Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, The Fit and Proper Persons Requirement (FPPR) for Directors came into effect for National Health Service bodies on 27 November 2014 and was extended to cover all providers regulated by the Care Quality Commission (CQC) on 1 April 2015.
The regulations include a requirement that they must be reviewed every five years, beginning five years after 1 April 2015. As yet the Department has not undertaken a review of regulation 5. Any such review would be completed with input from the CQC.
The CQC has advised that it is the provider’s responsibility to ensure that all directors appointed are fit and proper for their role. The CQC’s responsibility is to check whether providers have the right systems and processes in place to assure themselves of fitness.
The CQC has not yet conducted a thorough assessment of the regulations’ effectiveness. However, in the first years of implementation, the CQC has received feedback on how the regulation is applied, often driven by an assumption that it is CQC’s role to assess fitness directly rather than to assess providers’ systems and processes.
In response to this feedback, the CQC has considered whether its current approach is in line with what can be reasonably expected of the CQC within the current regulations. The CQC has therefore begun a programme of work to improve its internal systems and processes for handling referrals under FPPR. There are three areas of CQC’s guidance and processes that it is strengthening:
- Passing on all details of FPPR concerns raised with the CQC to providers
Presently the CQC does not pass on all concerns raised with it to providers to ask for an explanation. Instead the CQC assesses whether there are concerns that a reasonable employer should be expected to investigate and if the CQC does not think there is a substantive concern it does not pass the material on. When the CQC does share concerns, it initially summarises the information and will later send on the full material if requested.
CQC’s intention is to change both of these steps so providers are notified of all concerns and receive all of the information immediately. The CQC will set out more clearly the type of investigation it expects providers to undertake, following notification.
- Interpretation of “serious mismanagement”
CQC believes there would be benefit in developing a clearer understanding of what type of behaviour constitutes ‘serious management’. The CQC has prepared some draft guidance that characterises serious mismanagement and will shortly be publishing this for consultation. The CQC will develop the finalised draft into internal and external guidance as to how it interprets and applies this element of the regulation.
- The way CQC manages and records information regarding FPPR
It is recognised internally that CQC needs to improve the data available to itself about CQC’s application of FPPR. The CQC is developing an approach to better enable it to track the volume of FPPR concerns shared with CQC by sector and the actions that result from these.
The CQC aims that, by undertaking the programme of improvements described above, CQC will be better placed to monitor the effectiveness of Regulation 5: Fit and Proper Persons in future.