In 2014, the Government introduced a requirement, via Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations), on all health and adult social care providers registered with the Care Quality Commission (CQC) to make sure Board directors, Board members and individuals who perform the functions equivalent to the functions of a Board director and member, were ‘fit and proper’ for their roles.
In July 2018, the then Minister of State for Health, Stephen Barclay MP, commissioned Tom Kark QC to write a report and to make recommendations in relation to the fit and proper person test (FPPT) as it applied under Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
The Tom Kark QC review of the fit and proper person test (the Kark review) was published in February 2019 and made seven recommendations on how to improve the operation and effectiveness of Regulation 5.
In August 2019, NHS England, and NHS Improvement (now NHS England) established a Kark reference group with a broad membership including appropriate representation from whistle-blowers, patients, and a wider range of professional representative groups for managers. The Kark reference group was consulted on the Tom Kark QC recommendations resulting in a set of proposals to the then Minister of State for Health for approval. Taking forward the recommendations was paused during Covid and during the Messenger Review with ministerial approval to proceed received in May 2022.
The approved proposals which now form the basis of the current implementation work overseen by the newly established Kark Implementation Steering Group (the 2022/2023 Steering Group), are as follows:
- All Directors (executive, non-executive and interim) should meet specified standards of competence to sit on the board of any health providing organisation. Where necessary, training should be available.
- That a central database of directors should be created to hold relevant information about qualifications and history.
- A mandatory reference requirement for each director should be introduced.
- The FPPT should be extended to all commissioners and other appropriate arms-length bodies.
The ministerial position is that Kark recommendation 5 (‘the power to disbar for serious misconduct’) is not being progressed at this time.
Ministerial support was received for recommendation 6, and this will be taken forward as an action by the Department of Health Social Care (DHSC) and the Care Quality Commission (CQC):
- Remove the words “been privy to” from regulation 5.
The final Kark recommendation related to extending the FPPT to social services. This is outwith the scope of the current NHS England work and will not progress as part of this programme of work.
High level terms of reference for the 2022/2023 Steering Group are summarised below.
This steering group has been established by NHS England to shape and manage the implementation of the relevant recommendations arising from the Kark Review (i.e. recommendations 1-4). It will:
- provide a mechanism to review progress with delivery of the objectives of the programme.
- take account of the outputs from the expert advisory panels and whistle-blowers.
Specifically, the role of the steering group includes:
- Championing the programme objectives and deliverables at a senior and political and system level.
- Advising on key programme deliverables, including the implementation guidance for end users.
- Providing a point of escalation for significant risks and issues to the people and remuneration committee.
The outputs from the implementation work underway will include a Fit and Proper Person Test framework and guidance documents for use by individual organisations in applying the framework, and for other stakeholders to understand the process.