The final parameters of the new fit and proper test for NHS board members could be set in the courts, the chief inspector of hospitals has predicted.

Sir Mike Richards, who will help oversee application of the controversial test for the Care Quality Commission, has also warned the test could deter good leaders from rescuing struggling trusts if its introduction is not handled properly.

Sir Mike Richards

Sir Mike said ‘it would send a very bad signal to the NHS if the good guys felt that they were being got at’

In an exclusive interview with HSJ, Sir Mike stressed that the CQC’s role was not to rule on whether individuals were fit and proper.

The regulator would instead keep tabs on the “processes” that hospitals used to investigate complaints about board members that have been made by the public.

Sir Mike delivered his thoughts on the test just days after the regulations enforcing its use for the NHS came into force at the end of November.

He said he was already “aware” of cases that were being considered. The CQC has not, however, received any formal referrals.

The test, which was a recommendation of the Francis report, has been criticised for a lack of clarity over what is meant by “fit and proper”.

Lawyers have warned it could potentially create an informal blacklist of NHS managers.

Sir Mike rejected the suggestion the CQC was at risk of declaring someone not fit and proper by default but said he would “not be surprised” if the application of the test, ended up in court.

Legal challenges could either be through providers taking the CQC to court or come from an individual challenging providers.

“Ultimately we may need the courts to establish case law,” he said.

The definition outlined in the regulations describes a fit and proper board director as someone of good character, who is qualified for the role.

They must not have been “responsible for, been privy to, contributed to or facilitated any serious misconduct or mismanagement (unlawful or not)” while delivering health or social care services.

Sir Mike accepted this was a very broad definition.

“The important [question] is: what evidence do we have about that individual’s role?

“I do not think that just because you happen to have been in a trust at a time when things were going wrong that should in anyway disbar you from being a director in the future.

“Indeed, you may have been the one person that was really helping to keep the show on the road.

“I think it would send a very bad signal to the NHS if the good guys felt that they were being got at, having tried their very best to keep quality of care high. That would have a very negative effect on people going to work on trusts that were in trouble.”

He pointed to a number of actions that trust chairs could consider before employing someone who had worked for an organisation known for high profile failurues, such as Mid Staffordshire Foundation Trust.

They could make sure they had references from relevant people and grilled the individual on their role, including whether any specific allegations had been made against them.

It was also important to consider the time period an individual was working at the trust, Sir Mike added.

“If you took Mid Staffs… we know when the problems were.”

“If somebody went in after that with a view to turning it around they should be congratulated not penalised for doing that.”

Asked whether he thought it would have been more straightforward to regulate managers, Sir Mike said this was a matter for the government not the CQC.

“That is the state of the law at the moment and our job is to try and make this work in a fair way: fair on the individual, fair on trusts and fair to society,” he added.

New regulations to introduce the fit and proper persons test into the NHS came into effect on 27 November along with the duty of candour.

They will be rolled out to other health and social care providers regulated by the CQC from next year.

Sir Mike said the duty of candour was more “conceptually straightforward” than the fit and proper persons test.

It would be easier for the CQC check compliance as the regulations sets out the process organisations must follow when patients have suffered severe or moderate harm.

This includes writing patients or relatives letters of apology.