NHS England has recently issued its Framework for the Fit and Proper Person Test (“FPPT”) for board members. Whilst there is no change to the underlying legal requirements around the FPPT (set out at regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014), the Framework provides guidance to NHS organisations about steps they should take to comply with the FPPT. The Framework comes into effect on 30 September 2023.

The Framework provides very detailed guidance, but some headline points to note are:

  • The Framework sets out more detail, beyond that set out in CQC’s guidance on the FPPT, about checks NHS organisations should carry out when appointing Board members;
  • These include a new template Board Member Reference which appointing organisations should request and consider, and former employers should provide, when an individual is appointed as a Board member;
  • There is more detailed guidance as to annual refresh checks which are required for existing Board members; and
  • The Framework applies not just to NHS trusts and Foundation Trusts which are registered with CQC, but also to ICBs.

It is essential that NHS organisations have robust processes and controls around the FPPT to support the quality of FPPT assessments for both their own Board members and those within other organisations.

However, although the Framework is detailed, there will still be much for trusts, FTs, and ICBs to decide including implications for:

  • Systems and processes for carrying out FPPT assessments for new appointees and on an ongoing basis;
  • Processes for deciding what information to include when giving references relating to current (or former) employees who are taking up Board member roles with another NHS organisation;
  • Disciplinary processes and the drafting of Settlement Agreements; and
  • Dealing with disputes, either as to the data held in relation to Board members or when a Board member is assessed as not meeting the FPPT.

Bevan Brittan’s teams have extensive experience of advising clients on the Regulatory, Employment, and Information Law implications of the FPPT and if you want to discuss any issues relating to this please contact Carlton Sadler, PartnerAlastair Currie, Partner or James Cassidy, Partner.

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