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Kark Review recommendations to strengthen Fit and Proper Persons Test welcomed

Protect welcomes the Kark Review recommendations to give more teeth to the Fit and Proper Persons Test (FPPT) –  which is in place to ensure senior staff responsible for quality and safety of care are fit for their roles.

Led by Tom Kark QC, the review, commissioned by the government, looks at how effective the Fit and Proper Persons Requirement is in preventing unsuitable staff from being redeployed or re-employed in the NHS, clinical commissioning groups, and independent healthcare and adult social care sectors.

The Kark Review recommendations include:

  • All directors should meet certain professional standards to sit on an NHS board
  • A central database should be created that holds key information about qualifications and employment history
  • References should be a mandatory requirement for director posts
  • The FPPT should apply also to commissioners and arms-length bodies
  • A power should be created to disbar directors for serious misconduct
  • Further work should be done to assess the Test in social care contexts

Recent incidents in a number of NHS trusts have made it clear that ensuring effective management must be a priority. Directors, particularly when it comes to whistleblowing, must take the lead in instilling an open and supportive culture in which staff feel encouraged to speak up about concerns.

The fit and proper person regulation (FPPR) requirements came into force for all NHS trusts and foundation trusts in November 2014 following a number of scandals in the sector, to promote effective management. The Test requires NHS Trusts to assess newly appointed Directors against a number of criteria. A Trust must provide information to the Care Quality Commission (CQC) and declare that the individual meets the criteria. At present, individuals who do not pass the FPPT are listed on a register which places restrictions on their work.

The report discusses the relatively low rate of recorded whistleblowing in the NHS for a sector of its size and refers to a number of employment tribunal judgments which highlight a tendency in some NHS trusts to conceal concerns. The report remarks that the NHS’s understanding of ‘Speaking Up’ covers a broader range of disclosures than those which earn protection under whistleblowing legislation. Protect takes the view that workers and their managers need clear information and understanding of whistleblowing protection. For example, disclosures about bullying at work – though an important part of the speak-up landscape – do not necessarily qualify for legal protection against dismissal or detriment.

We share the concern expressed by Kark that some standard aspects of settlement agreements often obstruct transparency about a director’s past conduct. Confidentiality clauses and bare-bones agreed references can make it difficult for a prospective employer to make an informed assessment of a candidate because they prevent sharing of information between NHS bodies about previous misconduct, such as mishandling of whistleblowing.

In the context of those challenges, the report recommends that references be required to contain certain mandatory information. This is to be informed by a new central database of key information about all NHS directors, possibly housed within NHS Improvement. This would go some way in addressing the obstacles posed by settlement agreements.

In the context of Kark’s comments on whistleblowing in the NHS, it is encouraging that the NHS standard contract for 2019/20 includes an express commitment that nothing in any contract, such as a settlement agreement, will prevent a worker from raising concerns about quality or safety of care provided by their employer. This sits alongside provision that nothing will prevent disclosures protected by the Employment Rights Act 1996.

A key report recommendation is that certain behaviours amounting to “serious misconduct” should lead to temporary or permanent disbarment from a director post. These powers go beyond the current possible actions of the CQC if a director fails the test, which extend only to refusing the director’s appointment or working with a Trust to improve governance. This sort of enforcement power is crucial in order to make the FPPT a more meaningful endeavour when serious misconduct comes to light.

Protect welcomes the recommendation that suppression of whistleblowing or victimisation of a whistleblower by any director who falls under the regulation of the FPPT be considered “serious misconduct”. This is welcome recognition of the central importance of whistleblowers in ensuring high standards in the NHS.

Read the Kark Review in full

By Protect adviser Dugald Johnson