Consolidation of regulatory functions

Accepted in principle.
However, we believe that the best way to achieve the desired outcome is through closer co- operation between Monitor and the Care Quality Commission rather than through the transfer of functions. The Care Quality Commission’s inspection regime will include a focus on whether or not an organisation is ‘well-led’.
We agree that the public have the right to expect that people in leading positions in NHS organisations are fit and proper persons; and that where it is demonstrated that a person is not fit and proper, they should not be able to occupy such a position. Monitor and the Care Quality Commission are committed to ensuring that, taken together, their processes for registration and licensing reflect these principles. The Care Quality Commission’s inspection regime will include a focus on whether or not an organisation is ‘well-led’.
In order to support this, the Government issued in July 2013 a consultation on Strengthening corporate accountability in health and social care. This proposes a new requirement that all Board Directors (or equivalents) of providers registered with the Care Quality Commission must meet a new fitness test. We are proposing that this test includes checks about whether the person is of good character including past employment history, and if the individual has the qualifications, skills and experience necessary for the work or office as well as the more traditional consideration of criminal and financial matters.
The Government proposes that the fit and proper persons test will now be used as a mechanism for introducing a scheme for barring Directors who are unfit from individual posts by Care Quality Commission at the point of registration. Where a Director is considered by Care Quality Commission to be unfit it could either refuse registration, in the case of a new provider, or require the removal of the Director on inspection, or following notification of a new appointment. Further details will be set out in the response to the consultation on corporate accountability which will be published shortly. We plan to publish the draft regulations for consultation at the same time.
See also recommendations 79 and 80.

Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (2014 regulations) place a duty on trusts to ensure that their directors meet the fit and proper persons requirements set out in the 2014 regulation 5, as defined above, are compliant with the FPP. The regulations stipulate that trusts must not appoint or have in place an executive or a non-executive director unless they meet the fit and proper persons requirements in the 2014 regulations. While it is the trust’s duty to ensure that they do not appoint or have in place directors unless they meet the fit and proper persons requirements, CQC has the power to take enforcement action against the trust if it considers that the trust has not complied with regulation 5. This may come about if concerns are raised to CQC about an individual or during the annual well-led review of the appropriate procedures.

The above was implemented by the previous government. Though CQC was not given the power to disbar directors or to regulate individual directors, in light of this government’s commitment to bring managers into regulation the nature and scope of further implementation may need to be considered.

The NHS Trust Development Authority, Monitor and the Care Quality Commission published How Monitor, the Care Quality Commission and the NHS Trust Development Authority will work together to assess how well led organisations are in May 2014.

The Department of Health has consulted on a new registration requirement that all directors of providers registered with the Care Quality Commission must meet a fit and proper person test. The Care Quality Commission will be able to insist on the removal of directors that fail this test. The consultation included how the revised fit and proper person requirement will work, and questions about the impact of the new regulations. The consultation ran from 27 March to 25 April 2014. The Fit and Proper Persons Test Regulations have been passed by Parliament and are in place in November 2014 for NHS organisations and from April 2015 for other organisations.

This recommendation was accepted by the Government in principle.

In the January 2014 Hard Truths report, the Government said that the desired outcome was best achieved through closer cooperation between Monitor and the Care Quality Commission rather than through transfer of functions. However, the Government stated the Care Quality’s inspection regime to include a focus on whether or not an organisation was well-led.

In the February 2015 Culture Change report, the Government referred to the introduction of fit and proper persons test which gave the Care Quality the power to take action against directors (reg.5 of the Social Care Act 2008 (Regulated Activities) Regulations 2014). It does not apply to governors of a foundation trust.

The Care Quality Commission was not given the power to bar directors nor to directly regulate individual directors. The task of acting upon the Fit and Proper Person test was left to the individual trusts.