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

14. Role Of Healthcare Improvement Scotland (HIS)

14.1 Which sections of the Act is this chapter about?

This chapter provides further detail on the following sections of the 1978 Act, each of which is inserted by section 6 of the Act:

section 12IP: HIS: monitoring compliance with staffing duties (referred to here as the "section 12IP duty");

section 12IQ: HIS: monitoring and review of common staffing method (referred to here as the "section 12IQ duty");

section 12IR: HIS: monitoring and development of staffing tools (referred to here as the "section 12IR duty");

section 12IS: HIS: duty to consider multi-disciplinary staffing tools (referred to here as the "section 12IS duty");

section 12IT: HIS: duty on Health Boards to assist staffing functions (referred to here as the "section 12IT duty");

section 12IU: HIS: power to require information; and

section 12IV: HIS: ministerial guidance on staffing functions.

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.

14.2 Who does this chapter apply to?

Sections 12IP, 12IQ, 12IR, 12IS and 12IU apply to HIS.

Sections 12IT and 12IU place requirements on the following organisations:

• 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.

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

Reporting duties contained in these sections apply to all NHS functions provided by all professional disciplines (chapter 3, introduction provides more details on professional disciplines covered by the Act). They are not limited to the types of health care listed in the Act in relation to section 12IJ Duty to follow the common staffing method.

Accountability for all the duties and requirements covered in this chapter remains with HIS and, where appropriate, the relevant organisations and not with individuals who may be charged with carrying out certain actions.

14.4 What is this chapter about?

The purpose of HIS's function in relation to the Act is to provide assurance to the Scottish Ministers that relevant organisations are complying with the duties required by the Act. This will enable areas of good practice and constructive areas of learning from events to be identified and shared, and for appropriate improvement support to be provided.

In addition to this assurance function, HIS also has requirements under the Act to monitor and review the common staffing method and monitor and develop staffing level and professional judgement tools, including considering whether these tools should be multi-disciplinary. This is to ensure that such a method and tools remain contemporary and fit for practice.

The intention of the duty on relevant organisations to assist HIS in its staffing functions (section 12IT) and the power for HIS to require information from relevant organisations (section 12IU) are to ensure that HIS has appropriate information in order to fulfil its requirements under the Act.

14.5 12IP HIS: monitoring compliance with staffing duties

HIS is required to monitor how relevant organisations have discharged staffing duties required of them under the 1978 Act. These are:

• section 12IA Duty to ensure appropriate staffing, including related duties under section 2 guiding principles;
• section 12IC Duty to have real-time staffing assessment in place;
• section 12ID Duty to have risk escalation process in place;
• section 12IE Duty to have arrangements to address severe and recurrent risks;
• section 12IF Duty to seek clinical advice on staffing;
• section 12IH Duty to ensure adequate time given to clinical leaders;
• section 12II Duty to ensure appropriate staffing: training of staff;
• section 12IJ Duty to follow the common staffing method;
• section 12IL Training and consultation of staff;
• section 12IM Reporting on staffing; and
• section 12IN Ministerial guidance on staffing.

By monitoring relevant organisations' compliance with the Act, HIS will identify areas of good practice, shared learning and improvement support.

The approach to monitoring compliance will be consistent with HIS's organisational approach to quality assurance but must include all aspects of the Act described above and HIS must take into account aspects of this statutory guidance relating to the operation of sections 12IP to 12IU.

In order to monitor compliance by relevant organisations, HIS will need to consider the extent to which these organisations have taken into account relevant measures for monitoring and improving quality of health care. These measures are those published as standards and outcomes by Scottish Ministers (including any measures developed as part of a national care assurance framework).

It is intended that review by HIS of relevant organisations' compliance with the Act, as part of their scrutiny function, will provide additional information to that provided by the organisations in their annual reports. This additional information may inform decisions by Scottish Ministers regarding any intervention required or any decisions relating to policy in health care staffing. It may also provide intelligence that will be useful for HIS in deciding if it may be necessary to review existing, or develop new, staffing level tools, amend the professional judgement tool or the common staffing method.

14.6 12IQ HIS: monitoring and review of common staffing method

HIS is required to monitor, in respect of each type of health care listed in section 12IK, the effectiveness of the common staffing method process described in section 12IJ(2) of the Act and the way in which relevant organisations are using it.

Scottish Ministers can direct HIS to carry out a review of the common staffing method, however in practice it is anticipated that HIS will decide the frequency by which it undertakes a review. The requirement for a review will be considered by assessing the way in which relevant organisations apply the common staffing method; the appropriateness of application of the method for the specified areas of health care, location and employees; and analysing intelligence about decisions being made as a result of application of the method.

When undertaking a review of the common staffing method, HIS must work together with:

• Scottish Ministers;
• Social Care and Social Work Improvement Scotland (the Care Inspectorate);
• every Health Board;
• every relevant Special Health Board;
• every Integration Authority;
• NHS National Services Scotland;
• trade unions and professional bodies that HIS considers to be representative of employees of Health Boards, Special Health Boards, Integration Authorities and NHS National Services Scotland;
• professional regulatory bodies for employees of Health Boards, Special Health Boards, Integration Authorities and NHS NSS that HIS considers appropriate;
• any other providers of health care as HIS considers to have relevant experience of using staffing level and professional judgement tools; and
• any other group or person HIS considers appropriate.

