplinary or fitness to practice investigations? If yes, please state the nature of the concern/issue YES NO Please comment on the reason for the applicant leaving your employment: Would you re-employ the applicant? YES NO 19

20 Section 3: Considering the job description provided, please give your opinion of the applicant s suitability for the post: 20

21 Section 4: for Director level posts only The Health and Social Care Act 2008 (Regulated Activities) Regulations 2008 state that the Trust must not appoint or have in place an individual as a director, or who performs the functions of or equivalent or similar functions of a director if they do not fulfil the following requirements: (a) (b) (c) (d) (e) the individual is of good character; the individual has the qualifications, competence, skills and experience which are necessary for the relevant office or position or the work for which they are employed; the individual is able by reason of their health, after reasonable adjustments are made, of properly performing tasks which are intrinsic to the office or position for which they are appointed or to the work for which they are employed; the individual has not been responsible for, 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 providing a service elsewhere which, if provided in England, would be a regulated activity; and none of the grounds of unfitness specified in Part 1 of Schedule 4 apply to the individual. The grounds of unfitness specified in Part 1 of Schedule 4 to the Regulated Activities Regulations are: (a) (b) (c) (d) (e) (f) the person is an undischarged bankrupt or a person whose estate has had sequestration awarded in respect of it and who has not been discharged; the person is the subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order or an order to like effect made in Scotland or Northern Ireland; the person is a person to whom a moratorium period under a debt relief order applies under Part VIIA (debt relief orders) of the Insolvency Act 1986; the person has made a composition or arrangement with, or granted a trust deed for, creditors and not been discharged in respect of it; the person is 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; the person is prohibited from holding the relevant office or position, or in the case of an individual for carrying on the regulated activity, by or under any enactment. Considering these requirements, and based on your knowledge of the individual, would you have any concerns as to their suitability for appointment? Yes No: If you have answered yes to section 4, please expand below: 21

22 Name: Job Title: Signature: Date: Company Stamp where applicable (If available): Thank you for taking the time to complete this reference. Important: Should the applicant request sight of this reference under the Data Protection Act 1998 or Freedom Of Information Act 2000, then it may be shared with them. 22

23 Appendix E: Non-Executive Director appraisal documentation Name Organisation Appraisal period NED Appraisal summary Overall assessment of performance The performance of the individual in their role has been assessed through a formal appraisal process as (indicate with an x ) Strong performance Satisfactory performance Needing development Poor performance 2. Overall assessment of performance of trust (against objectives where agreed) 3. Overall assessment of performance of NED (against objectives where agreed) 23

24 4. Any further comments, including any actions agreed to improve performance and confirmation of meeting the fit and proper persons criteria (set out in the appendix to this appraisal) 5. Key objectives for the trust s performance in the next appraisal period The Trust s agreed objectives for the coming year are as follows: 6. Key objectives for NED s performance in the next appraisal period Signed Name Position Date Appraiser Signed Name Position Date Appraisee 24

25 Appendix 1 Fit and proper persons test Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 states that trusts must not appoint or have in place an individual a) as a director; or b) performing the functions of, or functions equivalent, or similar to such a director if they do not satisfy all the requirements set out in paragraph 5(3)3. These requirements are that the individual: 1. is of good character 2. has the qualifications, competence, skills and experience necessary for the position for which they are employed 3. is able by reason of their health (physical and mental) to carry out the role after any reasonable adjustments 4. has not been responsible for any misconduct or mismanagement in the course of any employment with a CQC registered provider 5. is not prohibited from holding the relevant position under any other law These requirements apply on appointment and during their continued office as a non-executive director. Continued assessment of a director s suitability should be undertaken as part of the appraisal process, or where concerns are raised, dealt with through the appropriate TDA policy. A copy of the Regulations can be found on the website. 25

26 Appendix F: Fit and Proper Persons Checklist 26

27 1.Contract/appo intment 2.References 3. Right to Work 4. Professional Registration 5. Qualifications 6. DBS 7. Occupational Health preemployment 8. Health annual check EXECUTIVE DIRECTOR & NON-EXECUTIVE DIRECTOR FIT AND PROPER PERSONS AS DIRECTORS: CHECKLIST VSM Name TDA TDA Trust TDA TDA Trust Trust Trust NON-EXECUTIVE (check evidence of TDA completing checks where shown) Name (Appointment letter ) 27

28 9.Alert Notices 10.Identity check and ID Badge 11.Insolvency & Bankruptcy search pre employment 12.Insolvency and bankruptcy search annual 13.Additional insolvency checks preemployment 14.Additional insolvency checks annual 15.Disqualified Director search preemployment 16.Disqualified Director search annual 17.Declaration of FPPT pre employment 18.Declaration of FPPT annual 19.Background search preemployment 20. Background search annual VSM Trust Trust TDA Trust TDA Trust TDA Trust TDA Trust TDA NON-EXECUTIVE (check evidence of TDA completing checks where shown) NOTES (Refer to numbered items in table): 4. Evidence of professional registration as required in the job description 5. Evidence of qualifications as required in job description 8. For non executives, initial occupational health clearance then completed appraisal documentation including reference to health status (For executive directors, health status is kept under continuing review, including via 1to 1 meetings, annual and half yearly performance reviews) 28