The fit and proper person regulation (FPPR) requirements came into force for all NHS trusts and foundation trusts in November 2014. The regulations require NHS trusts to seek the necessary assurance that all executive and non-executive directors (or those in equivalent roles) are suitable and fit to undertake the responsibilities of their role.
In order to meet compliance with these requirements, all NHS trusts must ensure they have robust processes in place to assess the suitability of directors at the point of recruitment and throughout their ongoing employment. They are also required to have effective arrangements in place to tackle issues should any concerns be raised about a directors' ongoing fitness and suitability to carry out any such role. The purpose of these requirements is not only to hold board members to account in relation to their conduct and performance but also to instil public and patient confidence in those who have lead responsibility for NHS organisations and the services they provide.
The Care Quality Commission (CQC) holds NHS trusts to account in relation to FPPR as part of the key lines of enquiry under their regulatory assessment framework (under their well-led domain). Its role is to assess that NHS trusts have appropriate and effective processes in place to assess a directors' suitability and to take action if they are failing to meet these requirements. While the CQC cannot investigate or prosecute for a breach of the requirements, it can take regulatory action against an individual's breach of a regulation, condition of its registration, or other relevant requirement. It can also assess the quality of any evidence presented and whether the NHS trust has appropriately taken this into account. Where the CQC has its own concerns about a director, it has the power to take enforcement action against the employing organisation.
Guidance about FPPR requirements can be found on the CQC website (last revised in January 2018).
In 2019 the Kark review of the fit and proper persons test (FPPT) was published. The review sought to establish why the FPPT for directors was not being applied effectively. The review makes five key recommendations, as follows.
- All directors (executive, non-executive and interim) should meet specified standards of competence to sit on the board of any health providing organisation. Where necessary, training should be available.
- A central database of directors should be created holding relevant information about qualifications and history.
- The creation of a mandatory reference requirement for each director.
- The FFPT should be extended to all commissioners and other appropriate arms-length bodies (including NHS Improvement and NHS England).
- The power to disbar directors for serious misconduct.
Read the NHS Confederation's briefing on the review for a full overview of the recommendations and their initial assessment of the review.
To ensure compliance with regulatory requirements, NHS trusts must be able to demonstrate to the CQC that they have robust and effective:
- recruitment processes in place to assess the suitability of all newly appointed director as outlined within the NHS Employment Check Standards
- assessment processes in place to regularly monitor and review the ongoing fitness of directors in their employ. We would suggest that this may form part of pre-existing appraisal and revalidation processes, as appropriate
- arrangements in place to handle concerns about a directors' fitness and suitability in a timely manner, ensuring these are widely communicated and understood by all staff, including processes of appeal for directors
- arrangements in place to share relevant information to health and social care regulators and other bodies (as appropriate), if a director no longer meets the FPPR requirements.
Further information about how to meet compliance with FPPR requirements can be found in the following guidance documents.
Further useful references
- Findings from the CQC consultation on guidance and the new regulatory requirements. See NHS Employers and NHS Confederation's joint response issued on behalf of employers in response to this consultation.