HRPOL44 Fit and Proper Persons Policy by Provide Community

Fit and Proper Persons Policy and Procedure

Ratified by: People, Culture and Remuneration Committee

Date ratified: 24/05/2022

Job Title of author: Joanne Dickman, HR Business Partner

Reviewed by Committee or Expert Group Staff Partnership Forum and People and Culture Steering Group

Equality Impact Assessed by: Joanne Dickman, HR Business Partner

1. Introduction

commitment to quality and safety must be reflected in the work and conduct of all its employees.

1.2 This policy lays out the requirements related to Regulation 5 of the Health & Social Care Act - Fit & Proper Persons (FPPR).

1.3 Regulation 5 recognises that individuals who have authority in organisations that deliver care are responsible for the overall quality and safety of that care. For the purpose of these regulations, these individuals are board directors, board members and individuals who perform the functions equivalent to the functions of a board director and member. This regulation is about ensuring that registered providers have individuals who are fit and proper to carry out the important role of Director to make sure that providers meet the existing requirements of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

2. Scope

2.1 The Fit and Proper Person check process will need to be followed by all Provide Group Companies delivering health and social care services in all Board appointments, including non-executive appointments, in order to give adequate assurance to the Board and the Care Quality Commission (CQC).

2.2 The regulations state that providers must not appoint a person to a Board post unless they are a fit and proper person. Providers must also ensure that during the course of their employment, the person is not unfit. The FPPR applies to all Directors and “equivalents”. The FPPR will apply regardless of a Director’s voting rights on a Board, and will apply to permanent, interim & associate positions (providing they are members of the Board). The Regulations will not therefore apply to those staff who have “Assistant or Associate Director” in their job title but who are not members of the Board.

For the sake of clarity, the Provide CIC positions to which these regulations currently apply are the company directors, who are:

• Chair of the Board

• Non-Executive Directors

• Group Chief Executive

• Group Chief Finance Officer

• CEO, Health and Chief Nurse

• Group Chief People Officer

• Group Chief Commercial Officer

and those other directors who attend Board meetings. These currently are:

• Chair of the Council of Governors

• Director, Delivery and Partnerships

• Chief Medical Director

• Director of Nursing and Allied Health Professionals

This list will be kept under regular review.

3. Key Principles

3.1 To be a fit and proper person, a person must meet all of the following:

• be of good character1;

• have the qualifications, skills and experience necessary for the office or position2;

• be capable by reason of their health of properly performing tasks intrinsic to their office or position;

• not have been responsible for, privy to, contributed to or facilitated any misconduct or mismanagement (whether unlawful or not) in the course of discharging functions relating to their office or position previously3

• Not be prohibited from holding the office or position

3.2 A person will be deemed unfit if they have/are:

• within the preceding 5 years been convicted in the UK of any criminal offence (or elsewhere if committed in the UK would be a criminal offence), and;

• been sentenced to a period of imprisonment (suspended or not), of not less than 3 months (without the option of a fine), and;

• on appeal the conviction has not been quashed nor the sentence reduced to a sentence other than a sentence of imprisonment, or sentence of imprisonment of less than 3 months (suspended or not);

• an undischarged bankrupt;

• is subject to bankruptcy restrictions;

• has made a composition or arrangement with creditors and has not been discharged in respect of it;

1 This requirement is not absolute. However, in determining whether a Director is “of good character”, the FPPR state that consideration should be given as to whether:

• the person has been convicted in the UK of any offence; or

• the person has been erased, removed or struck-off a register of professionals maintained by a regulator of health care or social work professionals

2 Directors need to have the qualifications, competence, skills and experience which are necessary for the work to be performed by them. This requirement is not absolute, and involves an element of judgement. Although the FPPR make no differentiation between “qualifications”, “competence”, “skills”, and “experience”, the CQC guidance makes it clear that providers may consider appointing an individual 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

3 This applies to any previous misconduct or incompetence in a previous role for a service provider, even if the individual was working in a more junior capacity at that time (or working outside England). Again, judgement is required, though the CQC guidance provides definitions of “Serious misconduct or mismanagement”, “Responsible for, contributed to or facilitated”, and “Privy to”, to assist such judgements

• is included in the children’s or adults’ barred list under Section 2 Safeguarding Vulnerable Groups Act 2006 (and equivalent in Scotland/Northern Ireland)

• displayed persistent behaviours that contravene the Dignity at Work Policy

4. Key Responsibilities

4.1 Employees

Employees in roles for whom this policy applies to, are expected to comply with the requirements of this policy

4.2 Managers

Managers are responsible for raising awareness of this policy within their own business units, where appropriate and will highlight changes to the post holders, whose role falls within the remit of this policy. In addition, they are expected to comply with the requirements of this policy

4.3 Directors

All Directors are responsible for identifying and ensuring the development of documents relevant to their area of responsibility. The Group Chief People Officer is accountable to the Group Chief Executive and the Provide Board for ensuring this policy is implemented and associated documents become active documents within the Provide CIC Group.

