Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the Regulations”) which creates a fit and proper person requirement for directors of NHS bodies (“FPPR”) came into force on 27 November 2014.

CQC guidance on Regulation 5, to which NHS bodies are required by the Regulations to have regard in meeting the FPPR, was issued on the same date.

NHS bodies for the purpose of Regulation 5 are NHS trusts, NHS foundation trusts and some special health authorities that provide care and treatment and are regulated by the CQC.

Subject to Parliamentary approval, the FPPR will extend to all providers of care and treatment from 1 April 2015.

Regulation 5 applies to executive and non-executive directors and any other person performing the functions of or equivalent or similar functions to a director.

Regulation 5(3) provides that providers must not appoint or have in place a director unless they:

  • are of good character;
  • have the qualifications, competence, skills or experience necessary for the office; and
  • are capable by reason of their health (once reasonable adjustments have been made) of performing the tasks intrinsic to their office.

Additionally, Regulation 5(3) provides that directors:

  • must not have been responsible for, be 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 the service elsewhere, which if provided in England would be a regulated activity; and
  • none of the grounds of unfitness referred to in Schedule 4 Part 1 (which includes being bankrupt, being on the children’s or adults’ barred list, or being prohibited by enactment from being a director of carrying out a regulated activity) must apply.

It is the serious misconduct or mismanagement test that has attracted the most attention as the terms used mean that the test is wide ranging and uncertain in scope. The CQC guidance adds rather than detracts to this uncertainty by stating that, “serious misconduct or mismanagement means behaviour that would constitute a breach of any legislation or enactment which the [CQC] deems relevant to meeting these regulations.” There is also no indication of how far back providers need to look when considering serious misconduct.

The CQC will examine whether NHS bodies are meeting the FPPR using information which it receives and through its inspections.

The CQC guidance requires the chair of the NHS provider to 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”.

The CQC will focus in its inspections, on whether providers have the appropriate systems and processes in place to enable it to assess whether the FPPR is met. Although the CQC may impose a condition on a provider’s registration, the primary responsibility to ensure that the FPPR is met is on the provider. Regulation 5(6) requiring NHS bodies to “take such necessary and appropriate action” to ensure that the office or post is held by an individual who meets the FPPR.

NHS trusts and foundation trusts need to look carefully at their recruitment and appraisal processes for directors as well as whether they have the means of taking appropriate action should any of their directors not meet the FPPR.