Kark and beyond: what it means for leadership in the NHS

Eight months on from the publication of Tom Kark QC’s review into the Fit and Proper Persons Test – the regulation requirement that came into force in 2014 requiring trusts to make sure all directors are suitable and fit to undertake the responsibilities of their role – we reflect on the review, where we are now and what the future holds.

“It cannot be right that there are no agreed competencies for holding senior positions in the NHS or that we hold so little information about the skills, qualifications and career history of our leaders. A series of reports over the last decade have all highlighted a ‘revolving door’ culture, where leaders are quietly moved elsewhere in the NHS, facilitated by ‘vanilla’ references. These practices are not widespread, but they must end.” Interim NHS People Plan, June 2019.

The Kark review has made it clear that the current FPPT is “not working effectively” and does not prevent poorly behaving Board level directors in provider Trusts from working in the NHS. 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."

The review follows Bill Kirkup’s report into the failings at Liverpool Community Health NHS Trust in February 2018 and comments by NHS Improvement chair, Baroness Harding. In an interview with the Health Service Journal in April 2018, Harding called for a much “firmer” fit and proper person test and pledged the regulator would stop “recycling” senior NHS managers who cross “a moral line”.

According to the review the failures also signalled an “even deeper fault in the service more widely” and 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’”.

The recommendations

At 140 pages and containing seven recommendations, the review commented 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 the regulations.

  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. Tom Kark QC has been told that the Department of Health and Social Care has accepted the mandatory references recommendation. This will have a clear impact upon the negotiation of references within settlement agreements.
  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.

Two out of seven accepted

The Government 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:

  • To developing competency standards for all NHS directors.
  • To create a central database of NHS director employment and training data.

So far as the other recommendations are concerned, the Government has recently confirmed that Baroness Harding has been asked to take forward implementation of the two accepted recommendations and to engage on the remaining recommendations alongside work to develop the NHS People Plan. A response is expected later this year.

A brighter future

We can expect a new central database of NHS director qualifications and history but whether this will make a difference to the application of the FPPT remains to be seen. As for the competency standards for directors, these are fairly well articulated by many NHS employers but performance issues will need to be managed much better, given that the tendency is not to adopt formal performance measures at director level.    

But looking ahead, whether the other remaining five recommendations in the Kark report for assuring leadership are implemented, we will have to wait and see.

That said we can’t help but feel that the way forward will also require a change in culture and leadership behaviours within NHS organisations as well as adoption of fair employment processes for the management of senior managers.

Our content explained

Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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