• Agreeing secret pay deals without proper approval, inhibiting whistleblowers and failing to cooperate with review could all be prescribed behaviours under new fit and proper test
  • Review by Tom Kark QC will review seven specific areas of misconduct that could exclude NHS managers from boards
  • The government announced the review following Dr Bill Kirkup’s report into Liverpool Community Health Trust earlier this year
  • Mr Kark will consider whether the fit and proper person test can be expanded to all NHS bodies not just providers

A government review into the regulation of NHS managers will consider whether seven specific areas of misconduct, including discouraging whistleblowing should be specified under a new fit and proper person test.

The final terms of reference and protocol for the Kark Review of the fit and proper regulations have been published by the government which sets out how the review, by Tom Kark QC, will gather its evidence.

Mr Kark was the senior counsel to the Mid Staffordshire Public Inquiry, which recommended the fit and proper person test in its final report.

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

These include:

  • A failure to cooperate with investigations and reviews
  • Failing to preserve records safely or the falsification or inappropriate withholding of records
  • Bullying and/or harassment
  • Conduct that could inhibit or discourage whistleblowing
  • Failing to secure approvals or notify bodies of “settlement agreements” and associated payments
  • Failure without reasonable excuse to observe the duty of candour
  • Any attempt to conceal or disguise acts as outlined above

The review will consider the scope, operation and purpose of the regulations and whether other approaches would be more appropriate.

It will also look at whether to expand the fit and proper person test to “a full range of NHS bodies” beyond just providers. It will also compare existing forms or professional regulation with the FPPR and whether any changes should be made to the legislation.

The Kark review was established by health minister Stephen Barclay following the inquiry into the Liverpool Community Hospital by Dr Bill Kirkup in February this year.

Former Care Quality Commission chief executive David Behan said the regulations as they currently exist were more targeted at how NHS trusts apply the tests to recruiting board members and it did not specifically allow the CQC to “strike-off” managers guilty of misconduct.

The regulations have been repeatedly criticised for the CQC’s inability to take action against trusts where managers have been accused of unfit behaviour. This included the appointment of former NHS chief executive Paula Vasco-Knight, who was dismissed from her South Devon Foundation Trust role for victimising whistleblowers before joining St George’s University Hospital FT and being cleared by the CQC. She later stepped down and was convicted of fraud.

A final report and recommendations are expected to be submitted to the Department of Health and Social Care in the autumn.