Directors will ensure that this policy is appropriately consulted upon and that all resource implications are highlighted and funding identified. They will ensure that their Senior Managers are informed of progress.

4.4

Group Chief Executive

The Group Chief Executive has overall responsibility for the strategic and operational management of Provide which includes ensuring that this policy & associated documents comply with all legal and statutory requirements.

4.5

The Provide CIC Board

The Provide Board is responsible for setting the strategic context in which organisational documents are developed, and for ensuring the formal review and approval of documents takes place.

In addition, the Chair of the Board has responsibility to ensure that the Fit & Proper Persons Regulations (FPPR) are adhered to for both new and current appointments. Providers must take necessary and proportionate action to ensure the office/position is held by an individual who meets the requirements, and must also inform the relevant regulator (if appropriate).

5. Procedure / Implementation

5.1 Provide currently has a clear recruitment & selection policy (HRPOL11 Recruitment and Selection Policy) which lays out the policy and the mandatory employment checks for all Provide recruits, in accordance with the NHS Employment Check Standards. The requirements stipulated in this policy which are relevant to the FPPR are:

• person specifications must include professional qualifications or registration required for the role

• requirement for accurate and comprehensive records of recruitment decisions

• two references, one of which must be most recentemployer (see Appendix 4);

• qualification and professional registration checks;

• right to work checks;

• proof of identity checks;

• occupational health clearance;

• DBS checks (where appropriate)

5.2 Existing processes for appointing Board members (which incorporates preemployment checks and processes outlined above) will be followed. In addition to this, Provide has a specific process for its Board members, coordinated by the Human Resources department, and to involve the 5 steps laid out in Appendix 1.

5.3 A new Board Member will be asked to sign a ‘Fit & Proper Person’ Declaration, please see Appendix 2 It is recommended that the declaration forms part of the application process for new Directors and that this be then re-affirmed on appointment and annually thereafter at the same time as the annual Declaration of Interests process. The Declaration of Interests Form can be seen at Appendix 3

5.4 If an individual is unable to sign the declaration, the reasons should be discussed with the Chair of the Board (For Chief Officers, the discussion should involve the Group Chief Executive and for the Chair the discussion will be with the Senior Independent Director). This discussion may result in the declaration being amended to reflect the specific circumstances of that individual. For example, they may have been convicted in the UK of a minor offence, which would prevent them from the signing the declaration, but which, in the judgement of the Chair, would not mean that they were not of “good character”. In this case, the declaration form would be amended to enable the individual to sign it, and a record would be kept (by the Company Secretary) of the reasons why the declaration form was amended.

5.5 To ensure that the organisation meets the regulations, it is expected to undertake an enhanced DBS Check for eligible directors to check that they are on the children’s and/or adults safeguarding barred list where they meet the eligibility criteria. In addition, where a director meets the eligibility criteria Provide 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.

5.6 The Human Resources Team will undertake “due diligence” checks for each Director, to support the declarations, to determine whether the individual:

• is an undischarged bankrupt

• has had sequestration awarded (which has not been discharged) in respect of their estate

• is the subject of a bankruptcy restrictions order, or an interim bankruptcy restrictions order, or an order to like effect made in Scotland or Northern Ireland

• is a person to whom a moratorium period under a debt relief order applies (under Part VIIA (debt relief orders) of the Insolvency Act 1986(b))

• has made a composition or arrangement with, or granted a trust deed for, creditors (and not been discharged in respect of it)

• Is not prohibited, by or under any enactment, from holding their office or position, or from carrying on any regulated activities

• has been erased, removed or struck-off a register of professionals maintained by a regulator of health care or social work professionals

• has 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 (for this requirement, Provide will assure that no evidence has been found of this)

