This chapter outlines how trusts should address concerns raised regarding the fitness of an individual director. It highlights what trusts should take into account when considering whether to undertake an investigation and what they should be mindful of at each stage of the process.
CQC’s guidance places a duty on trusts to investigate, in an appropriate, timely and proportionate manner, any concerns raised about a director’s fitness or ability to carry out their duties. If these concerns are then substantiated through evidence, the trust must take proportionate, timely action and investigate the concerns thoroughly under FPPR or through the trust’s other capability process or disciplinary procedure, depending on what is most appropriate. An investigation is the process through which the board assures itself, and subsequently CQC, that any concerns raised about an individual do not render them unfit for their role. It is important to note at the outset that CQC judges the process the trust followed, not the fitness of the individual.
CQC’s national guidance states that if the trust concludes that the facts bring the director within Paragraph 5 (3) then the director must be dismissed from their position. If the trust concludes that the facts do not bring the director within Paragraph 5 (3), the trust is not required to relieve the director of their responsibilities and dismissal is not necessary, but trusts may still take another form of disciplinary action as appropriate.
CQC’s guidance places a duty on trusts to investigate, in an appropriate, timely and proportionate manner, any concerns raised about a director’s fitness or ability to carry out their duties.
If the trust does not satisfy CQC that it has followed a robust employment process combined with ongoing assessments when in post, CQC will either ask the trust for further information, carry out a follow-up focused inspection, or potentially take regulatory action in line with its enforcement policy. If a trust has applied the appropriate checks but made a decision about the fitness of a director that, in CQC’s eyes, no reasonable person would have made, CQC will apply its enforcement policy to decide if there had been a breach of the requirement relating to good governance (Regulation 17) and/or fit and proper persons employed (Regulation 19).
Investigations conducted under the FPPR are complex and unique, so trusts will need to take different approaches depending on individual circumstances. For that reason, and rightly so, there is no specific procedure that dictates how trusts should act when concerns arise, but it is clear that a robust, fair and transparent procedure must be followed to retain the public and staff’s confidence.
The breadth of the FPPR means that the requirements apply to all directors and those performing similar or equivalent roles. When drawing up fit and proper persons processes, trusts will benefit from having an adequately flexible approach. For example, the trust chair normally has responsibility for ensuring compliance with the FPPR and therefore oversight of any ensuing investigation; if a concern is raised about the chair that needs to be investigated under the FPPR, arrangements need to be in place for who will take a leading role in the investigation.
There is no specific procedure that dictates how trusts should act when concerns arise, but it is clear that a robust, fair and transparent procedure must be followed to retain the public and staff’s confidence.
The following ten step guide suggests things to be mindful of when considering a fit and proper persons investigation:
Step 1: Receiving concerns in relation to a director
Key factors to consider:
- CQC will share all information it receives relating to the fitness of a director with the trust currently employing them
- trusts will be expected to assess this information and demonstrate to CQC that they have taken due steps to assure themselves of the director’s fitness.
Matters that cause concern regarding the fitness of an individual can be raised via CQC to the trust chair or directly to the trust. On receipt of information from a third party regarding an alleged lack of fitness of a director, CQC will pass on all information that falls under FPPR to the trust and will inform the director to whom the case refers. CQC will seek consent from the person providing the information to do this, and will protect their anonymity if necessary; however, if consent is not given and there is potential risk to service users, CQC will proceed regardless. When CQC shares information of concern with a trust, it will ask the trust to detail the steps they have taken to assure themselves of the fitness of the director, and what action they intend to take. Trusts will need to provide assurance to CQC, as stated in their guidance, that they have used a robust and thorough process to come to a reasonable conclusion about the fitness of a director. In some cases, the facts may be disputed by different people and an investigation into the relevant facts may be necessary.
Some concerns may arise directly from patients, whistle-blowers or criticism of directors in employment tribunal judgements; if these are significant in the view of the trust, it is appropriate for the trust to consider these in the same way as concerns received by CQC.
