Health and Care (Staffing) (Scotland) Act 2019 - draft statutory guidance: consultation

10. Adequate Time for Clinical Leaders

10.1 Which sections of the Act is this chapter about?

This chapter provides further detail section 12IH of the 1978 Act, duty to ensure adequate time given to clinical leaders, which is inserted by section 4 of the Act.

A link to the Act can be found here. There are other links to useful information, including to other chapters of the guidance, embedded in this chapter; these are denoted in blue text.

10.2 Who does this chapter apply to?

The following organisations must comply with the duty contained in this chapter:

• All geographical Health Boards;
• NHS National Services Scotland (referred to in the Act as the 'Agency'); and
• Special Health Boards who deliver direct patient care, i.e., NHS 24, the Scottish Ambulance Service Board, the State Hospitals Board and the National Waiting Times Centre Board.

These are referred to as "relevant organisations" in this chapter.

10.3 In what settings and to which staff does this chapter apply?

The duty contained in this section applies to all NHS functions provided by all professional disciplines (chapter 3, introduction provides more details on professional disciplines covered by the Act). It is not limited to the types of health care listed in section 12IK of the Act in relation to the section 12IJ Duty to follow the common staffing method.

Accountability for all the duties covered in this chapter remains with the relevant organisation and not with individuals who may be charged with carrying out certain actions.

10.4 What is this chapter about?

Most of the duties and requirements of section 4 of the Act exist to directly support the delivery of the duty under section 12IA of the 1978 Act to ensure appropriate staffing in health care. The section 12IH duty to ensure adequate time given to clinical leaders recognises the duties and responsibilities that clinical leaders have under the Act in their relevant organisations.

This section of the 1978 Act is intended to ensure that clinical leaders receive the right amount of time and resources to discharge their responsibilities under the duty to ensure appropriate staffing, alongside all the other professional duties and responsibilities they have. These include the clinical leadership and management functions that support the delivery of high quality care. This section should be considered within the context of existing staff and clinical governance arrangements, and professional structures.

The Act sets out further provisions around a minimum requirement for quarterly reporting by individuals with lead clinical professional responsibility for a particular type of health care to members of the relevant organisation under the section 12IF duty to seek clinical advice on staffing, which would include reports on compliance with the duty to ensure adequate time is given to clinical leaders. Relevant organisations will also have to detail how they have carried out this duty in their annual report to the Scottish Ministers under section 12IM reporting on staffing.

This chapter provides guidance on how relevant organisations should go about establishing the right amount of time and resources required for clinical leaders to support compliance with the section 12IA duty to ensure appropriate staffing, and their wider professional duties.

Arranging staffing which provides safe, high-quality health care, appropriate for the health, wellbeing and safety of patients, and, as far as it affects either of those matters, the wellbeing of staff, requires clinical leaders who have the time and resources to lead. This applies to both the planning of services and the real-time delivery of health care.

10.5 Who are the 'clinical leaders' in this section of the Act?

This section of the Act is specific to individuals with clinical professional responsibilities for a team of staff (referred to in this guidance as a "clinical leader"), for example consultant medical staff, Allied Health Professional (AHP) team leaders, senior charge nurses/midwives and pharmacy department heads. In this context, clinical leadership includes clinical oversight and/or expertise as well as direct clinical intervention work.

Managers who do not have clinical leadership roles are not included in this duty on relevant organisations to provide adequate time. For example, a social worker who leads a multi-professional community team which includes AHPs and nursing staff would not be in scope as they are not a clinician. However, the AHP who has lead clinical professional responsibility for the AHPs working in that team would be in scope and the relevant organisation(s) would be required to factor in sufficient time and resources for them to undertake their functions in relation to that role.

In practice, there may well be more than one individual with lead clinical professional responsibility for a team of staff in any given area e.g. medical clinical leader, AHP clinical leader and nurse clinical leader. The Act applies to all such leaders, and will require the relevant organisation(s) to make a determination of sufficient time and resources for each leader.

10.6 What are the functions of clinical leaders which relevant organisations must consider in calculating "adequate time"?

The Act places equal weight on the responsibilities of clinical leaders to operationally deliver on the relevant organisation's duty in the Act to ensure appropriate staffing and "their other professional duties". Therefore, relevant organisations will need to factor in their full range of duties within the determination of "sufficient time and resources".

Those clinical leaders referred to in section 12IH will, or are likely to, have a role to play in relation to functions referred to in, or arrangements that will be put in place under, the following sections of the 1978 Act on behalf of the relevant organisation:

• 12IA Duty to ensure appropriate staffing;
• 12IB Duty to ensure appropriate staffing: agency workers;
• 12IC Duty to have real-time staffing assessment in place;
• 12ID Duty to have risk escalation process in place;
• 12IE Duty to have arrangements to address severe and recurrent risks;
• 12IF Duty to seek clinical advice on staffing;
• 12IH Duty to ensure adequate time given to clinical leaders;
• 12II Duty to ensure appropriate staffing: training of staff;
• 12IJ, 12IK, 12IL relating to the use of the common staffing method; and
• 12IM Reporting on staffing.

