Earlier this year HSJ reported that more than 20 NHS directors had been referred to the Care Quality Commission under the new ‘fit and proper’ person regulation. We now know the names of those involved but, after careful deliberation, have decided not to reveal their identities. This editorial explains why and raises important questions about the investigation process.

The test extends the concept of “fitness” from one incorporating “character, health, qualifications, skills and experience” to responsibility for or complicity in any serious misconduct or mismanagement”.

Alastair McLellan

Alastair McLellan

Failing the test could lead to a director being barred from employment by the NHS.

Under the new regulation anyone with a complaint against an NHS director can ask the CQC to investigate them. There appears to be no limitation on the age of the grievance, and neither does it need to relate to the director’s current job.

The CQC has adopted a “learn by doing” approach to the test and acknowledges its decisions may end up being contested in court.

Under investigation

HSJ understands all referrals have resulted in the commission requesting information from the employer of the director concerned – which immediately gives credence to the complaint.

What happens next, and who is told what and when is unclear – as is the likely timescale for any investigation.

‘In some cases it does appear there may be a case to answer’

The CQC refuses to say anything about any of the referrals, other than to declare its final decision will be made public.

HSJ has chosen not to identify the directors referred. In some cases it does appear there may be a case to answer, but should that not be the case, publication would be a considerable injustice. However, many of those who have made referrals want the directors named. Other media will be keen to publish those names and, indeed, are actively trying to do so. 

The name of anyone referred could be published as being “under investigation”.

Readers will understand what that could do to the careers of those directors and the fortunes of the organisations they lead, even if the complaint is entirely without substance or the commission subsequently declares itself satisfied about their fitness.

Code of silence

Maybe someday the CQC’s code of silence will be sustainable, but faced with media that are often overtly hostile to NHS leaders it seems naive at best.

By contrast, investigations by the General Medical Council and the Nursing and Midwifery Council, while not perfect, have well established protocols for naming any clinician referred for investigation. Both carry out preliminary investigations confidentially. Vexatious complaints and those lacking the necessary evidence are, mostly, weeded out. 

Only after complaints have passed through this scrutiny and a decision has been made that there is a case to answer will the media be given details, often including names.

‘Directors must be reassured that their reputations will be protected until evidence suggests there’s a case to answer’

This is not a legal requirement but a sensible response to public interest. Its logic and inherent fairness leads the media to feel largely honour bound to observe the convention.

HSJ believes the fit and proper test is an inelegant solution to a problem best dealt with through effective board governance, and that it will prove to be another unnecessary thorn in the CQC’s side. However, dealing with dud policy is the lot of many regulators. The commission must act quickly to set out clearly how the process of investigation will work and to develop a more realistic plan for the release of information.

All involved should understand how the process works, timescales and possible outcomes. NHS directors referred must be reassured that their reputations will be protected up until any evidence suggests there is a case to answer.

It is difficult enough already to attract enough people to take up demanding leadership roles in the NHS. The fit and proper test will make this situation even worse, but its impact can be mitigated.