A shortage in the supply of senior NHS managers will not prevent the Care Quality Commission from taking action against trusts who employ ‘unfit’ directors, Sir Mike Richards has told HSJ.

The CQC chief inspector of hospitals also outlined the process for dealing with complaints under the new fit and proper person test regulations and the approach the regulator would take in judging individual cases.

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It is ‘not right to name individuals at a triage stage’, Sir Mike Richards said

The regulator received several referrals from campaigners and whistleblowers in January, seen by HSJ, together naming more than 20 current and former NHS chief executives, medical directors and senior board level executives as being allegedly unfit for their roles.

HSJ stated last month that it had chosen not to publish the names of people who have been referred to the CQC, and called on the regulator to act quickly to set out clearly how the process of investigation will work and to develop a plan for the release of information.

Under the regulations, which came into effect in November, directors can be deemed unfit to sit on boards if they have been involved in “serious misconduct or mismanagement”. The CQC can, through the provider registration process, require the removal of directors found to be unfit. However, it has not previously detailed its process for dealing with concerns or making information public.

Sir Mike told HSJ the CQC would not be put off from taking action against trusts despite concerns it could hamper their ability to attract senior managers to board level roles.

He said any shortage would “absolutely not” have any bearing on the CQC’s actions, adding: “This is about serious mismanagement or misconduct. There is not going to be any supply and demand issue; it would be quite wrong to do it on that basis.”

Sir Mike outlined a four-stage process the CQC will follow:

  • check that the referral has been made in line with the regulations;
  • examine whether there are reasonable grounds for review;
  • if there are grounds, inform the named individual; and
  • assess how the trust has responded to the CQC.

Where an NHS trust has not responded appropriately and the CQC believes it is in breach of the regulations, Sir Mike said it would be issued with a warning notice. At this point, he said the CQC would disclose details of the case, including the names of individual directors, and take appropriate enforcement action.

Sir Mike added: “We don’t think it’s right to name individuals at a triage stage, or if there is no reasonable basis for the complaint, or if the trust has reassured us.”

He said the CQC would have regard to the decisions and judgments of employment tribunals and that CQC would consider: “Has there been a serious apology and change? This is where the judgment will come in; is it a series of cases or behaviours, and is there any evidence of the individual having changed for the better?”

He repeated his belief the regulations could ultimately be tested in the courts.

Sir Mike expressed thanks to the groups that had submitted the names of senior managers and said the CQC was committed to making sure the process was robust and that it would be kept under review. He said their actions “had helped us to think through what our processes should be”.

The CQC is expected to update its guidance on the fit and proper person regulations, first published in November, shortly.