Such due diligence checking should also incorporate any specific qualification requirements for Executive roles (e.g. that the Group Chief People Officer should be a member of the Chartered Institute of Personnel and Development), and will include (but not be limited to) publicly available registers, such as:

• the Individual Insolvency Register (IIR)

• the Companies House database of disqualified directors (under the Company Directors Disqualification Act 1986)

• the Insolvency Service's register of Directors they got disqualified

• the List of Registered Medical Practitioners

• Nursing and Midwifery Council (NMC) register

• Other professional registers e.g. HCPC

• Publicly available investigation reports of failings within health and social care provision

Such checks will be undertaken on appointment, & annually thereafter. Ad-hoc checks will also be undertaken if any information is received that warrants such checks being made. If these checks identify any issues of concern in relation to the FPPR, the Company Secretary will raise these concerns with the Chair of the Board, who will in turn discuss the concerns with the individual, and instigate appropriate action.

5.7 The annual performance development review (PDR) process for all Board members should incorporate a formal review and confirmation that the individual:

• continues to have the qualifications, competence, skills and experience which are necessary for the work to be performed by them; and

• continues to be able by reason of their health (after reasonable adjustments are made) of properly performing tasks which are intrinsic to the work for which they are employed

These aspects should be part of the formal documentation for such PDRs.

Obviously, this step is not intended to prevent any changes in an individual’s circumstances being reviewed and responded to at the time such changes occur (i.e. relevant action should not be deferred until an individual’s annual PDR).

5.8 The contracts of employment/agreements for all Board positions (and the standard contract for any new Chief Officer appointments) should be reviewed, and if necessary amended, to take into account the fact that an individual cannot continue within the role should they meet any of the criteria for being “unfit” (as listed earlier).

5.9 The process described should be applied to all existing post-holders, as well as to new Board appointments.

6. Monitoring and Review

6.1 This policy will be reviewed at least every 3 years in line with the Policy for the Management of Procedural Documents, or more frequently in line with any requirements relating from legislative changes.

6.2 Review will be undertaken by a CIPD registered member of the HR Department and monitoring will be conducted in respect of policy outcomes. The need for improvement or clarification may be identified as lessons learnt, through using the process and where appropriate amendments will be made.

Appendix 1: Diagrammatic representation of proposed process for Board Members in addition to current pre-employment checks

Appendix 2: ‘Fit and Proper Person’ Declaration

In accordance with The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which details the requirement that Directors (or equivalent) of health service bodies be “fit and proper persons”, I hereby declare that:

(a) I have the qualifications, competence, skills and experience which are necessary for the relevant office or position or the work for which I am employed.

(b) I am able by reason of my health (after reasonable adjustments are made) of properly performing tasks which are intrinsic to the office or position for which I am appointed, or to the work for which I am employed.

(c) I have 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 activity4 or providing a service elsewhere which, if provided in England, would be a regulated activity.

(d) I am not “unfit”. In this regard:

• I am not an undischarged bankrupt;

• I have not had sequestration awarded (which has not been discharged) in respect of my estate;

• I am not the subject of a bankruptcy restrictions order, or an interim bankruptcy restrictions order, or an order to like effect made in Scotland or Northern Ireland;

• I am not a person to whom a moratorium period under a debt relief order applies (under Part VIIA (debt relief orders) of the Insolvency Act 1986(b));

• I have not made a composition or arrangement with, or granted a trust deed for, creditors (and not been discharged in respect of it);

• I am not included in the children’s barred list or the adults‟ barred list, maintained under section 2 of the Safeguarding Vulnerable Groups Act 2006, or in any corresponding list maintained under an equivalent enactment in force in Scotland or Northern Ireland;

• I am not prohibited, by or under any enactment, from holding my office or position, or from carrying on any regulated activities5

(e) I am of “good character”. In this regard:

• I have not been convicted in the UK of any offence, or been convicted elsewhere of any offence which, if committed in any part of the UK, would constitute an offence;

• I have not been erased, removed or struck-off a register of professionals maintained by a regulator of health care or social work professionals.

(f) I will act with honesty and integrity to ensure that I am not in contravention of The Bribery Act 2010, as described in the organisation’s Anti-Crime Policy.

