Fit and proper persons regulations in the NHS: What do providers need to know?

Appendix 1: Role of Care Quality Commission

The regulations give CQC powers to monitor and assess how well trusts discharge their responsibility to comply with fit and proper persons requirements for directors.

CQC has the right to require the provision of information set out in Schedule 3 of the FPPR and other such information as is kept by the organisation that is relevant to the individual as follows:

1. Proof of identity including a recent photograph.
2. Where required for the purposes of an exempted question in accordance with section 113A(2)(b) of the Police Act 1997, a copy of a criminal record certificate issued under section 113A of that Act together with, after the appointed day and where applicable, the information mentioned in section 30A(3) of the Safeguarding Vulnerable Groups Act 2006 (provision of barring information on request).
3. Where required for the purposes of an exempted question asked for a prescribed purpose under section 113B(2)(b) of the Police Act 1997, a copy of an enhanced criminal record certificate issued under section 113B of that Act together with, where applicable, suitability information relating to children or vulnerable adults.
4. Satisfactory evidence of conduct in previous employment concerned with the provision of services relating to –
a) health or social care, or
b) children or vulnerable adults
5. Where a person (P) has been previously employed in a position whose duties involved work with children or vulnerable adults, satisfactory verification, so far as reasonably practicable, of the reason why P’s employment in that position ended.
6. In so far as it is reasonably practicable to obtain, satisfactory documentary evidence of any qualification relevant to the duties for which the person is employed or appointed to perform.
7. A full employment history, together with a satisfactory written explanation of any gaps in employment.
8. Satisfactory information about any physical or mental health conditions which are relevant to the person’s capability, after reasonable adjustments are made, to properly perform tasks which are intrinsic to their employment or appointment for the purposes of the regulated activity.
9. For the purposes of this Schedule—
a) "the appointed day" means the day on which section 30A of the Safeguarding Vulnerable Groups Act 2006 comes into force;
b) "satisfactory" means satisfactory in the opinion of the Commission;
c) "suitability information relating to children or vulnerable adults" means the information specified in sections 113BA and 113BB respectively of the Police Act 1997.

Appendix 2: Role of NHS Improvement

NHS Improvement (NHSI) has a specific role in appointing chairs and non-executive directors (NEDs) of NHS trusts. This includes a duty to ensure that the aforementioned appointed individuals meet the requirements of the FPPR.

NHSI must provide robust evidence that the appropriate processes (detailed below) are in place to ensure that all newly appointed chairs and NEDs, or those that are currently in post, are and continue to be, fit to carry out their role. NHSI must also ensure that no appointments at this level meet any of the unfit criteria set out in the FPPR.

NHSI undertakes the following series of checks to ensure that candidates meet their internal fit and proper persons criteria:

CV check for gaps in history, potential issues and conflicts of interest
check of self-declaration form completed by the candidate, and renewed for reappointments via appraisal documentation
scrutiny of panel assessment documentation, where appropriate for new appointments
Google and news searches, including high profile roles, any regulated activity, or work with children or vulnerable adults
check with relevant regulators, where individuals have a history of regulated activity
scrutiny of references
search of disqualified directors register
search of insolvency and bankruptcy register
scrutiny of appraisal documentation where appropriate
check of corporate knowledge where the individual has a background in the NHS.

NHSI offers appointments on the condition of the satisfactory completion of:

disclosure and Barring Scheme (DBS) checks (where appropriate to the role)
occupational health assessment (for new appointments only)
random checks of educational qualifications
proof of identity, for example passport or driving licence (for new appointments only)
proof of qualifications
proof of right to work, where the individual does not provide an EU passport as proof of identity (for new appointments only).

As part of the annual appraisal process for existing NHS trust chairs and NEDs, confirmation is sought that there are no pending or other matters that may affect their suitability for appointment.

NHSI will take appropriate action if an appointed individual is discovered to be unfit, as provided for by the terms and conditions of appointment, suspension and termination of chairs and NEDs.

Appendix 3: Complying with the regulations at the recruitment stage

Below are standards that all trusts are expected to meet at the recruitment stage, the assurance process they may wish to follow, and the evidence they may wish to produce:

