SOMERSET PARTNERSHIP NHS FOUNDATION TRUST FIT AND PROPER PERSON REQUIREMENTS COMPLIANCE REPORT. Report to the Trust Board - 22 September 2015

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1 SOMERSET PARTNERSHIP NHS FOUNDATION TRUST FIT AND PROPER PERSON REQUIREMENTS COMPLIANCE REPORT Report to the Trust Board - 22 September 2015 Sponsoring Director: Author: Purpose of the report: Interim Director of Human Resources and Workforce Development Interim Director of Human Resources and Workforce Development/Secretary to the Trust. The purpose of this report is to set out the actions taken to ensure that Director/Associate and Deputy Director level appointments meet the CQC Fit and Proper Persons Regulations, and to set out the process for investigating any concerns about the fitness of Directors. Key Issues and Recommendations: the process for checking compliance with the Fit and Proper Persons requirements is set out in the attached Toolkit which was adopted by the Board in January 2015; a check of all files indicate that all Board members/ Directors/Associate and Deputy Director meet the Fit and Proper Person requirements and compliance has also been confirmed through signed self- declarations and checks against the Insolvency Register and the list of Disqualified Directors; a process for dealing with any concerns about the fitness of a Director is set out in the report; the accountability for ensuring that all Directors/Associate and Deputy Directors and Non- Executive Directors rests with the Chairman. The responsibility for undertaking the checks for employed Directors is delegated to the Director of Workforce and Organisation Development, and for Non- Executive Directors to the Trust Secretary. Fit and Proper Person Requirements Compliance Report September 2015 Public Board - 1 -

2 Actions required by the Board: The Board is asked to accept the assurance that all Directors meet the Fit and Proper Persons requirements and to approve the process for dealing with any concerns raised about the fitness of a Director to undertake their role. Fit and Proper Person Requirements Compliance Report September 2015 Public Board - 2 -

3 SOMERSET PARTNERSHIP NHS FOUNDATION TRUST FIT AND PROPER PERSONS TEST 1. INTRODUCTION 1.1 A report on the Fit and Proper Persons requirements was presented to the January 2015 Board meeting and the Board approved the Fit and Proper Persons Toolkit developed by NHS Providers and NHS Employers. 1.2 The Board also agreed that the Toolkit applied to all Board members, Associate Directors and Deputy Directors. 1.3 The disqualification criteria for Board members are set out in the Trust s Constitution and the criteria have been extended to include the Fit and Proper Person requirements and the need for Board members to submit an annual self -declaration stating that they continue to meet the Fit and Proper Persons requirements. 2. COMPLIANCE 2.1 The Chairman is ultimately responsible for discharging the requirements placed on the Trust to ensure that all Directors meet the fitness test and do not meet any of the unfit criteria. 2.2 The Chairman has delegated the responsibility for providing assurance on: Executive/Associate and Deputy Directors compliance to the Interim Director of Human Resources and Workforce Development (Director of Workforce and Organisation Development from 5 October 2015); Non-Executive Directors compliance to the Secretary to the Trust. 2.3 The Interim Director of Human Resources and Workforce Development and the Secretary to the Trust have conducted a review of the files of all Board members/associate and Deputy Directors to ensure that the relevant checks have been conducted, and that evidence is provided. Where there has been any missing information this is being rectified. 2.4 Satisfactory checks against the Insolvency register and the Disqualified Directors list have also been conducted. Fit and Proper Person Requirements Compliance Report September 2015 Public Board - 3 -

