Strengthening corporate accountability in health and social care: A consultation

This consultation asked for views on proposals to hold providers of health and social care to account where there are serious failures in care.

It proposes that all directors of providers registered with the Care Quality Commission (CQC) – NHS hospitals, private hospitals and care homes – must meet a new fit and proper person test. The CQC will be able to insist on the removal of directors that fail this test.

In cases where providers fail in the care that they provide, the CQC will be able to consider the role of the board and individual directors in that failure – with the power to prosecute in the case of serious failure.

The CQC has recently launched its own consultation on a new regulatory model which will include developing new fundamental standards as part of the requirements for registration with CQC. This will set in law a clear baseline below which care must never fall, and will allow CQC to take action against providers that do not meet these standards, including prosecuting individual directors where it can be established that they had neglected their duty to ensure that the basic standards of care are provided.

Chapter 1: Introduction

1. In December 2012 the Government published Transforming Care: A national response to Winterbourne View hospital.1 Although 11 former members of staff at Winterbourne View were sentenced in connection with the abuse of patients, the Department’s review identified weaknesses in the system of accountability where leaders of organisations are not held to account for the delivery of poor quality services or for allowing a culture where neglect and abuse are rife.
2. The report said:
   “There must be robust consequences for senior managers or Boards of Directors of services where, through neglect, the organisations they lead provide poor quality of care or where people experience neglect or abuse.”
3. The report committed the Department and the Care Quality Commission (CQC) to look at existing powers and options to improve corporate accountability for  safety and quality in providers of health and adult social care registered with CQC and to bring forward proposals for consultation in spring 2013.
4. The Francis report of the inquiry into Mid Staffordshire NHS Foundation Trusts published in February 2013 also raised concerns about corporate responsibility. It recommended that there should be a requirement that all directors of all bodies registered by the Care Quality Commission are and remain fit and proper persons for the role, and that provision should be made for regulatory intervention to require the removal or suspension from office after due process of a person whom the regulator is satisfied is not or is no longer a fit and proper person.
5. The Department’s initial response to the Francis Inquiry, Patients First and Foremost2, published in March also included a number of proposals around the fitness of directors and prosecution powers, including use of health and safety legislation – in particular, sections 3, 7, 8, or 37 of the Health and Safety at Work Act 1974 (HSWA).
6. The Department of Health and the Care Quality Commission have worked together to develop the proposed changes to strengthen corporate accountability. This has focused on two areas:
   i.  to introduce a new registration requirement covering the fitness of Directors of Boards; and
   ii.  to improve the way that existing sanctions are used to prosecute providers for failings in the quality and safety of care. A new start, the consultation on CQC’s new regulatory model published on 17th June, also sets out further detail on some of these issues.
7. Following the Government’s response to the failings at Winterbourne View hospital, CQC are making some immediate changes. From July 2013 they will introduce a better system for providers applying to register with them to provide care for people with learning disabilities. They will do this by making sure that:
   The process of registering with CQC is effective and efficient;
   There is a more robust test for providers whose ability to deliver high quality care is less clear;
   Those they register make a commitment to deliver safe, effective, compassionate, high quality care; and
   Named directors or leaders of organisations are personally held to account for that commitment. This is in addition to making sure providers and registered managers are held to account for the care they provide. In developing the regulations, we will explore whether it would be sensible to streamline the role of the Nominated Individual and the named individual at Board level with oversight for quality and safety.
8. This document sets out the arrangements for assessing the fitness of directors and the proposed changes to strengthen corporate accountability, seeks your comments on a number of specific questions and asks for help with identifying further evidence relevant to these issues.
9.  Some of the changes we are proposing will require changes to regulations (secondary legislation). The response to this consultation will contribute to the development of those regulatory changes. New draft regulations will be set out by the Department of Health in the autumn so people will be able to see how the new fit and proper persons test is translated into legislation, and will have the opportunity to comment before the regulations go to Parliament for approval at the end of 2013.