Recommendation 85

Executive or non-executive director guilty of serious failure

Accepted
Monitor and the Care Quality Commission should produce guidance to NHS and Foundation Trusts on procedures to be followed in the event of an executive or non-executive director being found to have been guilty of serious failure in the performance of his or her office, and  in particular with regard to the need to have regard to the public interest in protection of patients and maintenance of confidence in the NHS and the healthcare system.

In cases where a director was deemed by the Care Quality Commission to be unfit, the Care Quality Commission would be able to insist on their removal by placing a condition on the provider’s registration. If the provider then failed to remove the director that breach of the registration condition would be an offence for which the provider would be liable to prosecution.

The Care Quality Commission will publish guidance setting out how the process will work, and how it will co-operate with Monitor and the NHS Trust Development Authority .

Under the single failure regime, Monitor and the NHS Trust Development Authority would be able to use their existing powers to enforce fit and proper persons requirements (such as the removal of directors) on licence holders and NHS trusts.

Update

The Care Quality Commission is taking forward the development of a ‘fit and proper persons’ test for board-level leaders in the organisations registered with it, whether in the public, private or voluntary sectors. The fit and proper person test includes ‘service misconduct’ as a ground of unfitness.

In cases where a Director was deemed by the Care Quality Commission to be unfit, the Care Quality Commission would be able to place a condition on the provider’s registration. If the provider failed to demonstrate the director’s fitness, the resultant breach of the registration condition would create an offence for which the provider would be liable to prosecution. The Care Quality Commission published guidance on the duty of candour and fit and proper person requirement for NHS bodies in November 2014.