Matters that cause concern regarding the fitness of an individual can be raised via CQC to the trust chair or directly to the trust.
Step 2: Deciding whether an investigation is necessary
Key factors to consider:
- the proportionate action required depending on the nature of the concerns raised
- any previous employment tribunal rulings or outcome of investigations.
The FPPR set out the expectation that a trust must investigate and take appropriate and proportionate action when concerns are raised about an individual director under FPPR. The chair leads on addressing these concerns on a case by case basis and will need to consider whether an investigation is necessary or appropriate given the allegation. The chair may choose to consult with the senior independent director and the director of workforce to determine the appropriate process to follow and action to take.
In cases where it is necessary for the trust to take action, there should be a clear procedure on whether the trust will follow capability processes such as performance management, or whether a fit and proper persons investigation is necessary and in what form. For example, a preliminary investigation could establish that the issues the allegation relates to may have already been considered as part of the fit and proper person checks carried out at the appointment stage and therefore require no further investigation. The FPPR investigatory process must also comply with the governing disciplinary proceedings.
In some cases, no investigation will be required because the trust has established that the allegation was without substance, or alternatively where the trust does not consider the matter to fall under the scope of the FPPR. A trust may consider other options such as a governance review into the board, the organisational culture or a specific individual. This may be appropriate in some cases where transparency is paramount.
Trusts should also consider whether the findings of previous employment tribunals are sufficient when dealing with a concern raised about a fit and proper person, depending on the case and the amount of time passed since the ruling was made.
If an investigation is necessary, it is important that it is carried out as promptly as possible and that clear timescales are agreed at the beginning of an investigation.
Trusts should also consider whether the findings of previous employment tribunals are sufficient when dealing with a concern raised about a fit and proper person, depending on the case and the amount of time passed since the ruling was made.
Step 3: Choosing who should carry out the investigation
Key factors to consider:
- the level of independence necessary to ensure an impartial investigation and assessment of the facts, and to reassure the individual(s) who raised the concern.
While there is no set process to follow, investigations must have the necessary level of independence, robustness, thoroughness and transparency so that the public and staff can have confidence that due process has been followed.
Trusts should apply discretion as to who should be the investigator, taking into account the seriousness and/or complexity of the concern raised. In some circumstances, it may be appropriate for the trust chair to lead an internal investigation. If a trust decides to undertake an internal investigation into the concern pertaining to an alleged lack of fitness, the chair must collect evidence and consider whether the director remains fit and proper. If the chair is assured, then no further action is needed but if concerns remain, the trust may need to seek legal advice on removing the individual.
In other circumstances, for example if the allegation to be investigated is serious and/or complex, it may be appropriate to have a greater level of independence in the investigation. This may mean appointing someone who is detached from the matter and has no conflict of interest, such as an external investigator or legal representative to carry out an impartial investigation into the facts. The level of independence should be decided on a case by case basis.
Trusts should apply discretion as to who should be the investigator, taking into account the seriousness and/or complexity of the concern raised. In some circumstances, it may be appropriate for the trust chair to lead an internal investigation.
The 'independent element' could include, but is not limited to:
- legal advice
- expert HR advice
- independent expert, such as a patient safety expert
- non-executive directors from another trust
- peer review
- barrister
- external investigator.
Trusts will want to carefully consider any decision to appoint an external investigator or expert due to the financial costs on the organisation. This decision should balance the need for fairness with the drive to be cost-effective and efficient. It is crucial to choose an investigator with the right level of training and sufficient experience in conducting investigations of this type. The chosen investigator must act fairly and objectively, have the right skills and competencies, and adhere to the remit of the investigation.
If an independent expert is instructed to work alongside the investigator, it would be important to ascertain whether they form part of the investigation team or are instructed to provide independent expert evidence to the investigator.