The intention of stakeholder consultation and feedback is to ensure the common staffing method remains contemporary and that it can work in practice across diverse practice settings and staff groups.

In undertaking a review of the common staffing method, HIS must have regard to how the method aligns with the guiding principles for health and care staffing set out in section 1 of the Act. The intention of this is to ensure that the common staffing method supports relevant organisations to fulfil their requirements to ensure appropriate staffing as defined in the Act. In recommending changes, HIS may take into account the revision of existing, or development of new, staffing level or professional judgement tools.

Having completed a review of the common staffing method, HIS may recommend changes to the common staffing method to Scottish Ministers. To do this it must submit a report to Scottish Ministers which includes a summary of the review it has carried out, recommendations for changes, and reasons for these.

Having submitted this report to Scottish Ministers, HIS must then publish it. The purpose of this process is to ensure any review of the common staffing method is comprehensive, inclusive, and transparent, and to assure Scottish Ministers that the common staffing method is contemporary and fit for purpose.

14.7 12IR HIS: monitoring and development of staffing tools

HIS is required to monitor the effectiveness of any staffing level and professional judgement tools prescribed by the Scottish Ministers. Where it is considered that any staffing level or professional judgement tool is no longer effective, HIS must recommend the revocation or replacement of the tool. The purpose of this is to ensure that tools remain contemporary and can reliably inform staffing requirements across diverse practice settings and staff groups.

The frequency of monitoring effectiveness of the tools will be determined by HIS, using intelligence from relevant organisations' experience of using the tools, analysis of tool outputs, and significant policy or practice change in the specialty to which the tool applies. In practice, HIS will routinely review and refresh staffing level and professional judgement tools on a cyclical basis to ensure they remain contemporary and function effectively.

HIS may also develop and recommend to Scottish Ministers new or revised staffing level tools or professional judgement tools for use in relation to any kind of health care provision.

When developing new, or revising existing tools, HIS must work together with:

• Scottish Ministers;
• Social Care and Social Work Improvement Scotland (the Care Inspectorate);
• every Health Board;
• every relevant Special Health Board;
• every Integration Authority;
• NHS National Services Scotland;
• relevant trade unions and professional bodies that HIS considers to be representative of employees of Health Boards, Special Health Boards, Integration Authorities and NHS National Services Scotland;
• Such professional regulatory bodies for employees of Health Boards, Special Health Boards, Integration Authorities and NHS National Services Scotland as HIS considers appropriate;
• any other providers of health care as HIS considers to have relevant experience of using staffing level and professional judgement tools; and
• any other group or person HIS considers appropriate.

The intention of this requirement is to ensure there is appropriate stakeholder engagement, across the relevant sectors, which will in turn ensure tools are contemporary and work across diverse practice settings and staff groups.

In undertaking the collaboration described above, HIS must have regard to such guidance as HIS considers appropriate, published by relevant professional bodies or other relevant bodies, relevant clinical evidence and research, and the guiding principles for health and care staffing set out in section 1 of the Act. The intention of this is to ensure that staffing level and professional judgement tools remain contemporary and appropriate for professional practice, and that they also support relevant organisations to fulfil their requirements to ensure appropriate staffing under the Act.

Scottish Ministers can also direct HIS to develop a new, or to revise an existing, staffing level tool or professional judgement tool. In this case the same process of collaboration described above must be followed. The purpose of this is to ensure that Ministers can prioritise development in line with Scottish Government requirements.

Scottish Ministers may also require that assumptions on certain matters must be made by HIS in making recommendations about the development of new, or revision of existing, tools. The purpose of this is to ensure that such tools take account of staff national policy. An example of such an assumption may be to apply particular predictable absence rates or average bed occupancy levels.

14.8 12IS HIS: duty to consider multi-disciplinary staffing tools

When developing a new or revised staffing level or professional judgment tool, HIS is required to consider whether the tool should apply to more than one professional discipline. The intention of this being to ensure that, where appropriate, the workload of all staff groups providing care in a specialty area is considered for inclusion in the review of existing, or development of new, tools.

Having considered inclusion of additional staff groups in the review of existing, or development of new, tools, HIS can recommend to Scottish Ministers that a staffing level or professional judgement tool should apply to more than one professional discipline. The intention is to ensure that, where appropriate, future tools will be multi-disciplinary in nature. In cases where staffing groups are not included in revision or development of tools, there should be a clearly stated rationale for this.

14.9 12IT HIS: duty on Health Boards to assist staffing functions

Every Health Board, relevant Special Health Board, and NHS National Services Scotland must give such assistance to HIS as it requires to perform its functions under sections 12IP to 12IS the 1978 Act.

14.10 12IU HIS: power to require information

HIS may serve a notice on a relevant organisation to provide information to enable it to carry out its functions under sections 12IP to 12IS of the 1978 Act. This notice will be a written request and must explain why the information is required and for what function and state a date by which it must be provided. The relevant organisation must comply with any notice served on it.

The purpose of this is to ensure that HIS has all the necessary information available to fulfil its functions in sections 12IP to 12IS of the Act effectively, whilst ensuring the information requested is proportionate and relates specifically to fulfilment of HIS's staffing functions in the Act.

14.11 Other relevant guidance and legislation

Inspection and regulation of healthcare services (healthcareimprovementscotland.org)