4 2.5 All those to whom the Fit and Proper Persons requirements apply have completed a self-declaration confirming that they have read and understood the Fit and Proper Person Regulations and that they meet the required standards. 2.6 The Chairman therefore provides the Board with assurance that all relevant Directors meet the Fit and Proper Persons requirements. 3. PROCESS FOR DEALING WITH CONCERNS ABOUT THE FITNESS OF DIRECTORS 3.1 The report presented to the January 2015 Board meeting set out the role of the Care Quality Commission, Monitor and noted the actions being taken by the Trust in relation to compliance. 3.2 The report did not, however, outline a specific process to deal with any concerns raised about the fitness of a Director to undertake their role and the way in which the Trust would respond to such a concern. Managing concerns 3.3 Whilst the Trust will make every effort to ensure compliance with the regulations, there is always the possibility that following employment, and regardless of the necessary checks being undertaken, concerns will be raised about an individual or that their compliance status will change. 3.4 The Trust will expect any Director who believes they may no longer meet the requirements of the Fit and Proper Persons Test to declare this immediately. The self- declaration signed by all those to whom this regulation applies makes this responsibility clear. 3.5 However, it is important that there is a process in place to deal with any concerns raised, whether by the individual, a patient, family member, carer or any other third party. Process 3.6 The attached flowchart describes the proposed process to be followed in the event of a concern being raised. 3.7 It is important to note that the process needs to reflect the Trust s willingness to investigate concerns appropriately, but also its desire to ensure that individuals are treated fairly and appropriately. 3.8 This approach ensures that whoever is the subject of the concern there is a defined process to follow 3.9 Any issues identified and upheld in relation to a Director would be dealt with in accordance with the Trust s Disciplinary Policy. For Non- Executive Directors the principles set out in the Trust s Disciplinary Fit and Proper Person Requirements Compliance Report September 2015 Public Board - 4 -

5 Policy should be applied. The Council of Governors approval of the process to be followed for Non-Executive Directors and the Chairman will be obtained at the November 2015 Council of Governors meeting. 4. RECOMMENDATION 4.1 The Board is asked to accept the assurance that all Directors meet the Fit and Proper Persons requirements and to approve the process for dealing with any concerns raised about the fitness of a Director to undertake their role. INTERIM DIRECTOR OF HUMAN RESOURCES AND WORKFORCE DEVELOPMENT Fit and Proper Person Requirements Compliance Report September 2015 Public Board - 5 -

6 Fit and Proper Person Requirements Compliance Report September 2015 Public Board - 6 -

7 Dealing with concerns about Directors in relation to Fit and Proper Persons Regulation In the event that concerns are raised about the suitability of an individual under the Fit and Proper Persons Test the Trust will take appropriate and timely action to investigate and rectify the matter. If it is discovered that the Trust has an unfit Director in post Monitor will be informed immediately. Concern notified to Trust Immediate notification to Chairman and Chief Executive (issues relating to Chief Executive to be notified to Chairman and HR Director, and issues relating to Chairman to be notified to Senior Independent Director and Lead Governor) Initial fact-finding Concern is clearly and demonstrably unsubstantiated Concern is substantiated or requires further investigation A record of the concern, the action taken, and the outcome should be made and kept on file. No further action should be taken. If the matter concerns a Non-Executive Director the Chairman will liaise with the Lead and, and if the matter concerns the Chairman, the SID will liaise with the Lead Governor. Investigation commissioned and consideration given to whether temporary restriction of duties or suspension is necessary. Individual informed. Should the investigation find a case to answer in relation to an Executive Director a hearing will be convened under the Trust Disciplinary/Capability policy. (Cases relating to NEDS will also be managed in line with the principles set out in the Disciplinary Policy) Should the investigation find no case to answer a record of the concern and investigation should be kept on file. The individual should be informed and no further action taken. If action is taken against an Executive Director as an outcome of the hearing because of the failure to comply with FPPT then the right to appeal will apply in accordance with existing Trust policy. In relation to Non-Executive Directors the outcome of the hearing will be shared with the Council of Governors at a Confidential Council of Governors meeting and the Council of Governors have the right to remove the Non-Executive Director/Chairman. The criteria for removing Non-Executive Directors/Chairman are set out in the Trust s Constitution. Fit and Proper Person Requirements Compliance Report September 2015 Public Board - 7 -

8 Links to Strategic Themes: Identify to which of the Somerset Partnership NHS Foundation Trust strategic themes this report relates by including a cross behind the relevant theme(s) Quality and Safety X Viability and Growth Service Delivery Innovation Integration Culture and People X Links to the Assurance Framework: Links to the NHS Constitution and Trust Values: Identify to which risks of the Assurance Framework this report relates the report does not relate to any specific risks on the Assurance Framework. Identify the Values to which the issues raised in this report relate by including a cross behind the relevant value(s) Working together for patients X Compassion X Respect and dignity Improving lives Commitment to quality of care X Everyone counts X Links to CQC Domains: Identify which of the CQC domains are covered by this report by including a cross behind the relevant domain(s) Is it safe? X Is it caring? X Is it well-led? X Is it effective? Is it responsive to people s needs? Fit and Proper Person Requirements Compliance Report September 2015 Public Board - 8 -

