Fit and Proper Person s Policy CRM011 1
Table of contents Policy Title... Error! Bookmark not defined. Why we need this Policy... 2 What the Policy is trying to do... 2 Which stakeholders have been involved in the creation of this Policy... 2 Any required definitions/explanations... 3 Key duties... 3 Policy detail... 5 Training requirements associated with this Policy... 7 How this Policy will be monitored for compliance and effectiveness... 8 For further information... 8 Equality considerations... 8 Document control details... 9 Why we need this Policy The purpose of this policy is to set out the requirements of the fit and proper person test to ensure that all directors (executive, non executive, permanent, interim and associate) are aware of the requirements of the regulations and the responsibilities placed on them. This policy outlines how the Foundation Trust will meet the requirements of the fit and proper persons standard. What the Policy is trying to do The policy sets out the arrangements in NHFT for ensuring that all director appointments (executive, non executive, permanent, interim and associate) are compliant with the requirements of the fit and proper person test. Which stakeholders have been involved in the creation of this Policy Foundation Trust Chair and Executive Board 2
Any required definitions/explanations Creating a fit and proper persons test for health and social care leaders was one of the key recommendations of the Francis Report. The test has applied to all health service bodies i.e. NHS Trusts, NHS Foundation Trusts and Special Health Authorities from 27 November 2014 and will apply to all health and social care providers registered with CQC from 1 April 2015. The policy framework informing this procedure is the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 5: Fit and proper persons: directors. These regulations place a duty on NHS providers not to appoint or allow a person to continue to be an executive director or equivalent or a non-executive director under certain given circumstances. NHS organisations must ensure that any Board level appointments meet the fit and proper persons test and this will be subject to scrutiny and inspection by the CQC. Key duties The role of the Chair The Chair will: satisfy his or herself on an annual basis that the fitness of all directors has been assessed in line with the regulations and that he or she is satisfied that they are fit and proper persons for their respective roles; be able to provide appropriate assurance that the fitness of all new directors has been assessed in line with the regulations; report annually to the Council of Governors Nominations and Remuneration Committee and the Board of Directors Nominations and Remuneration Committee in respect of compliance of directors with fit and proper persons regulations; report as and when required on any issues which may compromise an individual director s compliance with fit and proper persons regulations and the actions being taken to address the issue; meet other fit and proper persons reporting requirements as and when deemed required. 3
Any matters of concern identified as part of the fit and proper persons checks are referred to the Chair for consideration and action, with legal advice sought as appropriate. The role of the Nominations and Remuneration Committees The Council of Governors Nominations and Remuneration Committee, together with the Board of Directors Nominations and Remuneration Committee, are responsible for gaining assurance that relevant checks have been carried out. The role of Directorate of Human Resources The Director of Human Resources and Organisational Development is the executive lead for ensuring that fit and proper persons documentation is complete and contained on all personal files. The Human Resources team will manage the process for the recruitment and appointment of executive directors and will lead the process for the initiation and completion of all pre-employment checks for both executive and non-executive directors. The Human Resources team will be responsible for securing two references for executive director appointments. The Corporate Affairs team (within the HR Directorate) will manage the recruitment process for nonexecutive director appointments, initiating and completing all other (i.e. not pre-employment checks) fit and proper persons checklist requirements for executive and non-executive directors. The Corporate Affairs team will be responsible for securing two references for non-executive director appointments. The role of the individual director Individual non-executive directors and executive directors are required to inform the Chair and Chief Executive respectively of any change in circumstances which may impact upon their fit and proper persons compliance. 4
Policy detail The Regulations Providers have a general obligation to ensure that they only employ individuals who are fit for their role and they are required to assess the fitness of nominated individuals (organisationally determined, but usually directors) to ensure that they are of good character, are physically and mentally fit, have the necessary qualifications, skills and experience for the role, and can supply certain information (including a Disclosure and Barring Service (DBS) check and a full employment history check). The regulations apply to all directors (executive, non executive, permanent, interim and associate) and it is the responsibility of the Chair to ensure that all directors meet the fit and proper persons test and do not meet any of the unfit criteria. CQC standards In accordance with CQC standards (Regulation 5: fit and proper persons: directors) requirements for fit and proper persons are as follows: 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, 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 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. 5
