• More than 90 per cent of about 80 senior managers surveyed backed idea of professional regulation
  • MIP chief executive warned the fit and proper person test cannot stay as it is
  • Tom Kark QC is currently reviewing the regulations and could recommend legislation

A majority of senior NHS managers supported the introduction of regulation for their profession in a survey by the union Managers in Partnership, which it is submitting to a government review.

The MIP union, which represents managers in the NHS, carried out a survey of board level managers and directors who could come under existing fit and proper person test regulations.

The trade union wanted to gauge members’ opinions before giving evidence to the ongoing review being led by Tom Kark QC.

Of slightly more than 80 senior managers who responded, 91 per cent, or 77 people, said they agreed with the principle of professional regulation of NHS managers. However, more than two thirds, 65 per cent, said they were not confident the current fit and proper person test would be implemented fairly and objectively.

Almost 80 per cent of respondents said the existing regulations did not cause them anxiety or concern in their current position. Twenty per cent had been asked “to apply the FPPR on another employee”.

The issue of professional regulation of NHS managers has been a point of debate for years, and the first Francis report into the Mid Staffordshire care scandal recommended “creating and enforcing uniform professional standards… formulated and overseen by an independent body given powers of disciplinary sanction”.

In the subsequent public inquiry, Sir Robert Francis QC recommended a fit and proper person test which was created in new regulations, to be overseen by the Care Quality Commission. The regulations have drawn criticism for not being capable of removing unfit directors and the CQC insists its role is confined to checking the process trusts use to examine the fitness of their directors.

Mr Kark, who was the lead counsel at the Mid Staffs public inquiry, was asked by health minister Steve Barclay to lead a review of the regulations following failings by senior managers at the Liverpool Community Hospital Trust.

Jon Restell, chief executive of Managers in Partnership, told HSJ the union had not been given a mandate to argue for or against professional regulation but that it was important managers in the NHS were given clarity about the regulations.

“We are not opposed to the fit and proper person test, but it can’t stay as it is. The legislation needs to be clarified, we can’t have a situation where every so often the CQC clarifies what is meant by guidance. They themselves are so unclear in so many respects. For example, the latest guidance suggests trusts can decide who is covered, which has meant variable practice by trusts.”

He said there needed to be clarity about what the regulations were intended to cover and define behaviours and what is meant by mismanagement and misconduct which could lead to someone being found to be unfit.

“The big one for us is the process to be followed. The CQC is in a rather ambivalent relationship with the regulations and their role is to assure process and not to offer a judgement or point of appeal so the employer is both judge and jury.

“Due process in this context would mean objectivity in evidence, clarity about standards and then an appeals process as a critical feature outside the employer must mean taking the offence and working out what is a proportional response to it.”

He added that while some opponents of professional regulation believe it could be impossible to regulate managers given the wider system in which they operate, the majority support the idea in principle but are concerned it would not be applied fairly or they would be “scapegoated” for wider failings – a concern increasingly raised by clinicians towards their own professional regulators.

The Kark review is taking evidence from a number of organisations and will consider the scope of the existing regulations and whether changes need to be made.

According to its terms of reference, Mr Kark will review whether certain behaviours should be specified as misconduct that could lead to senior managers being barred from sitting on NHS boards.

Mr Kark is expected to publish his report later this year.