The Care Quality Commission will have to adopt a “learn by doing” approach when enforcing the fit and proper test of healthcare leaders, its chief executive has admitted.
Just over a month before the new requirements comes into force, David Behan told the CQC board meeting this last week that they would not be “straightforward” to implement, especially in “difficult cases”.
While the watchdog’s main role is to check providers have sound procedures for appointing competent directors, it could become drawn into decisions, leading to directors removal from post, papers presented to the board indicate.
“There is always a possibility that there is a sudden and catastrophic failure of care and there will be attention on the role of the board directors,” the papers said.
“The expectation may well be raised that the CQC takes enforcement action that leads to the trust removing an individual director.”
Such decisions would be made by internal CQC panels, chaired by the chief inspector of hospitals.
Mr Behan told the board that there were “very challenging and awkward” aspects of the fit and proper person regulations that lurked in its “nooks and crannies”.
“I think we need to be ready for this,” he added.
“We will get individual cases referred to us of a whistleblower or somebody of concern raising issues in relation to person x, y, and z that’s either been appointed or been on the board for a long time.
“I think there’ll be challenges to people that have been in post, have not been in work or have been working in other sectors that have come back.”
He said the CQC would “learn from those cases” rather than “think through all potential circumstances that will arise” and allow for “every single contingency”, which he said was “impossible”.
Two non-executive directors directly questioned the CQC’s readiness for the regulations.
Sir Robert Francis asked: “Are we – is the system – ready for this?
“Were I a fit and proper chair and chief executive of a trust I might at the moment be somewhat concerned as to what I was actually meant to be doing.”
Michael Mire pointed to an “element of ambiguity” in the CQC’s role.
“How can we tell whether a foundation trust… has a process to appoint a fit and proper people, without looking at the people who have been appointed to see if they’re fit and proper?”
The CQC will publish its response to a consultation on the regulation at the end of this month and issue guidance before it comes into force.
The fit and proper person requirement comes into force from 21 November.
Under the regulation the duty to ensure fit and proper persons are appointed to boards rests with trusts rather than the CQC.