Regulation 5 recognizes that individuals who have authority in organizations that deliver care are responsible for the overall quality and safety of that care. For the
purpose of this regulation, these individuals are board directors, board members, and individuals who perform the functions equivalent to the functions of a board director and member. This regulation is about ensuring that registered providers have individuals who are fit and proper to carry out the important role of the director to make sure that providers meet the existing requirements of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
The regulation applies to all registered providers, but not if they are an individual would be a Sole Trader or a partnership1 (other than limited liability partnerships).
To ensure that providers comply with the regulation, they must not have an unfit director in position. Ultimately, a provider should determine which individuals fall within the scope of the regulation, and CQC will take a view on whether they have done this effectively.
Although FPPR does not apply to individual providers or to partners in a partnership, Regulation 4 of the Health and Social Care Act expects that these providers must be of good character, possess the right competencies and skills and be physically and mentally fit to do the job in line with the Equality Act 2010. They must be able to supply CQC with documents that confirm their suitability
What constitutes a breach?
A director has 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 is provided in England, would be a regulated activity.
What CQC expects to see when a provider implements the regulation
The provider must be able to show evidence that appropriate systems and processes are in place to ensure that all new and existing directors are, and continue to be, fit . The provider should be able to demonstrate that appointments of existing directors (and new directors) have been secured through robust and thorough appointments processes.
CQC recognizes that a provider may not have had access to all relevant information about a director, or that a director may supply, or may have supplied false or misleading information. In these situations, CQC will look to see that the provider has since made every reasonable effort to assure itself about an individual by all means available and that it has addressed the issue in the light of new and additional information.
Providers need to consider the mismanagement and misconduct behaviors in relation to the services they provide, the role of the employee and the possible adverse impact on the provider
Notifying CQC of a change of director
You do need to notify CQC of a change of Director.
At the point of registration
CQC’s registration application form asks for information about directors, where relevant, for all new relevant applicants who are applying to be registered as a service provider. We require the chair of an applicant to declare that appropriate checks have been undertaken in order to reach a judgement that all directors are deemed to be fit and that none meet any of the unfit criteria. This self-declaration
forms part of the application form. CQC does not keep a list of individual directors, as this information is kept on the register of Companies House.
CQC expect applicants to be able to demonstrate that they have robust recruitment, management appraisal, disciplinary and dismissal processes in place, supported by appropriate policies. When conducting the interview of the nominated individual, CQC’s registration inspector will need to establish the extent to which the applicant understands Regulation 5; what systems and processes are in place to ensure all directors are fit; whether the directors understand their role within the context of this requirement; and whether they are aware of the various guidelines that are available that support best practice.
Enforcing the regulation
When a provider is unable to demonstrate that it has undertaken the appropriate checks when appointing directors, whether externally or through internal promotion, this may potentially indicate a breach of the regulation. CQC will use their Enforcement policy and decision tree to decide whether there is a breach of the regulation and, if so, what regulatory action to take.
In the case of a new aspirant registrant, CQC may refuse the registration if the provider is unable to satisfy them that it has made appropriate checks in line with best practice.
Misconduct and mismanagement
“Misconduct” means conduct that breaches a legal or contractual obligation imposed on the director. It could mean acting in breach of an employment contract, breaching relevant regulatory requirements.
Mismanagement is broader scope can be for several things:
“Mismanagement” means being involved in the management of an organisation or part of an organisation in such a way that the quality of decision making and actions of the managers falls below any reasonable standard of competent management.
Failing to have an effective system in place to protect staff who have raised concerns.
- Failing to learn from incidents, complaints and when things go wrong.
- Failing to implement quality, safety and/or process improvements in a timely way, where there are recommendations or where the need is obvious.
Misconduct differs from mismanagement, in that a single incident of misconduct may be so serious that it amounts to serious misconduct, whether the provider also concludes that this was incompatible with continued employment or not. However, any serious misconduct renders a director unfit within the terms of the fit and proper person requirement.
In the application, it asks that the nominated individual who is also a Director is of good character. It is hard to define this. CQC recommend looking at the following;
However, some of the features that are normally associated with
- openness (also referred to as transparency)
- ability to comply with the law.
Factors for providers to take into account when assessing ‘good character’
convictions of any offence in the UK
- convictions of any offence abroad that constitutes an offence in the UK; and
- whether any regulator or professional body has made the decision to erase,
remove or strike off the director from their register.
In the application, they do ask about any convictions. It does depend on nature and I ask those who have any kind of convictions to state them as they usually come out in the DBS. It depends on how old it is and nature. But best to tell them so they know and can make a decision.
The intention of regulation 6 is to ensure that the provider is represented by an appropriate person nominated by the organisation to carry out this role on their behalf (nominated individual). The nominated individual is responsible for supervising the management of the regulated activity provided.
This is because providers who comply with this regulation will have appointed as a nominated individual a director, manager or secretary who:
Is of good character.
Is able to properly perform tasks that are intrinsic to their role.
Has the necessary qualifications, competence, skills and experience to supervise the management of the regulated activity.
Has supplied them with documents that confirm their suitability.
CQC will refuse applications if it does not think the provider can comply with this. Although I have not had a application refused for this yet.
Many providers I work with Director and Nominated induvial is the same person.