To Professor Sir Mike Richards, CQC Chief Inspector of Hospitals,
10 July 2015
Dear Professor Richards,
Re: CQC, whistleblowing and Regulation 5 Fit and Proper Person (FPPR)
Many thanks for your letter of 30 June, received by email on 1 July. In this response I will focus on the issue of FPPR’s retrospective scope. I will respond to other aspects under separate cover.
To recap, on 17 April, I received a letter from you about FPPR that stated:
“Directors who were unfit prior to the introduction of Regulation 5 in November 2014 are outside our remit”
This surprised me because the original FPPR guidance issued by CQC in November 2014  explicitly clarified that there was no time limit for considering past failure or serious misconduct, page 24:
“While CQC will have regard to information on when convictions, bankruptcies or similar matters are to be considered ‘spent’, there is no time limit for considering serious misconduct or responsibility for failure in a previous role.”
I sought clarification of the discrepancy. This was particularly as I noticed that the above reference to FPPR’s retrospective scope seemed to have been omitted from additional FPPR guidance that CQC issued, on 27 March 2015. 
In your letter of 30 June you advised me that the original November 2014 CQC guidance on FPPR’s retrospective scope stands, but that:
“CQC exercises discretion about whether to consider old information which is not current”
“The application of this new regulation is not clear-cut or straightforward, and we have put systems in place to enable us to consider information on a case by case led by the most senior levels in CQC and supported by senior policy and senior legal colleagues”.
I am concerned by this. It seems to me that CQC is inconsistent in its application of FPPR, and the goal posts seem to be movable. Indeed, no one has yet been held accountable for gross whistleblower reprisal, even though parliament, Sir Robert Francis and Sir Anthony Hooper have all acknowledged that it happens and is a sign of unfit leadership. Dr Kevin Beatt’s case, despite detailed ET findings on serious detriment, has been rejected by CQC.
Nevertheless, I would be grateful if you could please clarify:
a) Whether you have advised anyone else that “Directors who were unfit prior to the introduction of Regulation 5 in November 2014 are outside our remit”?
b) Whether you will amend your advice to these individuals given that CQC now says its original guidance of 27 November 2014 (on retrospective scope) stands?
c) Will CQC revise its FPPR guidance of 27 March 2015, to include the original, crucial 27 November 2014 advice that “there is no time limit for considering serious misconduct or responsibility for failure in a previous role”?
Dr Minh Alexander
Cc David Behan CEO CQC
Dr David Drew
House of Commons Health Committee
Sir Robert Francis CQC NED
Dr Louis Appleby CQC NED and Chair of CQC Regulatory Governance Committee
 Regulation 5: Fit and proper persons: directors and Regulation 20: Duty of candour Guidance for NHS bodies, CQC 27 November 2014
 Regulation 5: Fit and proper persons: directors Information for NHS bodies, CQC 27 March 2015