Independent review finds “few fans” of the Fit and Proper Person Test

Tom Kark’s recently published review makes it clear that the current FPPT is “not working effectively” – it does not prevent poorly behaving Board level directors in provider Trusts from working in the NHS.

The executive summary neatly encapsulates the issue at the centre of the review, namely: that there is a recognition that the FPPT "does not do everything (some would say anything) that it holds itself out to do and some regard it as simply a distraction or a tick box exercise, just another hoop to go through which has no real effect on patient care or safety."

An examination of the test was recommended by Dr Bill Kirkup in his report published in 2018 into the problems at Liverpool Community Health Trust. But the role of senior management in provider organisations has been the subject of a long list of hospital inquiries (Mid Staffordshire, Morecambe Bay, Gosport and Winterbourne View) and a factor in each being a “failure or failures of management”. However, the review says that the failures also signal an “even deeper fault in the service more widely” and that is the “lack of required, adequate, quality training as to what the function of a Board is, how a good Board operates, what a good Board ‘looks like’”.

So, what are the core problems?

13 issues have been raised about the FPPT

• The test is applied “fairly vigorously” in areas such as bankruptcy, Disclosure and Barring Service and convictions, but less so or not at all in other areas such as whether a director has competence, experience and qualification to perform the role.
• The test of qualification and competence has no criteria attached to it, so is a “sliding subjective test” depending on the need of the provider to appoint a director.
• Whether the test of competence is reapplied or reassessed during a director’s career is dependent on the vigour of the chair, chief executive or a human resources director.
• CQC’s ‘Well-Led’ review does not look at the quality of the individual and whether they are a fit and proper person for the role, but only the Trust’s processes and systems for arriving at the decision that the person is a fit and proper person.
• FPPT only applies to provider roles in England – it does not prevent directors who have ‘failed’ from moving into commissioning, improvement or education roles within the NHS at director level.
• There is no central database and no continuous history of each director.
• There is poor or non-existent information retained by each Trust about each director and its decision on the FPPT.
• References for directors are ‘vanilla’ in content.
• Settlement agreements can lead to an agreed reference which fails to disclose the full background to the director’s departure where misconduct has been involved.
• Currently there is no power to disbar a director who has been proved to have committed serious misconduct from obtaining further director level jobs within the NHS.
• Trusts are sometimes required by a FPPT reference to examine the past behaviour of a director when he or she was working at another Trust.
• The FPPT can be misused by Trusts and used as an add-on to a disciplinary process.
• Elements of the test are “unclear and difficult to apply with any rigour”.

Recommendations

At 140 pages and containing seven recommendations, the review reflects that it would be easy to recommend a “higher hurdle, a strengthened test and an easier way of removing senior management”. But it would do little to “improve the perceived quality of the job of managing a Trust” and make the job less attractive – this being a fundamental problem, we have heard time and again about the lack of suitably qualified people willing to apply for senior positions at NHS Trusts.

Interestingly, the review states that none of the recommendations made should remove from the Trust Board the overarching responsibility for good corporate governance and the overall responsibility for the Board of Trusts to protect staff and their patients.

Five core recommendations

The headline recommendations are extracted from the review and set out below.

There are actions for NHS Improvement, CQC, NHS England and Arms-Length Bodies. In addition, some of the recommended amendments will require consequent amendments to Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

1. 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.
2. That a central database of directors should be created holding relevant information about qualifications and history.
3. The creation of a mandatory reference requirement for each Director. Appendix 3 has the details.
4. The FPPT should be extended to all commissioners and other appropriate Arms-Length Bodies (including NHSI and NHSE).
5. The power to disbar directors for serious misconduct, including expanding the definition of serious misconduct.

Recommendation six and seven, include an amendment to the wording of Regulation 5 and that further work is done to examine how the test works in relation to the provision of social care.

Where next? Two out of seven accepted

At a recent patient safety conference, Matt Hancock, Secretary State for Health and Social Care, accepted two of the recommendations made by Tom Kark’s review into how we can improve leadership – to ensure the FPPT is met, and that unqualified or unsuitable staff are prevented from moving to another NHS setting.

• Developing competency standards for directors and making training available. In order to give effect to this recommendation, a new schedule to the Regulations will be required.  
• Making a central database of directors’ qualification, training and appraisals.

So far as the other recommendations are concerned, Matt Hancock has asked Dido Harding, Chair of NHSI to consider those.

But looking ahead, we can’t help but feel that the way forward will also require a change in culture and behaviour within provider organisations. Do get in touch with us if you require support on any of the issues covered here.