The below table should be useful for trusts when deciding which type and level of investigation may be applicable:
Step 4: Deciding the remit of the investigation
Key factors to consider:
- decide the terms of reference, scope and timeframes of the investigation at the outset.
When undertaking an investigation, trusts will benefit from deciding its scope, remit and terms of reference at the outset. The terms of reference should clearly explain what the investigation is required to examine and which of the requirements under the FPPR are relevant to it. If new matters come to light during an investigation, it may be necessary to amend the original terms of reference.
Both internal and external investigators must only conduct a reasonable investigation, meaning that they do not have to investigate every detail of the matter, only what is reasonably likely to be important and relevant. Trusts should take a reasonable approach in deciding what the scope of the investigation should be. For example, the investigator (whether this is the trust or an externally appointed investigator), may decide not to reinvestigate issues that have already been considered and settled, such as in the context of an employment tribunal case. CQC’s guidance states that trusts may use "core public information sources" as part of their fit and proper persons due diligence. Trusts may also choose to rely on such sources to inform the scope of any additional investigation that they are required to carry out, as well as additional information sources.
When concerns are reported to the trust by the public or whistle-blowers, the investigation should wherever possible interview all individuals who have raised concerns about a director. Problems may arise if the whistle-blower refuses to be interviewed or to sign a confidentiality agreement prior to interview. Confidentiality agreements signed by all witnesses (including the whistle-blower) can be used to protect the integrity of the investigation.
Both internal and external investigators must only conduct a reasonable investigation, meaning that they do not have to investigate every detail of the matter, only what is reasonably likely to be important and relevant.
Step 5: Deciding who to engage in the investigation
Key factors to consider:
- the level of involvement of non-executive directors and, where applicable, councils of governors.
In addition to the legal duty on the trust chair, involving the wider board of executive and non-executive directors, as well as councils of governors in NHS foundation trusts, is of utmost importance. It may well be that in a trust’s processes, the nominations and remuneration committee may be required to commission an investigation under FPPR relating to an executive director. In any case, the committee should be kept informed throughout the investigative process. It is worth noting that they can provide valuable
experience from other sectors to support the chair.
In cases where the investigation relates to the chief executive, it would be important to consider the extent to which the executive directors should be involved in an investigation into their line manager. In this scenario, trusts may want to consider whether the involvement of the executive directors in commissioning or indeed conducting the investigation may lead to an actionable loss of confidence, namely that the chief executive’s authority would be undermined to the extent that their position would become untenable. This may risk leading to a constructive dismissal claim.
In a foundation trust, the council of governors (which is responsible for appointing and removing non-executive directors), may be required by the chair to commission a fit and proper person investigation relating to a non-executive director. Similarly, the chair should inform the governors of the investigation from the outset in confidence and keep them informed throughout. However, the tension between confidentiality and transparency may lead to the chair involving only the lead governor.
In cases where the investigation relates to the chief executive, it would be important to consider the extent to which the executive directors should be involved in an investigation into their line manager.
Step 6: Agreeing any interim action
Key factors to consider:
- whether the responsibilities of the director in question should be limited during the investigation
- how to support a director who is subject to an investigation.
Trusts must carefully consider any interim action to minimise risk to people who use the service, including whether there are grounds for suspension of the director in question while the investigation is underway. This decision should be informed by whether there is any risk to patient safety. It is important to emphasise that suspension is not an assumption of guilt or a disciplinary sanction, but an action to mitigate likely disruption to the trust’s business. Suspending a director is often considered to be potentially destabilising for the trust. It may instead be more practical to consider less drastic action, such as temporary variation or restriction of the director’s responsibilities in areas that are directly linked to the concerns.
Fit and proper persons allegations and investigations can have a significant emotional impact on the director in question through increased pressure and stress. It is therefore essential that trusts adhere to principles of duty of care, natural justice and procedural fairness. It is important to acknowledge that even knowledge of an investigation can affect a person’s reputation in the workplace and can influence the way they are treated by their colleagues. Therefore, trusts should carefully consider how the director in question should be supported throughout the investigation.