Three key aspects of the clinical leader's wider professional duties are emphasised in the section 12IH duty, and these must be included within the determination of sufficient time and resources for clinical leaders. However, it should be noted that this list is not exclusive of other considerations which the relevant organisation(s) and / or the clinical leader may believe to be relevant. The three areas which must be included by relevant organisation(s) are:

• time to supervise the meeting of the clinical needs of the patients in their care;
• time to manage, and support the development of, the staff for whom they are responsible; and
• time to lead the delivery of safe, high-quality and person-centred health care.

These areas are further explained below.

10.7 Time "to supervise the meeting of the clinical needs of the patients in their (team's) care"

The supervisory functions of a clinical leader would include, but not be limited to:

• oversight of care delivery, including enhancing patient experience;
• addressing the needs of patients' families and carers;
• clinical supervision and observation of clinical practice;
• reviewing clinical records;
• supporting reflective practice with individual members of staff;
• supporting improvement in individual practice and ensuring a culture of reflective practice is embedded in the team;
• inspiring patient confidence by setting and maintaining high standards of patient care;
• using patient and carer feedback to support service improvement;
• ensuring observations of care, assess culture, patient experience and the advancement of clinical care; and
• education of staff where required.

10.8 Time "to manage, and support the development of, the staff for whom they are responsible"

Staff management and development may differ, depending on the role and management responsibilities of the clinical leader. For example, a senior charge nurse is responsible for management of staff, budget and the environment, whereas a lead consultant may be responsible for management of staff but neither budget nor environment. The type of activity undertaken, depending on remit, may include:

• direct management of staff (including effective rostering, staff appraisals and personal development plans, ensuring appropriate development opportunities for staff, recruitment of staff and investigation and management of staff performance);
• budget management (including understanding the budget, ensuring the most effective use of resources, effective rostering, managing supplies and procurement);
• investigation of adverse events;
• management of complaints and feedback;
• investigation and management of staff performance;
• ensuring appropriate clinical governance and complying with standards;
• ensuring a safe environment (e.g. ensuring a clean environment and ensuring health and safety risk assessments are undertaken and updated; and
• attending management meetings.

10.9 Time "to lead the delivery of safe, high-quality and person-centred health care"

The clinical leader has a key role in driving quality improvements in the team – leading on quality planning, quality control, quality assurance and quality improvement. In practice they will do this by:

• leading collection and analysis of quality and safety measures and patient outcome information;
• supporting the delivery of subsequent improvement activity;
• escalation of concerns in relation to delivery of care;
• acting as a role model for colleagues and setting the standard for the care delivered;
• reviewing patient experience information;
• contributing to and influencing decisions about the service or profession;
• leading change within their area;
• reflecting implementation of evidenced-based practice changes and contribution to research;
• identifying opportunities for redesign where appropriate;
• maintaining the psychological safety within the team;
• keeping their own professional skills and competencies up to date, including contributing to professional forums or other networks; and
• generally contributing to the delivery of the organisation's objectives.

As noted above, these lists are not exhaustive and should be considered alongside the many specific functions which individual clinical leaders will undertake under the Act – such as implementing real-time staffing assessment and risk escalation procedures, running the common staffing method, or contributing to reporting on compliance.

10.10 Does this section include both time and resources?

Yes. Although the title of the section refers to "adequate time", the section itself refers to "sufficient time and resources" for clinical leaders to discharge their responsibilities in relation to the duty to ensure appropriate staffing and their other professional duties.

Resources may include:

• HR support;
• finance/management accountant support;
• administrative support;
• facilities support;
• clinical governance / improvement support;
• quality improvement support;
• management support;
• access to skills building opportunities and coaching;
• health and safety support;
• organisational learning, education and development support;
• clinical supervision;
• access to appropriate IT and systems; and
• IT training and support.

The resource for a clinical leader may well therefore be the time of other staff required for them to carry out this function

10.11 How should relevant organisations determine "sufficient time and resources"?

The determination of sufficient time and resources for each clinical leader should be undertaken in dialogue between the relevant organisation and the clinician, abiding by the guiding principle to "take account of the views of staff" in discharging duties under the Act, considering their role, responsibilities, resources and local context. This should be set in the context of existing staff and clinical governance arrangements within the relevant organisation.

In keeping with the emphasis in the Act on multi-disciplinary working, these provisions should be set in the context of the needs of different clinical professions in supporting the relevant organisation to comply with the duty to ensure appropriate staffing.