	Standard	Assurance process	Evidence
1	Trusts 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. The fit and proper persons 'test' must be applied before an individual is appointed to a position.	Recruitment checks in accordance with NHS Employment Check Standards issued by NHS Employers, including: Proof of identity and right to work in the UK Proof of qualifications Professional registration and qualification check Employment history and at least two detailed reference checks, one of which must be the most recent employer Occupational health assessment Disclosure and Barring Scheme (DBS) check (where appropriate to the role) Search of registers e.g. disqualified directors, bankruptcy and insolvency Google and news searches	References Outcome of other pre-employment checks DBS check certificate where appropriate Register and internet search results List of referees and sources of assurance for Freedom of Information Act (FOIA) purposes
2	Where a trust 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.	e inReport and debate at the nominations committee(s) Report and recommendation at the council of governors (for NEDs) or the board of directors (for executive directors) for foundation trusts, reports to the board for NHS trusts Decisions and reasons for decisions recorded in minutes External advice sought as necessary	Record that due process was followed for FOIA purposes
3	Where specific qualifications are deemed by the trust as necessary for a role, the trust 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.	Requirements included within the job description for all relevant posts Proof of qualifications checked as part of the pre-employment checks	Person specification Recruitment policy and procedure
4	The trust should have appropriate processes for assessing and checking that the individual holds the required qualifications and has the competence, skills and experience required, to undertake the role; these should be followed in all cases and relevant records kept. N.B. While this provision most obviously applies to executive director appointments in terms of qualifications, skills and experience will be relevant to NED appointments.	Recruitment checks including a candidate’s qualifications and employment references Recruitment processes including qualitative assessment and values-based questions Decisions and reasons for decisions recorded in minutes	Recruitment policy and procedure Values-based questions Minutes of council of governors Minutes of board of directors
5	In addition to 4. above, a trust 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.	Discussions and recommendations by the nominations committee(s) Discussion and decision at board of directors or council of governors meeting Reports, discussion and recommendations recorded in minutes of meetings Follow-up as part of continuing review and appraisal	1. Minutes of committee, board and or council meetings. 2. NED appraisal framework 3. NED competence framework 4. Notes of executive director appraisals
6	When appointing relevant individuals the trust has processes for considering a person’s physical and mental health in line with the requirements of the role, all subject to equalities and employment legislation and to due process.	Self-declaration of past health issues subject to clearance by occupational health as part of the pre-employment process Offer of appointment should be subject to this health screening If a health issue is raised, should consider if it falls within definition of disability and if it does, consider whether reasonable adjustments in compliance with the Equality Act 2010 can be made	Occupational health clearance
7	Wherever possible, reasonable adjustments are made in order that an individual can carry out the role.	Self-declaration of adjustments required Check steps taken are in line with requirements to make reasonable adjustments for employees under the Equality Act 2010 NHS Employment Check Standards Board/council of governors decision	Minutes of board meeting/council of governors meeting
8	The trust 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 and making independent enquiries. Where the individual is professionally qualified, it may include fitness to practise proceedings and professional disciplinary cases.	Same checks set out in 1. i.e. past employment history in accordance with NHS Employers pre-employment check standards including a self-declaration of fitness in which candidates provide an explanation of past conduct/character issues where appropriate Clear consequences of false, inaccurate or incomplete information included in recruitment packs	NED Recruitment Information pack Reference request for executive directors and NEDs
9	The trust 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. N.B. CQC accepts that trusts will use reasonable endeavours in this instance. The existence of a compromise agreement does not indemnify the new employer and trusts will need to ensure that their Core HR policies address their approach to compromise agreements.	Clear consequences of false, inaccurate or incomplete information included in recruitment packs Core HR policies for appointments and remuneration Checks set out in 1. above Included in reference requests Check publicly available information including serious case reviews	Executive and non-executive Recruitment Information packs Core HR policies Reference request for executive directors and NEDs
10	A person 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 must be subject to a DBS check. N.B. CQC recognises that it may not always be possible for trusts to access a DBS check as an individual may not be eligible.	Where an executive director or NED meets the eligibility criteria, trusts should apply for a DBS check If the director’s role falls within the definition of a "regulated activity", the DBS check will establish whether the person is on the children’s and/or adults’ safeguarding barred list	DBS policy DBS checks for eligible post-holders
11	As part of the recruitment/appointment process, trusts should establish whether the individual is eligible for the relevant DBS check.	Eligibility for DBS checks will be assessed for each vacancy arising	DBS policy

Appendix 4: Complying with the regulations on an ongoing basis

Below are standards that trusts are expected to meet throughout the course of an individual’s employment, the assurance process they may wish to follow, and the evidence they may wish to produce:

	Standard	Assurance process	Evidence
1	The trust should regularly review the fitness of directors to ensure that they remain fit for the role they are in; the trust should determine how often fitness should be reviewed based on the assessed risk to business delivery and/or the service users posed by the individual and/or role.	Assessment of continued fitness to be undertaken each year as part of the appraisal process Checks of insolvency and bankruptcy register and register of disqualified directors to be undertaken each year as part of the appraisal process Board/Council of Governors to review, checks and agree the outcome Regular DBS checks Regular checks of relevant professional regulator’s register Ensure there is an ongoing obligation in employment contracts to declare any criminal and/or regulatory investigations as soon as reasonably practicable	Continued assessment as part of appraisal process Register checks if necessary Board/council minutes record that process has been followed
2	If a trust discovers information that suggests an individual is not of good character after they have been appointed to a role, the trust must take appropriate and timely action to investigate and rectify the matter. The trust has arrangements in place to respond to concerns about a person’s fitness in relation to Regulation 5(3) and (4) after they are appointed to a role whether identified by the trust itself or others - and these are adhered to.	Core HR policies provide for such investigations Revised contracts allow for termination in the event of non-compliance with regulations and other requirements Contracts (for executive directors , and director-level equivalents) and agreements (for NEDs) incorporate maintenance of fitness as a contractual requirement	Core HR polices Contracts of employment (for executive directors and director-level equivalents) Service agreements or equivalent (for NEDs)
3	The trust 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 trust must demonstrate due diligence in all actions.	Core HR policies include the necessary provisions Action taken and recorded as required	Core HR policies
4	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.	Core HR policies	Managerial action taken to backfill posts as necessary
5	The trust 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.	Core HR policies	Referrals made to other agencies if necessary

Appendix 2: Role of NHS Improvement

Appendix 3: Complying with the regulations at the recruitment stage

Appendix 4: Complying with the regulations on an ongoing basis

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