The Department of Health’s consultation, which closed on 6 September 2013, includes a number of proposals including a new “fit and proper person test” for directors of health and social care organisations and the introduction of “fundamental standards” for healthcare providers.

Background

A lack of accountability at senior levels was perceived following the criminal prosecution of individual members of staff at the Winterbourne View hospital, where 11 people were found guilty of criminal offences of neglect or abuse as a result of an undercover investigation.

This lack of accountability was also highlighted in the Francis report following the Mid Staffordshire NHS Foundation Trust public enquiry. This prompted the Department of Health (DH) to review standards for registration with the CQC.

The changes being introduced are intended to ensure that boards and directors of healthcare providers (including NHS hospitals, private hospitals and care homes) take responsibility for the care and wellbeing of their patients.

Overview

The fit and proper person test will apply to all directors of boards including executive directors, non-executive directors and trustees. The requirement is to ensure that these individuals are fit to hold office and therefore need to be vetted by the organisation as to their suitability. This includes what they did in other jobs as a director, their finances, honesty and integrity. If the CQC decide that a director is not a fit and proper person, they can ask that organisation to remove the director.

The DH will also introduce a test of fundamental standards. This is a basic level of good service which must be met by healthcare providers.

It is intended to introduce the fit and proper person test fit by April 2014. The timetable for the introduction of fundamental standards is not clear.

Impact

It is intended that the changes will ensure that:

  • The process of registering with the CQC is effective and efficient.
  • There is a more robust test for providers of care.
  • Those that register as healthcare providers, directors and board members make a commitment to deliver safe, effective and high quality care.
  • Named directors and board members are held to account for that commitment. This is in addition to making sure providers and registered managers are accountable.

It is not yet known what will be the likely costs of the introduction of the proposals. It is expected that the vast majority of providers already have processes in place to ensure their directors are fit and proper persons. Registered providers are already required to notify the CQC of change of directors so this should not impose any additional burden.

However, governance structures will need to be reviewed to ensure the standard of directors appointed and that healthcare providers do not breach any fundamental standards. Such changes are subject to the definition of a fit and proper person and how fundamental standards are to be established.

Once these measures are introduced, it is hoped that healthcare providers will be able to further improve public confidence.

Proposed sanctions

The proposed sanctions will make it easier for directors, managers and corporate bodies to understand their duty to provide safe care and their potential liability when they fail to do so.

Where an organisation has refused to remove an unfit director, a prosecution can be pursued by the CGC with a fine as the sanction. Conditions of CQC registration can also be imposed.

The application of the fit and proper person test by the CQC would be subject to the right of appeal against any condition imposed. This appeal would be through the Health and Social Chamber of the First-Tier Tribunal.

In order to maintain fundamental standards, it is proposed that there will be a change of enforcement and prosecution.

The CQC is already able to prosecute providers, directors and other unincorporated associations under the Health and Social Care Act 2012. Such a prosecution can only be advanced where there has first been a failure to respond to a warning notice, which is issued in advance of any prosecution. A warning notice sets out how the provider has breached registration requirements and gives a timetable for compliance. This provides an opportunity to avoid prosecution.

This is ordinarily done through compliance measures being implemented.

This process will change through the introduction of fundamental standards. The CQC will be given the ability to prosecute providers where there are clear failures to meet basic standards of care, without the need for a warning notice.

This leaves the prospect of criminal charges for a board director, including manslaughter as a result of gross negligence and offences under the Health and Safety at Work Act etc. 1974. In addition, the Health and Safety Executive can pursue investigations and prosecutions.