9 egal or statutory implications/ requirements: Public/Staff Involvement History: Previous Consideration: NHS Act 2006; Health and Social Care Act 2012; Health and Social Care Act 2008 (Regulated Activities) Regulations CQC Regulation Fit and Proper Persons staff have not been involved in the production of this report. a report was presented to the January 2015 Board meeting. Fit and Proper Person Requirements Compliance Report September 2015 Public Board - 9 -

10 FIT AND PROPER PERSON COMPLIANCE CHECKLIST FOR DIRECTORS, ASSOCIATE DIRECTORS AND DEPUTY DIRECTORS APPOINTMENTS Standard Assurance process Evidence Checks Completed (please tick the relevant boxes or if not appropriate please indicate the reason) Providers should make every effort to ensure that all available information is sought to confirm that the individual is of good character as defined in Schedule 4, Part 2 of the regulations. (Sch.4, Part 2: Whether the person has been convicted in the United Kingdom of any offence or been convicted elsewhere of any offence which, if committed in any part of the United Kingdom, would constitute an offence. Whether the person has been erased, removed or struck-off a register of professionals maintained by a regulator of health care or social work professionals.) Employment checks in accordance with NHS Employment Check Standards issued by NHS Employers including: two references, one of which must be most recent employer qualification and professional registration checks References. Outcome of other preemployment checks. DBS checks where appropriate. Register search results. List of referees and sources of assurance for FOIA purposes. References Qualification and Professional registration checks Right to work checks Proof of identity checks right to work checks occupational health clenrance Fit and Proper Person Requirements Compliance Report Toolkit for new appointments September 2015 Public Board - 1 -

11 proof of identity checks DBS checks occupational health clearance search of insolvency and bankruptcy register DBS checks (where appropriate) search of insolvency and bankruptcy register search of disqualified directors register search of disqualified directors register Where the Trust deems the individual suitable despite not meeting the characteristics outlined in Schedule 4, Part 2 of these regulations, the reasons should be recorded and information about the decision should be made available to those that need to be aware. Report and debate at the Nominations Committee(s). Report and recommendation at the Council of Governors (for NEDs) or the Board of Directors (for EDs). Decisions and reasons for decisions recorded in minutes. External advice sought as necessary Record that due process was followed for FOIA purposes. Not Applicable If applicable, please complete the sections below: Considered by the Council of Governors Remuneration and Nomination Committee/the Board of Directors Nomination Committee at its meeting held on.. Fit and Proper Person Requirements Compliance Report Toolkit for new appointments September 2015 Public Board - 2 -

12 Approved by the Council of Governors/Board of Directors at its meeting held on. Where specific qualifications are deemed by the Trust as necessary for a role, the Trust must make this clear and should only employ those individuals that meet the required specification, including any requirements to be registered with a professional regulator. Requirements included within the job description for all relevant posts. Checked as part of the preemployment checks and references on qualifications. Person specification Recruitment policy and procedure Not Applicable If applicable please confirm what the specific qualifications were and tick the box below to confirm that the appointed candidate met the requirements. The Trust should have appropriate processes for assessing and checking that the individual holds the required qualifications and has the competence, skills and experience required, (which may include appropriate communication and leaderships skills and a caring and compassionate nature), to Employment checks include a candidate s qualifications and employment references. Recruitment processes include qualitative assessment and values-based questions. Decisions and reasons for decisions recorded in minutes. Recruitment policy and procedure Values-based questions Minutes of Council of Governors. Minutes of Board of Directors. To be completed by the Chairman of the Interview Panel. Please confirm that the recruitment process was based on a qualitative assessment and values based questions by ticking the box below. Fit and Proper Person Requirements Compliance Report Toolkit for new appointments September 2015 Public Board - 3 -