Key factors to consider when supporting directors subject to an investigation
The type and level of support for directors during an investigation will depend on individual circumstances but may include, for example:
- providing information about the different stages of the investigation and their contribution throughout the process
- supported time off to receive external advice about the investigation (e.g. to meet with professional bodies).
Trusts should bear in mind that the director in question has the right to a hearing of their case in front of the decision maker, to ask questions of witnesses, to make representations to the investigator and bring witnesses themselves, and to be properly represented.
Trusts must carefully consider any interim action to minimise risk to people who use the service, including whether there are grounds for suspension of the director in question while the investigation is underway.
Step 7: Gathering evidence
Given that every investigation will be different, the facts and information required to establish the continued fitness or otherwise of the individual against whom an allegation is made will vary. However, there are some general themes and challenges.
Key factors to consider:
- potential challenges in obtaining relevant information
- identify interviewees as early as possible
- how to safely store and protect the confidentiality of information collected.
Obtaining information
CQC’s national guidance states that if the concerns relating to the director occurred while with another employer, the current employer will need to "make sufficient attempts to obtain the relevant information from the previous employer(s)".
- Trusts may face legal difficulties when trying to obtain information in cases where the concerns relate to events that may have occurred in previous employment, including where applicable at another trust.
- Particular difficulties could potentially arise when the concerns are very serious, the nature of the concerns merits a comprehensive investigation with a clear conclusion, or the other trust concerned is not prepared to help.
- Trusts need to make sufficient attempts to obtain the relevant information from the previous employer, but they have no legal powers to compel witnesses to give evidence or disclose documents when undertaking a fit and proper person investigation.
- As such, they are reliant on the good will of other organisations to cooperate in the investigation, which risks being a significant constraint.
- Trusts (or those carrying out the investigation on their behalf ) should be able to demonstrate that they have made sufficient attempts to obtain the relevant information from the previous employer and corroborate the validity and reliability of the evidence that forms part of the investigation, while recognising the legal restrictions they are subject to.
Large scale or complex issues
Investigations can range from involving only small scale issues to those that relate to large scale or complex issues which require a large number of people to be interviewed, or where there is a great deal of documentation to be reviewed.
- In all cases, investigators should identify people they wish to speak to at as early a point as possible so that arrangements can be made as quickly as possible and the investigation is carried out without delay.
- As already outlined above, evidence will often be available in many forms so that trusts may also give weight to other sources of information related to the events under investigation, such as findings from reports produced from related investigations or tribunal rulings.
Ensuring the integrity of the investigation
Trusts should consider how to ensure the integrity of the investigation. This should include:
- Ensuring that documents and materials generated in the course of the investigation are properly stored
- Recording all interviews conducted by the investigator and producing full transcripts for each interview. This may include sharing the transcript with the witness
- In addition, most of the information trusts collect during an investigation will be confidential. In some cases, forgoing this confidentiality may be necessary – such as in order to assess the reliability of evidence from a witness by assessing how it contrasts with information already collected.
Unless in exceptional circumstances, all evidence gathered regarding the individual in question should be shared with them so they have an opportunity to comment on them.
Following the evidence gathering phase, trusts will need to analyse the evidence they have collected and arrive at a factual conclusion.
In all cases, investigators should identify people they wish to speak to at as early a point as possible so that arrangements can be made as quickly as possible and that investigation is carried out without delay.
Step 8: Managing competing factors during the investigation
Key factors to consider:
- the relative merits of transparency and confidentiality depending on the individual case
- how to present the findings and outcome of the investigation.
