Five years have passed since the publication of the Francis report. Following the failings of care at Mid Staffordshire NHS Foundation Trust, this report and the government response delivered various measures with the intention to empower trusts, boards and staff to deliver the level of care and patient satisfaction that they genuinely aspire to provide. Included in the report was a recommendation to introduce fit and proper persons regulations (FPPR). These regulations were intended to reinforce individual and board accountability for the quality and safety of care, by providing a framework for trusts to ensure that their executive and non-executive directors are suitable individuals to hold their positions.
However, the legalistic language around the regulations can be difficult to unpick. To support trusts in complying with the regulations, CQC has published an update to their guidance. This outlines further detail on how CQC implements and applies the regulations, as well as how trusts should interpret "serious misconduct and mismanagement".
CQC does not however provide guidance on how trusts should undertake an investigation in response to concerns raised about a director’s fitness. With few precedents to draw on, this has caused trusts some difficulties in ensuring they are following best practice.
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CQC does not however provide guidance on how trusts should undertake an investigation in response to concerns raised about a director’s fitness. With few precedents to draw on, this has caused trusts some difficulties in ensuring they are following best practice. It has also caused a tension given that CQC holds trusts to account for the process that has been followed, rather than the decision taken.
In a move that highlights this tension, the government recently announced a review into the FPPR in response to the recommendations made in the Kirkup Review. While the remit of the review is yet to be announced, it is expected that it will look specifically at a few key areas, including what happens when a director moves from one NHS organisation to another and potentially whether CQC should have the power to decide whether an individual is fit or not (although the FPPR clearly place the responsibility of this judgement in the hands of trusts).
Five lessons learnt so far
Looking back over the last five years, a lot can be learned from the investigations that trusts have already carried out.
- Open lines of communication with the CQC are important at all times. Trusts are supportive of the FPPR and CQC’s role in monitoring its implementation. However there is a tension here, particularly for investigations; trusts have struggled to conduct investigations without any precedent and are concerned about the considerable financial, human and time resources necessary. It is therefore crucial for trusts to ensure they have a clear understanding of CQC’s expectations and keep in touch with CQC throughout the investigation, for example sharing information as appropriate.
- Robust recruitment and appraisal policies and procedures are paramount. The fitness of directors can be called into question at any point, so trusts will benefit from putting robust processes in place to assure themselves of a director’s fitness at the time of recruitment and throughout their employment. This is particularly pertinent given the recent wave of historic allegations and investigations across the piece, from Hollywood to UK parliament.
- The trust chair’s role is crucial. The chair is responsible for declaring that all directors are ‘fit and proper’, deciding whether and how to how to investigate any concerns raised, and making the final decision on the findings of an investigation. It is unusual for a chair to be placed in such a position and have to make significant unilateral decisions on behalf of the trust, so ensuring they are clear on their role is vital. Having contingencies in place in case a chair is subject to an investigation is also important.
- Investigations need to be carefully considered, planned and managed. Trusts have encountered challenges in conducting investigations as they can be expensive, time-consuming and, in some cases, destabilising. It has also proved a complex task to ascertain the proportionate level of independence needed, ensure everyone involved in the concerns feels heard, and deal with the effects of the outcome. Agreeing the approach and process at the beginning will help mitigate these challenges.
- Trusts need to be clear on the investigation principles at the outset. While this may depend on the individual circumstances of the case, trusts will need to balance the conflicting obligations of transparency and confidentiality where appropriate. Trusts will also need to ensure that all investigations and judgements are proportionate and take into account the context.
NHS Providers is keen to continue to support our members to implement the FPPR and will be actively engaging in the government’s forthcoming review. We encourage members to send us their feedback on this guide and their experiences of the FPPR.
The way forward: cultural and behavioural approaches
The definitions and examples of "serious misconduct and mismanagement" in CQC’s recently published guidance mean, as HSJ points out, that bullying and victimisation of staff, and failure to take “appropriate action” against such behaviour, can result in a director’s dismissal.
This specific example highlights how closely the FPPR fit with creating an open, honest culture. The failings of care at Mid Staffs and more recently at Liverpool Community Health Trust have exposed the importance of having clear accountability and the right safeguards in place to spot, manage and learn from mistakes. An open, honest and transparent culture ensures staff can raise these mistakes without fear of repercussions.
The answer is clearly not just the fit and proper person test conducted at recruitment and at regular intervals throughout employment, as the recently announced review implies. Healthcare is a risky industry and NHS trusts are highly complex organisations. The Francis report itself acknowledged that no single recommendation would solve any of the concerns it identified.
NHS Providers is keen to continue to support our members to implement the FPPR and will be actively engaging in the government’s forthcoming review. We encourage members to send us their feedback on this guide and their experiences of the FPPR.
NHS Providers has produced a briefing setting out some of the actions trusts can take to ensure their policies and procedures comply with the FPPR and meet CQC’s expectations. It also includes the lessons that trusts have learnt from conducting investigations into concerns.