13 undertake the role; these should be followed in all cases and relevant records kept. N.B. While this provision most obviously applies to Executive Director appointments in terms of qualifications, skills and experience will be relevant to NED appointments. In addition to the above requirement, the Trust may consider that an individual can be appointed to a role based on their qualifications, skills and experience with the expectation that they will develop specific competence to undertake the role within a specified timeframe. Discussions and recommendations by the Nominations Committee(s). Discussion and decision at Board of Directors or Council of Governors meeting. Reports, discussion and recommendations recorded in minutes of meetings. Follow-up as part of continuing review and appraisal. Minutes of Committee, Board and or Council of Governors meetings. NED appraisal framework. NED competence framework. Notes of ED appraisals. To be completed by the Chairman of the Interview Panel. Not applicable as the candidate meet all the required criteria. If applicable, please confirm what the specific competences are and the timeframe agreed to develop the competence(s). When appointing relevant individuals the Trust has Self-declaration subject to clearance by occupational Occupational health clearance. Please confirm by ticking the box that Fit and Proper Person Requirements Compliance Report Toolkit for new appointments September 2015 Public Board - 4 -

14 processes for considering a person s physical and mental health in line with the requirements of the role, all subject to equalities and employment legislation and to due process. Wherever possible, reasonable adjustments are made in order that an individual can carry out the role. The Trust has processes in place to assure itself that the individual has not been at any time responsible for, privy to, contributed to, or facilitated, any serious misconduct or mismanagement in the carrying on of a regulated activity; this includes investigating any allegation of such potential behaviour. Where the individual is professionally qualified, it may include fitness to practise proceedings and professional disciplinary cases. health as part of the preemployment process. Self declaration of adjustments required. NHS Employment Check Standards. Board/Council of Governors decision. Consequences of false or inaccurate or incomplete information included in recruitment packs. Checks set out in 1. Above i.e. Employment checks in accordance with NHS Employers pre-employment check standards including: self-declarations of fitness including explanation of past conduct/character issues where appropriate Minutes of Board meeting/council of Governors meeting. NED Recruitment Information pack. Reference Request for ED/NED. occupational health clearance has been received. Please confirm whether adjustments have been identified and that the adjustments have been put in place by ticking the box. Please confirm that the employment checks and the self declaration have not identified any serious misconduct issues as set out in the left hand column, by ticking the box. Fit and Proper Person Requirements Compliance Report Toolkit for new appointments September 2015 Public Board - 5 -

15 ( Regulated activity means activities set out in Schedule 1, Regulated Activities, of The Health and Social Care Act 2008 (Regulated Activities) Regulations Schedule 1 covers the provision of: personal care; accommodation for persons who require nursing or personal care; accommodation for persons who require treatment for substance misuse; treatment of disease, disorder or injury; assessment or medical treatment for persons detained under the 1983 Act; surgical procedures; diagnostic and screening procedures; management of supply of blood and blood derived products etc.; transport services, triage and medical advice provided remotely; maternity and midwifery by candidates; two references, one of which must be most recent employer; qualification and professional registration checks; right to work checks; proof of identity checks; occupational health clearance; DBS checks (where appropriate); search of insolvency and bankruptcy register; search of disqualified directors register. Included in reference requests. Fit and Proper Person Requirements Compliance Report Toolkit for new appointments September 2015 Public Board - 6 -

16 services; termination of pregnancies; services in slimming clinics; nursing care; family planning services. Responsible for, contributed to or facilitated means that there is evidence that a person has intentionally or through neglect behaved in a manner which would be considered to be or would have led to serious misconduct or mismanagement. Privy to means that there is evidence that a person was aware of serious misconduct or mismanagement but did not take the appropriate action to ensure it was addressed. Serious misconduct or mismanagement means behaviour that would constitute a breach of any legislation/enactment Care Quality Commission deems relevant to meeting these regulations or their component parts. ) Fit and Proper Person Requirements Compliance Report Toolkit for new appointments September 2015 Public Board - 7 -

