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Blowing the whistle: an investigation into the Care Quality Commission’s regulation of the Fit and Proper Persons Requirement

Findings

Our investigation found that the CQC’s handling of FPPR was not transparent, fair or proportionate and it amounted to maladministration. This is due to two reasons.

Firstly, the CQC’s record-keeping was poor. To be ‘open and accountable’ the CQC should have created and maintained useable records as evidence of their decision and reasons for closing the FPPR matter for Trust P in 2016.

The CQC’s records did not explain their decision, what they thought of the evidence presented to them and how they weighted different pieces of evidence.

Secondly, the CQC did not adequately weigh up the evidence and they dismissed relevant considerations in their assessment of whether Trust P made a reasonable decision on FPPR in relation to the Chief Executive.

We would expect the CQC’s decision-making to take account of all relevant considerations, ignore irrelevant ones and balance the evidence appropriately. However they dismissed the criticisms of the Chief Executive in the 2014 Employment Tribunal findings while other evidence such as the Chief Executive’s references, apology for their handling of Ms K’s allegations in their interview with Trust P and the Professional Regulator’s report, were given more importance without good reason.

The grounds that CQC relied upon for accepting Trust P’s view on FPPR were inadequate. 

The Employment Tribunal explicitly contradicted Trust J’s internal investigation and criticised the Chief Executive’s actions. While the Professional Regulator’s report was an important piece of evidence, the CQC placed too much weight on it as it did not cover all the FPPR issues the CQC needed to address. It did not give a clear view about the allegation of whistle-blower suppression.

In addition, the CQC said that had the Chief Executive been applying for a permanent role at Trust P then they would have likely carried out an independent investigation. However, the 2015 guidance was clear that the FPPR applied to both permanent and interim roles. The employment status of a director is not a relevant factor in the FPPR regulation, given the aim of FPPR is to prevent unsuitable directors moving around the NHS.

We found that the CQC’s consideration of the evidence presented to them contained fundamental flaws and the seriousness of the failings in this case raises the possibility that the failings go beyond this case. Their decision to close the FPPR case for Trust P was flawed. It  caused Ms K significant upset and exacerbated her distress as a result of the Employment Tribunal and her previous mistreatment by Trust J.

It would be speculative to establish what would have happened had the CQC undertaken a robust consideration of Trust P’s handling of the FPPR, therefore we are unable to uphold this element of Ms K’s complaint.