The FPPR came into force for all NHS trusts and foundation trusts in November 2014. The regulations require trusts to assure themselves that all executive and non-executive directors (or those in equivalent roles) are fit and proper individuals to carry out their role.
The purpose of the FPPR is not only to hold trust board members to account in relation to their conduct and performance, but also to instil confidence in the public that the individuals leading NHS organisations are suitable to hold their positions.
The CQC holds trusts to account in relation to the FPPR through the well-led key question of its regulatory model. During a well-led review, CQC will always consider FPPR issues. If a referral to CQC deems it necessary, then CQC will also assess whether trusts have robust systems and processes in place to ensure all directors meet the requirements of the FPPR at the recruitment stage and subsequently throughout their employment. If CQC is concerned that a trust is not discharging its FPPR responsibilities properly, it may take enforcement action against the trust, such as cancelling the trust’s registration or prosecution.
Since the introduction of the FPPR over three years ago, some trusts have been undertaking investigations to address concerns raised about a director’s fitness. It is therefore timely to now share their learning. While it is crucial for all trusts to ensure they have robust policies and procedures in place to assess directors at appointment and regularly throughout their employment, trusts should also be prepared for the eventuality of concerns being raised against a director, and have arrangements in place for how these would be handled.
The purpose of the FPPR is not only to hold trust board members to account in relation to their conduct and performance, but also to instil confidence in the public that the individuals leading NHS organisations are suitable to hold their positions.
This briefing aims to support trust boards to accurately interpret and effectively apply the FPPR, including undertaking investigations. While this document can be used as a practical toolkit, trusts may wish to seek legal advice in their particular circumstances as necessary.
This briefing complements and builds on existing guidance from CQC and provides insights drawn from the experiences of trusts. These insights have been collected through interviews with trusts that have been involved in fit and proper persons investigations, as well as a roundtable discussion with a range of trusts from across the acute, community, mental health and ambulance sectors.
The role of the Care Quality Commission
In the national guidance, CQC makes it clear that it has no remit to investigate the fitness of individuals. It is for the trust to consider whether the director in question remains fit and proper. CQC’s role is to assess that trusts have followed appropriate, effective and robust processes, and to take action against a trust if they are failing to meet these requirements. CQC cannot prosecute for a breach of the FPPR or any of its parts, but as the regulator of health and social care services in England, it can take regulatory action to address an individual’s breach of a regulation, condition
of registration or other relevant requirement.
CQC assesses compliance with the FPPR at three different stages:
1. At the time of applications for registration.
2. During the inspection process, under the 'well-led' key question and key lines of enquiry as well as through the annual well-led inspection .
3. When concerns are raised about individuals.
The role of CQC in determining whether a trust's processes and investigations are satisfactory should be confined to forming a view on the quality of the evidence and whether it has been taken into account, rather than attempting to interrogate the decision of the board. If CQC has its own concerns about a director, it will instigate enforcement action against the trust.