Mental health law briefing 210 – Are you ‘fit’?
Although there have been regulations in place for some time requiring providers of healthcare services regulated by CQC to be “fit” to do so, it has been clear that these requirements are to be strengthened. Draft regulations are currently before Parliament which introduce a new category of fitness, initially only for NHS Trust Directors, but it is very likely that those regulations will be followed by separate regulations applying to the private sector.
The regulations require parliamentary approval, but the draft requires Directors of NHS Trusts (and presumably in due course private providers) to show evidence of:
- Good character
- Being physically and mentally fit to carry on the activity
- Having satisfactory conduct in employment
- Having a criminal records check
However, a new provision additionally requiring demonstration of the qualifications, skills and experience that are “necessary” for the relevant role in which they work, makes the assessment of whether a Director is “fit” to be potentially very wide ranging. It is also proposed that a Director must not have been “responsible for, privy to, contributed to or facilitated any serious misconduct or mismanagement (whether unlawful or not) in the course of carrying on a regulated activity”. This is obviously a very wide provision which could have serious implications for managers involved in serious untoward incidents.
Whilst it is proposed that individuals will have the right to appeal a CQC decision on whether they are “fit” this is unlikely to be a speedy or cheap procedure.
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This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.