New Guidance from CQC on the duty of candour and fit and proper person requirement

The CQC have now published their new guidance on the duty of candour and fit and proper person requirement to sit alongside the Regulations which came into force on 27 November 2014.

It is still ‘interim’ guidance on the basis that the CQC will update it further ahead of the introduction of the other fundamental standards coming into force on 1 April 2015. They expect to be able to add to the guidance based on the lessons they learn from the early stages of implementation.

For those who are familiar with the previous draft guidance there are some interesting changes and clarifications.

Fit and proper person requirement

  • General approachthe new guidance appears to place more importance on process than anything else.  For example the draft guidance said that the requirement would “…enable CQC to decide that a person is not fit to be a director” and that CQC would “cross-check” notifications about new directors against information they hold.  The new guidance makes it clear that “CQC will not undertake a fit and proper persons test of a director” and that it will consider the significance and data protection implications of releasing information to a provider where it has concerns about a director.
  • Directorsthere has been concern about how far the duty extends and so CQC have clarified that it extends to executive directors, non-executive directors, interims and associate positions regardless of voting rights.  It will not apply to governors except where a governor has a place on the board.
  • Right of Appeal  – the new guidance is explicit that, where a director is deemed to be unfit, the provider can challenge that decision by appealing to the First-tier Health and Social Care Tribunal.  This is a statutory right of appeal (contained in the Care Act 2014). The guidance refers to this being a right of appeal for the provider rather than the individual director. Our view is that the Care Act provisions give the right of appeal to an individual director so this is an area to be further clarified in due course.
  • Appointment of new directors – the draft guidance said that CQC would require chairs to confirm, as part of their existing notification requirements at the time of appointment, that new directors had been assessed to be ‘fit and proper’.  The new guidance refers to a more general obligation to self-declare that director checks had been undertaken and so it remains to be seen whether an express declaration will need to be made for each new director.
  • Well-ledCQC have confirmed in the new guidance that the fit and proper person requirement will be seen in the context of the “well-led” key question  (“How does the leadership and culture reflect the vision and values, encourage openness and transparency and promote good quality care?”).  It is likely that staff will be asked questions around this point as part of a CQC inspection and that could give rise to concerns about whether the requirement has been met.
  • Appendix Athe new guidance has an appendix A which further clarifies some of the key terms and concepts involved in the requirement including an emphasis upon caring and compassion and how value-based recruitment can support the requirement
  • Lawful/unlawful – the new guidance does not resolve a discrepancy between the previous draft and the Regulations.  Under the Regulations ‘serious misconduct’ and ‘serious mismanagement’ can relate to both lawful and unlawful acts whereas the CQC guidance suggest that it will only apply where legislation/enactments have been breached (i.e. unlawful acts only). It remains to be seen if this will cause difficulties in practice.

Duty of candour

  • General approach – CQC will look at the duty in the context of the “well-led” key question (as set out above) but also the “safety” key question (“Are lessons learned and improvements made when things go wrong?”).
  • Being Open Frameworkthe new guidance picks out specific and helpful guidance from the Being Open Framework (2009) in terms of how organisations can become compliant.  This includes the need to obtain board level commitment, creating a culture of safety and ensuing that staff are appropriately trained in the duty.
  • Near missesthe guidance is clear that near misses that do not create harm do not give rise to the duty of candour.
  • Reasonable attemptsit may prove difficult, in some cases, to contact the patient and so the guidance makes it clear that “every reasonable attempt” should be made to make contact and that attempts should be documented.

Conclusion

The guidance has evolved from the original draft as a result of the consultation exercise. It will change further no doubt as a result of the lessons learned from early implementation by CQC. We will keep you updated on the guidance and our practical experience of the duties.

Click here for more information on duty of candour and fundamental standards of care.