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Regulation 5: Fit and proper persons: directors
Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 5
The intention of this regulation is to ensure that people who have director level responsibility for the quality and safety of care, and for meeting the fundamental standards are fit and proper to carry out this important role.
CQC cannot prosecute for a breach of this regulation or any of its parts, but we can take regulatory action. See the offences section of this guidance for more detail.
The regulation in full
5.—
- This regulation applies where a service provider is a body other than a partnership.
- Unless the individual satisfies all the requirements set out in paragraph (3), a service provider must not appoint or have in place an individual—
- as a director of the service provider, or
- performing the functions of, or functions equivalent or similar to the functions of a director.
- The requirements referred to in paragraph (2) are that—
- the individual is of good character,
- the individual has the qualifications, competence, skills and experience which are necessary for the relevant office or position or the work for which they are employed,
- the individual is able by reason of their health, after reasonable adjustments are made, of properly performing tasks which are intrinsic to the office or position for which they are appointed or to the work for which they are employed,
- the individual has not 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, and
- none of the grounds of unfitness specified in Part 1 of Schedule 4 apply to the individual.
- In assessing an individual's character for the purposes of paragraph (3)(a), the matters considered must include those listed in Part 2 of Schedule 4.
- The following information must be available to be supplied to the Commission in relation to each individual who holds an office or position referred to in paragraph (2)(a) or —
- the information specified in Schedule 3, and
- such other information as is required to be kept by the service provider under any enactment which is relevant to that individual.
- Where an individual who holds an office or position referred to in paragraph (2)(a) or (b) no longer meets the requirements in paragraph (3), the service provider must—
- take such action as is necessary and proportionate to ensure that the office or position in question is held by an individual who meets such requirements, and
- if the individual is a health care professional, social worker or other professional registered with a health care or social care regulator, inform the regulator in question.
Guidance
We have made a minor update to the guidance that sits underneath regulation 5 Fit and proper person 5(3)(e) in the guidance for providers on meeting the regulations. This is to make explicit that we expect providers to undertake an enhanced DBS check for directors to check that they are on the children’s and / or safeguarding barred list where they meet the eligibility criteria. The update is shown below in bold:
In addition, where a director meets the eligibility criteria, providers should establish whether the person is on the children's and/or adults safeguarding barred list and whether they are prohibited from holding the office in question under other laws such as the Companies Act or Charities Act.
Component of the regulation |
Providers must have regard to the following guidance |
5(1) This regulation applies where a service provider is a body other than a partnership |
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5(2) Unless the individual satisfies all the requirements set out in paragraph (3), a service provider must not appoint or have in place an individual— (a) as a director of the service provider, or (b) performing the functions of, or functions equivalent or similar to the functions of a director. |
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5(3)(a) the individual is of good character |
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5(3)(b) the individual has the qualifications, competence, skills and experience which are necessary for the relevant office or position or the work for which they are employed, |
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5(3)(c) the individual is able by reason of their health, after reasonable adjustments are made, of properly performing tasks which are intrinsic to the office or position for which they are appointed or to the work for which they are employed, |
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5(3)(d) the individual has not 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, and |
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5(3)(e) none of the grounds of unfitness specified in Part 1 of Schedule 4 apply to the individual. |
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5(6) Where an individual who holds an office or position referred to in paragraph (2)(a) or (b) no longer meets the requirements in paragraph (3), the service provider must— (a) take such action as is necessary and proportionate to ensure that the office or position in question is held by an individual who meets such requirements, and (b) if the individual is a health care professional, social worker or other professional registered with a health care or social care regulator, inform the regulator in question. |
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Related legislation
Related guidance
Conduct, ethics and performance
For all services
Standards of conduct, performance and ethics (Health and Care Professions Council)
The seven principals of public life (Committee on standards for public life)
Standards of conduct, ethics and performance (General Pharmaceutical Council)
Standards of conduct, ethics and performance (General Pharmaceutical Council)
Disclosure and Barring (DBS)
For all services
Disclosure and Barring identity checking guidelines
Disclosure and Barring Service (DBS) checks guidance (Care Quality Commission)
Equality and human rights
For all services
Eemployment statutory Code of Practice (Equality and Human Rights Commission)
Guidance about age discrimination (Equality and Human Rights Commission)
General resource
For all services
- Last updated:
- 25 January 2018