1 Regulated activities are listed in Schedule 1 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. They are: ‘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 Mental Health Act 1983’; ‘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 services’; ‘Termination of pregnancies’; ‘Services in slimming clinics’; ‘Nursing care’; and ‘Family planning services’. Any provider carrying on any of these activities in England must register with the Care Quality Commission. 2 (as 4)

Name: Signed:

Name:

Appendix 3: Declaration of Interest Form

DECLARATION OF INTERESTS FORM PROVIDE CIC AND GROUP COMPANIES

Signed:

Date:

For the purposes of sections 177 and 182 of the Companies Act 2006, I hereby declare that:

• I am interested in the following transactions or arrangements and that the nature of my extent and interest is as described below.

I also confirm that I will act with honesty and integrity to ensure that I am not in contravention of The Bribery Act 2010, as described in the organisation’s Anti-Crime Policy.

Item

Signed:

NOTES:

Part 10 of the 2006 Act codifies directors' duties. The 2006 Act divides the duty of directors to declare their interests in transactions and arrangements into two provisions:

(a) Section 177 relates specifically to directors declaring their interests in transactions or arrangements, which are proposed but have not yet been entered into by the company.

Directors must declare to the other directors the nature and extent of any interest, direct or indirect in a proposed transaction or arrangement with the company. The director need not be a party to the transaction for the duty to apply. An interest of another person in a contract with the company may require the director to make a disclosure under this duty, if that other person's interest amounts to a direct or indirect interest on the part of a director. An indirect interest is not defined, but it would seem prudent for directors to consider, among other things, the interests of their connected persons.

Such declarations must be made before the company enters into the transaction or arrangement. Where a declaration of interest proves to be, or becomes inaccurate or incomplete, a further declaration must be made. However, this is only necessary if the company has not yet entered into the transaction or arrangement at the time the director becomes aware of the inaccuracy or incompleteness of the earlier declaration (or ought reasonably to have become so aware). No declaration is required where the director is not aware of his interest or where the director is not aware of the transaction or arrangement in question - for these purposes directors are treated as being aware of matters of which they ought reasonably to be aware. It would therefore be prudent for directors to do some due diligence into the interests of their connected persons.

(b) Section 182 deals with declaration of interests in relation to existing transactions or arrangements that the company has already entered into.

Under Section 182(1), a director must declare to the other directors the nature and extent of his direct or indirect interest in an existing transaction or arrangement entered into by the company (such as an interest in a transaction entered into by the company before he became a director, or where the director has failed to comply with section 177 before the company entered into a transaction, or where the director has acquired an interest after the company has entered into the transaction). Section 182 does not require a declaration of an interest of which the director is unaware or where the director is unaware of the transaction or arrangement in question - for these purposes, a director is treated as being aware of matters of which he ought reasonably to be aware if his interest cannot reasonably be regarded as likely to give rise to a conflict of interest; if the other directors are already aware of it; or if it concerns the terms of his service contract that have been (or are to be) considered at a board meeting or board committee.

Appendix 4: Reference Form – Board Appointments

The person named below has received a conditional offer to become a member of the Provide CIC Board. In anticipation of the Kark Review recommendations being fully accepted we would be grateful if you would answer the questions below as fully as possible to give assurance that this person is a Fit & Proper Person to hold a Board level position.

Please be aware this reference will form part of the material to be assessed by the CQC in its well led review and will lead to the referral of the director signing off the reference for Serious Misconduct where there is evidence of deliberate concealment of relevant information or dishonesty.

Details of the person to whom a conditional offer has been made

Name:

Current or Most Recent Job Title:

Current or most recent NHS Pay Band, Salary, Grade Step and Spine Point (if Applicable):

Employment / Appointment Dates:

Reason for Leaving:

National Insurance Number or Date of Birth: (for the purposes of fraud prevention)

Are the details above correct?

Yes ☐ No ☐ (if no please state the correct details below)

Please briefly outline the Job Role and essential Job Functions undertaken by the person.

Please state any Learning & Development

Completed by the person.

If you have any 360 degree assessments related to the person please could you share these with us?

Have you had any concerns about the individual as not being a Fit and Proper Person to act as a director?

Sickness Absence

☐ I attach 360 degree assessment dated....

☐ There are no 360 degree assessments available

Yes ☐ No ☐

If yes, please outline the basis for these concerns and state how they were resolved.

How many days sickness absence has this person had over the last two years?

Over How many episodes?

Conduct

Are there any disciplinary warnings on this person’s record?

