We refer to Regulation 5 as the fit and proper persons requirement for directors or ‘FPPR’. It relates to registered providers, which we refer to as ‘providers’. The related regulations and legislation are available in our guidance on the Regulations for service providers and managers.
What the regulation says
Regulation 5 recognises that individuals who have authority in organisations 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 director to make sure that providers meet the existing requirements of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
Who the regulation applies to
The regulation applies to all registered providers, but not if they are an individual or a partnership (other than limited liability partnerships). Individuals and partnerships are governed by the existing Regulation 4. For example, adult social care providers run as small enterprises by individuals who are not limited companies, or GP practices run by traditional GP partnerships will not be covered by FPPR.
It applies to a provider’s board directors, board members and equivalents (referred to in this guidance as ‘directors’), who are responsible and accountable for delivering care, including associate directors and any other individuals who are members of the board, irrespective of their voting rights. Directors are the group of people constituted (formally or informally) as the decision-making body of the organisation. The regulation applies to interim positions as well as permanent appointments. It also includes trustees of charitable bodies and members of the governing bodies of unincorporated associations.
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.
If a provider is a local authority, CQC will not expect it to apply the requirement to elected members, as they are accountable through a different route. But it will apply to the relevant local authority officers at management level who are responsible for controlling and supervising the service.
The regulation does not apply to governors of a foundation trust.
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. Following these same principles, we will continue to review the suitability of nominated individuals (Regulation 6) and registered managers (Regulation 7).
Providers are now delivering different types of care services across traditional boundaries, with some emerging new models of providing care, which can be in any organisational form. CQC refers to these as 'complex providers'. FPPR applies to the directors of whatever that organisational form happens to be. Some new models comprise multiple providers working together without a single legal entity (for example, multiple NHS trusts working together or multiple primary care providers). In these cases, FPPR applies to the directors of each legal entity (provider) that make up the network.
What constitutes a breach?
The regulation is breached if a provider has in place someone who does not satisfy the FPPR. Evidence of this could be if:
- A director is unfit on a ‘mandatory’ ground, such as a relevant undischarged conviction or bankruptcy. The provider will determine this.
- A provider does not have a proper process in place to enable it to make the robust assessments required by the FPPR.
- On receipt of information about a director’s fitness, a decision is reached on the fitness of the director that is not in the range of decisions that a reasonable person would make.
- 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 if provided in England, would be a regulated activity.