Conducting a fit and proper persons investigation brings challenges in balancing the competing obligations of transparency and confidentiality. Trusts must conduct investigations in compliance with their duty of confidentiality to the director in question as their employer, and also be mindful that any premature or inappropriate disclosure of information into the public domain could affect the integrity and impartiality of the investigation and prejudice its findings, as well as potentially expose the trust to a constructive dismissal claim. Trusts may want to consider requiring all witnesses to sign confidentiality agreements during the course of the investigation to guard against premature disclosure of information prior to the publication of the summary. However, the findings and outcome of the investigation should be properly open and transparent. This may include publishing a summary of the findings and outcome of the investigation as soon as it is appropriate and practicable.
Providing information that an investigation is being undertaken should help give confidence to complainants and the public that the allegation is taken seriously and addressed appropriately, but at the same time a director whose conduct has been called into question has the right to privacy and to expect that information will not be unreasonably disclosed, nor their reputation unjustifiably damaged.
Once an investigation is complete, trusts should also consider what information should be provided about its outcome. Further difficulties may arise if implicated individuals resign before or mid-way through the investigation. In some cases, trusts can decide to continue with their investigation process and reach a conclusion in the individual’s absence. It is therefore important for trusts to weigh up public interest and transparency, even in relation to individuals who may no longer be employed by the trust.
Conducting a fit and proper persons investigation brings challenges in balancing the competing obligations of transparency and confidentiality.
Step 9: Making a final decision
Key factors to consider:
- the possibility of an appeal
- any subsequent action necessary, such as informing the regulator
- the written report of the findings of the investigation should present
the methodology, evidence and outcome in a clear, objective way.
Following an investigation, it should be the decision-maker and not the investigator who makes the final decision as to whether the facts bring the director within any of the categories set out in Paragraph 5(3). This responsibility under the FPPR rests solely with the chair. The process should also allow the director in question a right to appeal against any outcome of the investigation. The composition of any appeal panel should also meet the requisite level of independence.
Should there be sufficient evidence to support a conclusion that the individual is not or is no longer fit and proper, the final part of the investigation process consists of the application of the appropriate disciplinary action and, if the individual is registered with a professional regulator (General Medical Council, Nursing and Midwifery Council etc.), informing the regulator in question of the outcome of the investigation.
The person carrying out the investigation should produce a written report on findings based on fact and supported by the evidence, including whether the findings led the investigator to believe that the fit and proper person criteria continue to be met or not.
The report should include:
- a brief summary of the concerns, including investigation methodology and evidence considered
- an account of events in chronological order
- clarification of findings based on an objective assessment of the evidence considered
- a clear statement as to whether or not the investigator(s) believe the fit and proper person criteria continue to be met
- witness statements, interview records, and any other evidence should be attached as appendices to the report.
The person carrying out the investigation should produce a written report on findings based on fact and supported by the evidence, including whether the findings led the investigator to believe that the fit and proper person criteria continue to be met or not.
Step 10: Managing the effects of the outcome
Key factors to consider:
- having a clear, transparent communications strategy to manage the outcome of the investigation, including any freedom of information requests or media queries.
Trusts should have a clear and transparent ongoing communications strategy not only during the investigation but also once the outcome of the investigation is known. It is not unusual for complaints to be made regarding how investigations are carried out. The high stakes and the seniority of those to whom the FPPR apply heighten this possibility. There are a number of reasons why someone might complain, such as a belief that the allegation was not taken seriously or in an attempt to discredit the investigation process. Therefore, taking a proactive and professional approach to dealing with dissatisfaction demonstrates that the trust is committed to a fair and impartial investigation.
In terms of media queries in relation to an investigation, a trust will need to balance its commitment to be open and transparent with the legal duty of confidentiality owed to the director in question.
Once an investigation has been carried out and the individual in question cleared of the alleged misconduct, there is the potential risk of repeated allegations being made about the same individual in the future. If it is readily apparent that the issues have already been identified and no additional matters are identified as a result of any future allegations, trusts should not be expected to carry out any further investigations.