17 N.B. This provision applies equally to executives and NEDs. The Trust must not appoint any individual who has been responsible for, privy to, contributed to, or facilitated, any serious misconduct or mismanagement (whether lawful or not) in the carrying on of a regulated activity; this includes investigating any allegation of such potential behaviour. Where the individual is professionally qualified, it may include fitness to practise proceedings and professional disciplinary cases. Consequences of false, inaccurate or incomplete information included in recruitment packs. Core HR policies for appointments and remuneration. Checks set out in Section 1 above. Included in reference requests. NED and ED Recruitment Information packs. Core HR policies. Reference Request for ED/NED. Please confirm that the employment checks, including references, have not identified any serious misconduct or mismanagement issues as set out in the left hand column, by ticking the box below. N.B. The Care Quality Commission accepts that trusts will use reasonable endeavours in this instance. The existence of a compromise agreement does not indemnify the new employer and trusts will need to ensure that their core HR Fit and Proper Person Requirements Compliance Report Toolkit for new appointments September 2015 Public Board - 8 -

18 policies address their approach to compromise agreements. Only individuals who will be acting in a role that falls within the definition of a regulated activity as defined by the Safeguarding Vulnerable Groups Act 2006 will be eligible for a check by the Disclosure and Barring Service (DBS). DBS checks are undertaken for all posts. DBS policy. DBS checks. Please confirm that the DBS check has been undertaken by ticking the box. N.B. The Care Quality Commission recognises that it may not always be possible for trusts to access a DBS check as an individual may not be eligible. As part of the recruitment/appointment process, trusts should establish whether the individual is on a relevant DBS list. DBS checks will be undertaken for each vacancy arising. DBS policy. Please confirm that the DBS check has been undertaken by ticking the box. Fit and Proper Person Requirements Compliance Report Toolkit for new appointments September 2015 Public Board - 9 -

19 FIT AND PROPER PERSON COMPLIANCE CHECKLIST FOR DIRECTORS, ASSOCIATE DIRECTORS AND DEPUTY DIRECTORS ONGOING COMPLIANCE Standard Assurance process Evidence Checks Completed (please tick the relevant boxes or if not appropriate please indicate the reason) Continuing provisions 12. The fitness of directors is regularly reviewed by the Trust to ensure that they remain fit for the role they are in; the Trust should determine how often fitness must be reviewed based on the assessed risk to business delivery and/or the service users/patients posed by the individual and/or role. Assessment of continued fitness to be undertaken each year as part of appraisal process. Checks of insolvency and bankruptcy register and register of disqualified directors to be undertaken each year as part of the appraisal process. Board/Council of Governors reviews checks and agrees the outcome. Continual to be assessed as part of appraisal/ supervision process. Include annual self declaration as part of the existing assurance processes. Board/Council of Governors minutes record that process has been followed. Fit and Proper Person Requirements Compliance Report Toolkit September 2015 Public Board - 1 -

20 13. If the Trust discovers information that suggests an individual is not of good character after they have been appointed to a role, the Trust must take appropriate and timely action to investigate and rectify the matter. The Trust has arrangements in place to respond to concerns about a person s fitness after they are appointed to a role, identified by itself or others, and these are adhered to. 14. The Trust investigates, in a timely manner, any concerns about a person s fitness or ability to carry out their duties, and where concerns are substantiated, proportionate, timely action is taken; the Trust must demonstrate due diligence in all actions. 15. Where a person s fitness to carry out their role is being investigated, appropriate interim measures may be required to minimise any risk to service users. Core HR policies provides for such investigations. Revised contracts allow for termination in the event of noncompliance with regulations and other requirements. Contracts (for EDs and directorequivalents) and agreements (for NEDs) incorporate maintenance of fitness as a contractual requirement. Core HR policies include the necessary provisions. Action taken and recorded as required. Core HR policies. Core HR polices. Contracts of employment (for EDs and directorequivalents). Service agreements or equivalent (for NEDs). Core HR policies. Managerial action taken to backfill posts as necessary.

21 16. The Trust informs others as appropriate about concerns/findings relating to a person s fitness; for example, professional regulators, Care Quality Commission and other relevant bodies, and supports any related enquiries/investigations carried out by others. Core HR policies. Referrals made to other agencies if necessary. In the table above, unless the contrary is stated or the context otherwise requires, ED means executive directors and director equivalent Fit and Proper Person Requirements Compliance Report Toolkit September 2015 Public Board - 3 -

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