Disclosed: CQC’s internal technical guidance on Regulation 5 Fit and Proper Persons and an internal audit on CQC’s woeful handling of FPPR

By Dr Minh Alexander retired consultant psychiatrist 9 May 2022

My apologies for this late posting of FOI material from March 2021. It came through at a time last year when I took a break from campaigning work due to personal commitments.

I asked CQC for this material partly because of the Mason Fitzgerald fake qualification scandal.

East London NHS Foundation Trust, a recent darling of regulators and the trade press, was embarrassed after the export of its executive paratroopers into stricken Norfolk and Suffolk NHS Foundation Trust came to a sticky end.

Marie Gabriel the ELFT Chair led the way as NSFT Chair, and following her, Mason Fitzgerald ELFT Deputy CEO was due to be crowned as NSFT CEO. But he fell at the last furlong when he was discovered to have faked a qualification on his CV. He withdrew his NSFT application and was eventually dismissed by ELFT.

Mason Fitzgerald and the Good Governance Institute

Astonishingly, despite the scandal, Fitzgerald was hired by of all people, the Good Governance Institute.

He is still featured on their website as a senior consultant.

Fitzgerald’s Good Governance Institute biography contains no mention of the fake qualification scandal.

The GGI sometimes takes on NHS work.

A month ago, I asked the Institute to comment but it has not done so.

Caveat emptor.

But the business once more raised questions about the NHS’ due diligence when appointing senior managers. Both ELFT and the CQC were in the frame – ELFT for its recruitment practices in not checking primary qualifications, and CQC for failures to do the same under Regulation 5 Fit and Proper Persons.

I therefore asked CQC for information on its processes, guidance to inspectors and quality assurance of its regulation of FPPR.

This was the CQC FOI response, along with disclosed guidance to inspectors and a single FPPR audit from November 2016 entitled “Quality Sampling Report, Fit and Proper Persons Requirement”:

CQC FOI response letter 19 March 2021 on CQC’s regulation of Regulation 5 Fit and Proper Persons

CQC FOI disclosure, CQC 2017 Guidance for Inspection teams Well Led Fit and Proper Person Test

CQC FOI disclosure, Quality Sampling Report, Fit and Proper Persons, November 2016

The disclosed guidance to CQC inspectors describes a largely tick box, administrative exercise but it does include ensuring that qualifications are checked.

CQC ducked a question that I asked on the minimum number of directors’ files that are checked during inspections, giving only this answer:

“Our assessment of trust-wide leadership, governance, management and culture will be the starting point for the trust-level rating for well-led. We also consider improvements and changes since the last inspection. A small team of inspectors and specialist advisors with appropriate experience will look at a range of evidence applicable at the overall trust board level. This includes interviews with board members and senior staff, focus groups, analysis of data, strategic and trust-level policy documents, and information from external partners. The scope and depth of our assessment of the well-led question varies for each provider. Our approach depends on factors such as the size of the trust, the findings of previous inspections, and information gathered from the provider, external partners and other sources on performance and risks in the trust across our five key questions”

The November 2016 audit of CQC’s regulation of FPPR shows that there was much confusion and a dog’s dinner of how different CQC staff approached the task. This was two years into the Regulation taking effect.

The paper, unsigned, was critical of CQC’s then guidance for inspection staff:

“There is also a lack of clarity about what is considered to be serious mismanagement, what to do if a breach of regulation 5 is determined and how the information and any proposed action should be escalated.”

“Although staff have received some training in FPPR there remains a lack of confidence and awareness about regulation 5, what type of evidence indicates a potential breach and what to do if a breach is found.”

The report notes:

“Our current management information on FPPR cases and records of action taken in relation to FPPR is not complete or correct. There are a lack of processes to follow when FPPR information is received by CQC The way we record and manage information relating to FPPR is inconsistent and as a result we are unable to track referrals or provide an audit trail of decision making and action taken .”

“There is a lack of clarity on how we will gain assurance of FPPR from some organisations.”

Private providers may have had an easy ride:

“Inspectors are unsure when FPPR is applicable to some corporate providers…In NHS inspections FPPR is proactively inspected….Across all other providers FPPR is only addressed reactively when specific issues arise.”

The report recommended more training for inspection staff, better guidance and processes and ongoing audit.

In its response to my FOI request CQC did not disclose any other audits of its handling of FPPR other than the audit undertaken in 2016. Therefore, CQC has failed to implement the 2016 recommendation on completing the audit cycle with re-audit. A fundamental failure.

In its FOI response letter, CQC also admits:

“No central data is held on how well CQC inspectors check provider compliance with CQC Regulation 5 Fit and Proper Persons.”

which underlines the complacency and lack of ongoing audit.

But an important admission is contained in the 2016 document:

“It is not the responsibility of CQC to ensure fitness although we can take action against the provider if we believe an unfit person to be in a directorship position.”

This is what Mike Richards the then CQC Chief Inspector of Hospitals said to whistleblowers at a telephone meeting in 2014.

It is a question of whether CQC has the will to do so.

There is not much evidence of that to date.

It is also important to note that CQC’s FOI response letter is also liberally peppered with phrases such as:

“robust process”

“proper processes”

“thorough processes”

when referring to its judgments of providers’ processes for assuring directors’ fitness.

This is important because CQC recently tried to claim that it has no role in determining how providers should assure directors’ fitness. More on that another time.

CQC clearly does have responsibility to ensure that providers’ FPPR processes are fit for purpose.

If the CQC waves any silly FPPR excuses at you to justify inaction, wave these papers back.