The starting point for the discussion will necessarily vary to reflect the different roles, responsibilities and structures of different professions. This should take account of a range of factors such as local context, service delivery model and the size and nature of the team when determining what constitutes sufficient time and resources. Guidance produced by professional regulatory bodies can also be used. The discussion should take place as part of the existing arrangements through which a clinical leader's time is agreed. Where there is a job planning process in place this could be used. Where there is not, consideration could be given to establishing one. The decision on sufficient time and resources may need to be reviewed if the service delivery model or team format changes.

Where any relevant organisation sets out a particular local factor, or factors, to include in calculations for any profession within their remit, these should be: developed in partnership; be subject to 12IF duty to seek clinical advice on staffing; and agreed with the board-level clinical leader(s) with responsibility for the particular professions.

The determined time and resources for leadership should be clearly articulated to all staff who have professional clinical leadership responsibilities within a team. It would be good practice for the relevant organisation to keep a record of its discussions with the individual clinical leader in determining and agreeing sufficient time and resources. Where agreement cannot be reached between the relevant organisation(s) and the clinical leader, the clinical leader may use provisions to disagree with the clinical advice given on adequate time and resources, set out in 12IF duty to seek clinical advice on staffing.

Once an allocation of time / resource is agreed, this should be protected for the individual clinician to carry out their leadership functions. Whilst there may be times of particular clinical pressure when additional time may be required to deliver patient care directly, these should be the exception and not the rule. Both the relevant organisation(s) and the clinical leader should be able to request a review of the determined time / resource.

The section 12IC duty to have real-time staffing assessment in place requires relevant organisations to put and keep in place arrangements of the real-time assessment of its compliance with the duty imposed by section 12IA, including having a procedure for the identification and notification of any risks caused by staffing levels to the health, wellbeing and safety of patients, the provision of safe and high-quality health care or, in so far as it affects either of those matters, the wellbeing of staff. If an inability to meet the determined time or resources for clinical leadership for any particular individual is considered a risk, then this procedure for risk identification should be followed, along with 12ID duty to have risk escalation process in place and 12IE duty to have arrangements to address severe and recurrent risks, as appropriate.

10.12 How does a relevant organisation evidence compliance?

The relevant organisation should set out:

• how it has determined who has lead clinical professional responsibility for each team;
• how it has determined what sufficient time and resources are for the clinical leader to be able to discharge their responsibilities as part of the organisation's overall duty to ensure appropriate staffing. This includes, but is not limited to, supervision of meeting the clinical needs of the patients in their care, managing and supporting development of the staff for whom they are responsible, and leading the delivery of safe, high-quality and person-centred care;
• any associated risk assessment that was carried out;
• how clinical advice was sought and had regard to, and; and
• how the calculated time and resource is kept under review.

10.13 How should this be factored into staffing establishments?

The outputs of the discussions between relevant organisation(s) and individual clinical leaders will form the basis of the evidence used to ensure staffing establishments effectively incorporate the time and resources required for clinical leaders, and, in doing so, will support organisations to deliver on their duties under the Act.

For the health care settings covered by the section 12IJ duty to follow the common staffing method (i.e. those listed in section 12IK of the 1978 Act), the common staffing method requires that the role and professional duties of any individual with lead clinical professional responsibility for the particular type of health care must be taken into account when determining the staffing establishment. The output from the speciality-specific staffing level tool may not currently include all the workload of the clinical leader's role as defined in section 12IH of the 1978 Act. In these cases the proportion of their time devoted to this role is over and above the number produced by the staffing level tool. Further information on the operation of specific tools can be found at Staffing (workload) tools and methodology and each user guide details if the tool takes into consideration the workload associated with the clinical leader's role.

Consideration of the requirements of the leadership role under the section 12H duty must also be factored into the professional judgement aspect of the common staffing method. Consideration should also be given to the contribution to clinical leadership and supervision of individuals who are not included in the staffing establishment for that area.

In health care settings not covered by the common staffing method (i.e. in those areas where there is not currently a staffing level tool) the staffing establishment agreed, after consideration of appropriate clinical advice, must include the proportion of time allocated for the lead clinical professional role within that team, as well as the time and staff required for direct patient care. Consideration should also be given to the contribution to clinical leadership and supervision of individuals who are not included in the staffing establishment for that area.

10.14 Other relevant guidance and legislation

Staff Governance Standard — NHS Scotland Staff Governance

Clinical and care governance framework: guidance - gov.scot (www.gov.scot)

Standards - The Nursing and Midwifery Council (nmc.org.uk)

Ethical guidance - GMC (gmc-uk.org)

Leading Better Care: Report of the Senior Charge Nurse Review and Clinical Quality Indicators Project - gov.scot (www.gov.scot)

Excellence in Care (healthcareimprovementscotland.org)

Quality improvement | NHS Education for Scotland