Fit and Proper Person Requirement for Directors (England) Policy

Introduction

Directors of organisations registered with the Care Quality Commission must meet similar “fit person” requirements to those for registered persons and employees. Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Fit and proper person requirement for directors extends the idea of a “fit and proper person” to anyone with authority in a providing organisation so that they accept responsibility for the overall quality and safety of the care provided.

An executive or non-executive director as someone in authority can therefore be held accountable if the standards of care provision for their organisation do not meet legal requirements.

This policy sets out how a care provider registered as an organisation, which appoints directors in any capacity, to help with the running of the business can comply with Regulation 5 and meet Care Quality Commission requirements.

Policy Statement

To meet its legal requirements, the organisation will ensure that anyone who is or has been appointed as a director to a position of authority is:

(a) of “good character” as defined in Schedule 4 Part 2 of the regulations (see annex below) and Care Quality Commission guidance to meeting regulation 5
(b) qualified, competent, sufficiently experienced to carry out the role
(c) sufficiently healthy to carry out the role
(d) has no personal history of serious misconduct or mismanagement in carrying on a regulated care activity, which would make the person ineligible for the role. (See Schedule 4 Part 1 of the regulations in the annex).

Appointment of New Directors

The organisation has put into place systems and procedures to make sure that every new appointment to a director role is fully compliant with each of the requirements described in (a) – (d) above and as follows.

(a) Test of “good character”

Before an appointment is sought or confirmed, the organisation will make every effort to obtain all the essential background information on the applicant or person under consideration, including their employment history, as it does for any employee. This will include carrying out enhanced criminal record checks and where relevant to the role barring list checks as follows.

Disclosure and Barring Service list checks will be made when the appointee will be carrying out or engaged in regulated activity that makes her or him eligible for such checks to be made in line with the Protection of Freedoms Act 2012.
Checks against applicable professional registration lists such as the Nursing and Midwifery Council register or Health and Care Professions Council registers will be made if continuing registration is essential to the role.
Checks against professional registers will also be requested to make sure that the prospective appointee has not been struck off any register to which he or she belonged as a result of misconduct and which could mean that the person would be unfit to fulfil a position of trust and authority with the organisation.

It is unlikely that the organisation will proceed with an appointment if there is evidence that the “good character” test has not been made. In exceptional circumstances the organisation could proceed with the appointment despite the person failing to achieve the criteria set out in Schedule 4. In such cases the organisation will make sure that it records fully the reasons for justifying the appointment and will notify the Care Quality Commission of its decision and reasons.

(b) Essential qualifications, competence, skills and experience.

In line with its recruitment and selection strategies the organisation will always appoint to director positions people who either have the necessary qualifications, competence, skills and experience or those who have relevant qualifications and experience that provide a platform for their development in the role to which they are appointed. The organisation will then enable them to develop any specific competences required by their role within a reasonable and practicable time-scale.

(c) Health Requirements

The organisation will make checks to make sure that people appointed to director positions are physically and mentally able to carry out their responsibilities. It will also make any necessary adjustments under the Equality Act 2010 to enable any appointee who has disabilities or impairments to carry out their work.

(d) The Unfit Person Test

The organisation will make checks to make sure that the appointee does not meet any of the criteria listed in Part 1 of Schedule 4 of the regulations as described in the annex below. No appointment will be made if it is found that the prospective appointee has failed to meet the requirements of Schedule 4 in any way.

Review of Fitness in Office

The organisation is aware that Regulation 5 applies to all directors, not just new appointments, and that they must continue to meet the fitness test in office. It is therefore applying the fitness test as described for new appointments retrospectively to all current directors. It has also developed a system of (eg annual) reviews to check that all of its directors remain compliant with the regulations.

It will take the appropriate action to investigate and address any review outcome that raises questions or issues about the fitness of the person to carry as a director and position of trust and authority.

Records

The organisation will maintain records of the processes used to establish and maintain the fitness of its directors, which it understands could be needed by the Care Quality Commission in its ensuring that there is compliance with regulation 5. All records and record keeping on this matter are in line with confidentiality and data protection requirements.

Training

The organisation offers all new and current directors suitable training opportunities to make sure that they can carry out their respective duties competently. All new directors have an induction programme to make sure that they understand fully the values and aims of the organisation as well as their respective contributions to achieving its objectives.

Signed:	________________________________
Date:	________________________________
Policy review date:	________________________________

Annex: Schedule 4 Regulation 5

Good character and unfit person tests

Part 1: Unfit person test

1. The person is an undischarged bankrupt or a person whose estate has had sequestration awarded in respect of it and who has not been discharged.
2. The person is the subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order or an order to like effect made in Scotland or Northern Ireland.
3. The person is a person to whom a moratorium period under a debt relief order applies under Part VIIA (debt relief orders) of the Insolvency Act 1986(b).
4. The person has made a composition or arrangement with, or granted a trust deed for, creditors and not been discharged in respect of it.
5. The person is included in the children’s barred list or the adults’ barred list maintained under section 2 of the Safeguarding Vulnerable Groups Act 2006, or in any corresponding list maintained under an equivalent enactment in force in Scotland or Northern Ireland.
6. The person is prohibited from holding the relevant office or position, or in the case of an individual from carrying on the regulated activity, by or under any enactment.

Part 2: Good Character

7. Whether the person has been convicted in the United Kingdom of any offence or been convicted elsewhere of any offence which, if committed in any part of the United Kingdom, would constitute an offence.
8. Whether the person has been erased, removed or struck-off a register of professionals maintained by a regulator of health care or social work professionals.

Reference:Guidance for providers on meeting the regulations, Care Quality Commission, available on the CQC website

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Reviewed on: {{last_update_date}}

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CH121. Fit and Proper Person Requirement for Directors