☐ Yes ☐ No

Is this person currently under investigation relating to conduct? ☐ Yes ☐ No

Is there anything that would cause you to believe that the person had engaged in Serious Misconduct, defined in the Kark Review as including:

• Criminal convictions for offences leading to a sentence of imprisonment or incompatible with service in the NHS;

• Dishonesty;

• Deliberate bullying;

• Deliberate discrimination, harassment or victimisation;

• Sexual harassment;

• Victimisation or knowingly allowing the victimisation of: whistleblowers; those raising concerns with the Freedom to Speak Up Guardian; or those complying with the duty of candour;

• Causing, facilitating, colluding in, or requiring any staff member to fail to comply with the duty of candour including by means of a settlement or confidentiality agreement;

• Causing, facilitating or colluding in the reckless mismanagement of an organisation resulting in the compromise of patient safety;

• Falsification, concealment or suppression of records, data or other information which is required to be provided to any other person or organisation;

• Encouraging, facilitating or colluding in the falsification, concealment or suppression of records, data or other information which is required to be provided to any other person or organisation;

• Encouraging, facilitating, or colluding in the provision of false or misleading records, data or other information which is required to be provided to any other person or organisation;

• Without reasonable excuse failing to provide records, data, information or evidence to legitimate statutory or government directed inquiries, reviews or investigations;

• Without reasonable excuse failure to provide records, data, information or evidence to the CQC or NHSI when requested to do so.

Yes

If yes please give brief details below

Complaints Are there any outstanding or upheld complaints against the person including Grievances, Freedom to Speak Up or complaints under any other policy or procedure e.g. Equal Opportunities? ☐ Yes

Other

Is there anything that would prevent you from re-employing or appointing the person in the future?

☐ Yes

If yes, please give details below.

Is there any other information about this person’s fitness and propriety relevant to the Fit & Proper Person’s Test? ☐ Yes

If yes, please provide details below.

Referee Details

Your Name:

Your Job Title:

Capacity in which you know the Employee:

Your Contact Telephone Number:

Your email address:

Signature: ……………………………………….

Date: ………………………………….

If this reference has not been completed by a Board Director, please ensure the reference is countersigned below.

Signature of Board Director: …………………………………………………………….

PRINT NAME:

Date: ………………………………………………………………………………………….

Job/Role Title: ………………………………………………………………………………

Appendix 5: Equality Impact Assessments:

Framework and Outline Briefing Notes

Attached is a framework, customised to Provide and some short advisory notes on an approach on carrying out Equality Impact Assessments (EIAs) at Provide.

Briefings are being arranged to explore undertaking such assessments in practice, using ‘live’ and relevant case studies.

EQUALITY IMPACT ASSESSMENT TEMPLATE: Stage

One: ‘Screening’

Name of project/policy/strategy (hereafter referred to as “initiative”):

Fit & Proper Person Policy

Provide a brief summary (bullet points) of the aims of the initiative and main activities:

Outlines the policy and procedure for ensuring adequate assurance is gained that Board Members meet the criteria set out in regulation in regard to being a fit & proper person.as to the fit.

Project/Policy Manager: HR Business Partner

Date: February 2022

This stage establishes whether a proposed initiative will have an impact from an equality perspective on any particular group of people or community – i.e. on the grounds of race (incl. religion/faith), gender (incl. sexual orientation), age, disability, or whether it is “equality neutral” (i.e. have no effect either positive or negative). In the case of gender, consider whether men and women are affected differently.

Q1. Who will benefit from this initiative? Is there likely to be a positive impact on specific groups/communities (whether or not they are the intended beneficiaries), and if so, how? Or is it clear at this stage that it will be equality “neutral”? i.e. will have no particular effect on any group.

The policy sets out a transparent process for undertaking Fit & Proper Person checks for all Board Members to ensure that the required regulations are met. This supports an all- inclusive approach that reduces any potential bias. Therefore, it is clear it will be equality “neutral”.

Q2. Is there likely to be an adverse impact on one or more minority/under-represented or community groups as a result of this initiative? If so, who may be affected and why? Or is it clear at this stage that it will be equality “neutral”?

Neutral

Q3. Is the impact of the initiative – whether positive or negative - significant enough to warrant a more detailed assessment (Stage 2 – see guidance)? If not, will there be monitoring and review to assess the impact over a period time? Briefly (bullet points) give reasons for your answer and any steps you are taking to address particular issues, including any consultation with staff or external groups/agencies.

N/A

Review date: February 2024