A person will be deemed unfit if they: have within the preceding five years have been convicted in the UK of any criminal offence (or elsewhere if the offence is seen as criminal in the UK); have been sentenced to imprisonment (suspended or not) for a period of not less than three months (without the option of a fine); are an undischarged bankrupt; are subject to bankruptcy restrictions; have made a composition or arrangement with creditors and has not been discharged in respect of it; are included in the children s or adult s barred list under Section 2 Safeguarding Vulnerable Groups Act 2006; are subject to an unexpired disqualification order made under the Company Directors Disqualification Act 1986; have been responsible for, or privy to, contributed or facilitated any serious misconduct or mismanagement (whether unlawful or not) in the course of carrying out a regulated activity, or discharging any functions relating to any office or employment with a service provider. Recruitment process new appointments Reference to the fit and proper persons test is made during the recruitment process and in appointment offer letters to both executive directors and non-executive directors. The following recruitment checks will be carried out for new appointments: references and full employment history; DBS checks (at enhanced level for all Board directors); copies of certificates of relevant qualifications and professional registrations for the post held; verification of identification (as determined in the organisation s acceptable documents for verification of ID checks checklist); right to work; occupational health clearance; insolvency and bankruptcy register check; and disqualified directors register check. 6
Existing executive director/non-executive director positions Existing directors will be required to sign a fit and proper person declaration form on an annual basis. This process will be initiated and managed by the Trust Board Secretary. The declaration includes the definition of an unfit person as defined by Provider License Condition G4(5), regulated activities regulations and an extract from the Foundation Trust s Constitution setting out the definitions of an unfit person. As part of the annual appraisal process the Chair and/or Chief Executive will review the annual declaration, establish whether anything has changed and record the outcome of the discussion with the appraisee over continued compliance with the fit and proper persons regulations. Staff who act up for an interim period as a director will be required subject to a fit and proper person test. On appointment to a permanent Board position, they will be required to undertake a further DBS check (at enhanced level). If the Chair or a non executive director is reappointed for a further term of office by the Council of Governors, a new enhanced DBS check will be carried out together with a search of the insolvency and bankruptcy register and search of Companies House Disqualified Directors Register. In addition to the annual fit and proper person declaration, annual checks are also carried as follows: search of the insolvency and bankruptcy register; search of Companies House Disqualified Directors Register; declaration of interests return. Training requirements associated with this Policy Advice on the application of the fit and proper person test can be sought from the Director of Corporate Governance or Trust Board Secretary. 7
How this Policy will be monitored for compliance and effectiveness Revalidation of appropriate checks will be undertaken on an annual basis and documented in the appraisal process. The Chair will be responsible for reporting annually to the Council of Governors Nominations and Remuneration Committee and the Board of Directors Nominations and Remuneration Committee on the status of the fit and proper persons regulations in the Foundation Trust. The Director of Corporate Governance and Trust Board Secretary (within the Corporate Affairs team) will annually audit compliance with this policy and bring to the attention of the Chair any relevant issues arising from this audit. For further information contact Trust Board Secretary on 01536 452036. Equality considerations The Trust has a duty under the Equality Act and the Public Sector Equality Duty to assess the impact of Policy changes for different groups within the community. In particular, the Trust is required to assess the impact (both positive and negative) for a number of protected characteristics including: Age; Disability; Gender reassignment; Marriage and civil partnership; Race; Religion or belief; Sexual orientation; Pregnancy and maternity; and Other excluded groups and/or those with multiple and social deprivation (for example carers, transient communities, ex-offenders, asylum seekers, sex-workers and homeless people). The author has considered the impact on these groups of the adoption of this Policy and concluded there are no specific actions required. 8
Reference Guide Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 5: Fit and proper persons: directors Document control details Author: Trust Board Secretary Approved by and date: Trust Policy Board 21 September 2017 Responsible committee: Executive Board 18 April 2017 Any other linked Policies: Recruitment policies Policy number: CRM011 Version control: 2 Version No. Date Ratified/ Amended Date of Implementation Next Review Date 1 05.12.2016 05.12.2016 05.12.2019 New policy Reason for Change (eg. full rewrite, amendment to reflect new legislation, updated flowchart, minor amendments, etc.) 2 21.09.2017 22.09.2017 05.12.2019 Changes in Legislation. 9