This article relates to the CQC key question: Is your practice well-led?
From 1 April 2015 all providers carrying on a regulated activity must meet the new Regulation 5: fit and proper persons: directors.
This regulation aims to ensure that all directors of registered providers carrying out a regulated activity are responsible for the overall quality and safety of that care, and for making sure that care meets the existing regulations and effective requirements of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. It ensures that those individuals are fit and proper to carry out this important role.
Practices already have a general obligation to ensure that they only employ individuals who are fit for their role. CQC assesses the fitness of 'corporate' service providers (that is, all providers other than individuals and partnerships) by focusing on the fitness of their ‘nominated individuals’. When assessing the fitness of the nominated individual, we consider whether the provider has taken appropriate steps to ensure they:
- are of good character
- are physically and mentally fit
- have the necessary qualifications, skills and experience for the role, and
- can supply certain information (including a Disclosure and Barring Service (DBS) check and a full employment history).
The introduction of the fit and proper persons requirement (FPPR) imposes an additional requirement on directors. It goes further by barring individuals who are prevented from holding the office (for example, under a director’s disqualification order) and significantly, excluding people who:
'have been responsible for, been privy to, contributed to or facilitated any serious misconduct or mismanagement (whether unlawful or not) in the course of carrying on a regulated activity, or providing a service elsewhere which, if provided in England, would be a regulated activity"'.
Other criteria for an ‘unfit’ director include:
- sequestration and insolvency
- appearing on barred lists and being prohibited from holding directorships under other laws.
Who does the fit and proper persons requirement apply to?
Regulation 5 will apply to providers’ directors, or equivalent, who are responsible and accountable for delivering care. Directors are the group of people constituted (formally or informally) as the decision making body of the organisation.
It will apply to interim positions as well as permanent appointments. The ultimate responsibility for discharging this requirement lies with the chair of the provider and it is for providers to determine which individuals fall within the scope of the regulation. CQC will take a view on whether this has been done effectively.
What kinds of organisations does FPPR apply to?
Regulation 5 applies to all providers that are not individuals or partnerships (other than limited liability partnerships) who carry on a regulated activity. This includes (but is not limited to):
- Public and private limited companies
- Charitable bodies
- Unincorporated associations
- Limited Liability Partnerships (LLPs)
- Community Interest Companies (CICs)
What kinds of organisations does FPPR not apply to?
Individuals and partnerships are not covered by Regulation 5 but are governed by the existing Regulation 4. Therefore GP practices run by traditional GP partnerships will not be covered by FPPR. However, under Regulation 4 there is an expectation that registered providers or their partners must:
- be of good character
- possess the right competencies and skills, and
- be physically and mentally fit to do the job.
They must be able to supply CQC with documents that confirm their suitability.
How does the provider show it meets FPPR?
A provider should:
- Provide evidence that appropriate systems and processes are in place to ensure that all new directors and existing directors are, and continue to be, fit, and that no appointments meet any of the unfitness criteria set out in Schedule 4 of the regulation.
- Board directors should be of good character, have the required skills, experience and knowledge and that their health enables them to fulfil the management function.
- None of the criteria of unfitness should apply, which include bankruptcy, sequestration and insolvency, appearing on barred lists and being prohibited from holding directorships under other laws.
- Directors should not have been involved or complicit in any serious misconduct, mismanagement or failure of care in carrying on a regulated activity.
- Make every reasonable effort to assure itself about an individual by all means available.
- Make specified information about directors available to CQC.
- Be aware of the various guidelines available and to have implemented procedures in line with this best practice.
- Where a director no longer meets FPPR, inform the regulator in question where the individual is registered with a health care or social care regulator, and take action to ensure the position is held by a person meeting the requirements.
A Community Interest Company offers services to an urban community of over 12,000 people across multiple sites. It has a Board of Directors which provides the leadership and governance of the organisation. Since it is a Community Interest Company, Regulation 5 would apply and the organisation would need to ensure its Directors meet the requirements of the regulation.
A large federation of GP practices provides care for approximately 70,000 patients in an urban area across multiple sites. Despite the large scale of the practice and its multiple sites, it operates as a traditional (though large) partnership. Since it is a partnership, Regulation 5 would not apply. However, the partnership would still need to ensure that its partners met the requirements of Regulation 4 (see above).
- Professor Nigel Sparrow is senior national GP advisor and responsible officer at the CQC