In response to the Department of Health’s consultation on "Strengthening
corporate accountability in health and social care: consultation on the fit and
proper person regulations" of March 2014 the following is submitted on behalf of
the membership of United Kingdom Homecare Association (UKHCA)
In Annex D of the consultation document there are five questions:
1 - do you think the fit and proper person regulations [Annex C] reflect
the policy aims we have set out ?
Yes: The regulations and the policy aims are congruent but we have
caveats around a variety of issues enumerated below.
No
Maybe
Other Comments
2 - are there any other criteria for deeming a person unfit which should
be included in Schedule 1 in the draft regulations ?
Yes
No
Maybe: The "unfit person test" as specified solely in Schedule 1 does not
reflect the needs of the health and social care sector
Other Comments
a) The "unfit person test" as specified in Schedule 1 is wholly focused upon
bankruptcy and criminality, including exclusions under the Safeguarding
Vulnerable Groups Act 2006. It does not take heed of the exigencies of the
health and social care sector in caring for some of the most vulnerable
members of society: the introductory narrative to the document
"Strengthening corporate accountability in health and social care:
consultation on the fit and proper person regulations" of March 2014
establishes that the health and social care sector has special
considerations of such significance, specifically because of the client group,
that additional measures are required, but the subsequent regulations and
measures do not reflect this.
b) The Care Quality Commission (CQC) is delegated the responsibility for
exercising due diligence in conducting the "unfit person test" and they are
currently conducting consultations on what a 'well led' health and social
care enterprise will look like which reflects the requirement for fit and
proper persons in the health and social care sector. The CQC’s definition of
'well-led' is "by well-led, we mean that the leadership, management and
governance of the organisation assure the delivery of high-quality personcentred care, supports learning and innovation, and promotes an open and
fair culture". This definitional statement does not reflect the ethos of the
"unfit person test" as specified in Schedule 1. The following condition (in
item 3 below) suggests an extra dimension to the Schedule 1
requirements in response to this gap.
c) We are concerned that the regulations do not appear to take account of
the leadership developmental work undertaken by the NHS Leadership
Academy and consider that a useful addition to the Fit-and-Proper test and
Schedule 1 would be the inclusion of the nine key characteristics of health
and social care leadership as defined by the Academy
(http://www.leadershipacademy.nhs.uk/discover/leadershipmodel/leaders
hip-dimensions)
3 - do you have any other comments about the draft regulations ?
Yes: the proposed regulations overlap with other legislation
No
Maybe
Other Comments
a) The combined effect of the "Requirements relating to persons carrying on
or managing a Regulated Activity" item 2A and the Schedule 1 "unfit
person test" is to create a specification of personal behaviour, technical
competence and the exercise of business practices which is expected to
have a positive impact on the quality of care. There is not, however, any
substance around how this expectation will 'work' or how it will create the
'deliverables' that will eliminate the possibility of failed services, failed
providers, market failure, improper conduct or how structurally the
subjective and movable judgments of fitness and propriety can persuade
business leaders to set their sights higher.
b) The new regulations are "expected to have a positive impact on the quality
of care by reducing the risk of there being unfit directors in post who
negatively impact on the safety and quality of care. This will also
strengthen the performance of directors by increasing the incentives on
providers to scrutinise their performance and will enable CQC to take
action against unfit directors including barring them from individual posts"
("Strengthening corporate accountability in health and social care:
consultation on the fit and proper person regulations" DoH March 2014).
Clarity around procedural mechanisms that bridge the presumption that
the regulations will create the environment-of-care promulgated within the
consultative document and the capacity-and-capability of the CQC to
prevent further untoward incidences purely as a consequence of these
regulations would allay some anxiety that 'fine tuning a bad system
creates a finely tuned bad system, not a better system'. Such 'tests' are
rarely an indicator of future performance and some clarity around
proposed methods would prove invaluable.
c) The UKHCA has sympathy with the view of John Adams, Voluntary
Organisations Disability Group general secretary: whilst supporting "the
principle of corporate accountability as an "end", the "means" currently
outlined in the consultation paper are flawed" and that "the policies
outlined in the paper will make it more difficult to recruit charity trustees,
whilst offering little, if any, additional protection, give false assurances to
the public about safety and quality of care" and "add to the regulatory,
administrative and cost burdens for service providers and the regulator,
the Care Quality Commission (CQC)".
d) it is axiomatic that the "Requirements relating to persons carrying on or
managing a Regulated Activity" item 2A, the Schedule 1 "unfit person test"
and the nine key characteristics of health and social care leadership as
defined by the NHS Leadership Academy should apply to the
commissioners of health and social services and their seniors in equal
measure and consequence.
e) The regulations should create a clear requirement for consistency within
the commissioning framework, eliminating discrepancies between localities
that give rise to claims of 'postcode lottery' care.
f) It also follows that the "Requirements relating to persons carrying on or
managing a Regulated Activity" item 2A, the Schedule 1 "unfit person test"
and the nine key characteristics of health and social care leadership as
defined by the NHS Leadership Academy should apply to the inspectors of
services and their seniors in equal measure and consequence.
g) The regulations should create a clear requirement for consistency within
the inspectorate regime, eliminating discrepancies between practitioners
and devolved offices. The track record of inconsistency to-date has proven
to be often disruptive and has introduced discontinuity into the delivery of
care services across inspectorates’ operational boundaries.
h) The UKHCA suggests the following issues could usefully be incorporated
into enhanced Fit-and-Proper and corporate governance regulations:
1. Increasing the power of independent non-executive board
members.
2. Strengthening independent audit arrangements.
3. Developing care-contracts to emphasize health and social care
sector skills at directorial level and for non-executive board
appointments.
4. Defining an optimum Board, governance and fit-and-proper
structure that can meet the exigencies of health and social care
enterprises, particularly if there are charitable subsidiaries or
vice versa. This would provide a useful Key Performance
Indicator.
5. Reinforcing the scrutineer role of non-executive directors and
Trustees so that the inter-dependencies between Boards and
senior managers have an external moderating influence.
i) We are concerned that there are not any criteria within the proposed
regulations to prevent Directors from frustrating the work of ‘frontline
staff’ who are delivering health or social care because of costs or other
eventualities seen as less favourable within the corporate context
j) We are concerned that the proposed regulations do not pay sufficient
recognition to dealing with corporate bodies and focus on individuals
k) We are concerned that there is an excessive amount of paperwork
associated with meeting the requirements of the proposed regulations,
notably around organisations maintaining an audit trail of documents to
satisfy the CQC within the meaning of item (5) page 38
4 - do you agree that breach of the requirement should constitute an
offence ?
Yes: if there are clear rules of engagement that carry the full weight of
the law, transgressions should attract sanctions
No
Maybe
Other Comments
5 - do you have any concerns about the impact of the proposed
regulations on people sharing protected characteristics as listed in the
Equality Act 2010 ?
Yes
No: UKHCA is content with the proposed arrangements within this context
Maybe
Other Comments
Duncan White
United Kingdom Homecare Association
Duncan.white@ukhca.co.uk – 07.827.805.544