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

15. Duty to Ensure Appropriate Staffing and Guiding Principles in Care Services

15.1 Which sections of the Act is this chapter about?

This chapter provides further detail on the following sections of the Act:

section 1: Guiding principles for health and care staffing as these principles apply to staffing for care services);

section 3: Guiding principles etc. in care service staffing and planning;

section 7: Duty on care service providers to ensure appropriate staffing; and

Part 3, section 8: Training of staff

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.

Note that the duty under regulation 15 (staffing) of the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011 has now been repealed and replaced with the requirements of the Health and Care (Staffing) (Scotland) Act 2019 {this will be done at the point the Act comes into force and this guidance is published}. Whilst the requirements of regulation 15 and the Act are similar, they are not identical and, therefore, care service providers should make themselves aware of the requirements of the Act.

15.2 Who does this chapter apply to?

All those providing a care service listed in section 47(1) of the Public Services Reform (Scotland) Act 2010, (collectively referred to as "care service providers" in this guidance) must comply with the requirements contained in this chapter.

This chapter is also applicable to local authorities and integration authorities when planning or securing the provision of a care service from a third party.

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

Requirements contained in these sections apply to all functions provided by all individuals working in a care service (chapter 3, introduction provides more details on the types of individuals covered by the Act). Note that the definition of those working in a care service (which is found in section 11 of the Act) includes those working for payment or as a volunteer, and working under a contract of service, an apprenticeship, a contract for services or otherwise than under a contract. This is wide-ranging and would include, for example:

• employees of the care service;
• agency and other temporary / contract workers;
• self-employed workers;
• those on apprenticeship schemes and other 'earn as you learn' schemes who are employed by the care service; and
• all volunteers.

Any reference to "staff", "staffing" or "working in a care service" within this chapter includes all these groups of people.

Students should not be considered as "staff" and should be treated as supernumerary when they are participating in a supernumerary placement or are undertaking protected learning time as detailed within the relevant course outline or conditions of employment.

Accountability for all the requirements covered in this chapter remains with the care service provider and not with individuals who may be charged with carrying out certain actions.

15.4 What is this chapter about?

The section 7 duty on care service providers to ensure appropriate staffing is one of the two 'general' duties created by the Act. The other is the section 12IA duty to ensure appropriate staffing in health care. The section 7 duty to ensure appropriate staffing is to enable the provision of safe and high-quality services which meet the needs of people who use them, through having appropriate staffing, with the right person, with the right skills, available in the right place, at the right time to provide care. The 'general' duty to ensure appropriate staffing must be carried out having regard to the guiding principles of the Act.

The guiding principles, alongside the duty to ensure appropriate staffing, underpin the outcomes that the Act is seeking to deliver. They explain what people using care services and those who work in them can expect; the requirements on care service providers; and actions required of those who are involved in making decisions about staffing. The guiding principles have been developed to ensure that decisions made in relation to staffing are aligned with wider health and social care policy.

The other requirement considered in this chapter is section 8 which covers the training of staff, comprising all individuals working in the care service.

15.5 What are the guiding principles in section 1 of the Act?

The Act states that the main purposes of staffing for health care and care services are:

• to provide safe and high-quality services; and
• to ensure the best health care or (as the case may be) care outcomes for people using services.

The Act then lists principles to be met, in so far as they are consistent with these main purposes, when care service providers are arranging appropriate staffing.

15.6 What is meant by "safe"?

When judging whether or not a service is "safe", safe does not mean "no-risk". Depending on the service, safe may not even mean low risk; risks are an inevitable part of all care services. Risk must be managed whilst still ensuring safety. In many services, for example where an enablement approach is taken, a level of risk is required and needs to be managed by both people using the service and staff to support people to achieve outcomes. Positive risks, as defined in the Health and Social Care Standards (paragraphs 2.24 and 2.25), mean making balanced decisions about risks and benefits, recognising that risks to safety are inevitable and can sometimes result in benefits.

However, the Act requires relevant organisations to have appropriate staffing in place to enable provision of safe and high-quality services, and so reduce risk to people using services. People using services should not be put at unnecessary risk as a result of staffing which fails to provide high-quality care services.

It is important to note that while the guiding principles are focused on outcomes for people experiencing care and the reference to "safe" is drafted with those individuals in mind, this cannot be separated from the wellbeing of staff themselves. An unsafe staffing environment can create unsafe services. Conversely, improving the wellbeing of staff can improve the safety, quality of care and experience of people who use services and so the two are inextricably linked. See also 15.13 below about the wellbeing of staff.

15.7 What is meant by "high-quality"?

The provision of high-quality care that is right for the individual experiencing care is one of the headline outcomes of the Health and Social Care Standards and as such the guiding principles should be read alongside these. As these standards make clear, care can only be "high-quality" if it provides support or services that are right for the individual, taking into account their own particular characteristics.

High-quality care, as detailed in the Health and Social Care Standards should include

• consideration of the dignity and respect of people using services, and their carers and representatives where appropriate;
• respect and promotion for their human rights;
• compassionate care and support;
• empowering and enabling individuals experiencing care to be fully involved in all decisions about their care and support;
• responsive care which adapts to the needs of the individual; and
• care which improves wellbeing.

15.8 What principles need to be met in arranging staffing?

The principles to be met are:

• improving standards and outcomes for people using services;
• taking account of the particular needs, abilities, characteristics and circumstances of different people using services;
• respecting the dignity and rights of people using services;
• taking account of the views of staff and people using services;
• ensuring the wellbeing of staff;
• being open with staff and people using services about decisions on staffing;
• allocating staff efficiently and effectively; and
• promoting multi-disciplinary services as appropriate.

All of these principles need to be read in the context of achieving the overarching outcome of safe and high-quality services and ensuring the best care outcomes for people using services. The focus of the guiding principles should always be to look at how these impact on people using services. No one factor is more important than another and they should all be considered together when determining staffing.

15.9 Improving standards and outcomes for people using services

Outcome measures of the quality of services being provided, such as those detailed in the Health and Social Care Standards should be considered; identifying trends, and exploring whether staffing has had an impact. The emphasis should be on identifying how standards and outcomes for people using services could be improved.

15.10 Taking account of the particular needs, abilities, characteristics and circumstances of different people using services

No two individuals using services are the same and the outcomes that matter to a particular person will vary. Care service providers need to ensure a holistic person-centred approach which involves people using services, and / or their representatives (such as those with Power of Attorney) as appropriate, in decision making about meeting their individual needs. This could reflect the range of support the individual has through paid or unpaid care and would be relevant, for example, in ensuring carer involvement in the discharge of cared-for persons from hospital under the Carers (Scotland) Act 2016. Staffing decisions also need to reflect the ability of people using services, for example the extent to which they can participate in their own care needs.

This is in line with the Health and Social Care Standards, examples of which include:

• 2.9 I receive and understand information and advice in a format or language that is right for me;
• 2.11 My views will always be sought and my choices respected, including when I have reduced capacity to fully make my own decisions;
• 2.27 As a child, I can direct my own play and activities in a way that I choose, and freely access a wide range of experiences and resources for my age and stage, which stimulate my natural curiosity, learning and creativity; and
• 5.27 As a child or young person living in a care home, I might need or want to share my bedroom with someone else and I am involved in this decision.

The principles of Getting it right for every child (GIRFEC) would also be applicable here.

15.11 Respecting the dignity and rights of people who use services

People can expect to experience care services which are underpinned by a Human Rights Based approach in which their rights are respected, protected and fulfilled; they are involved in decisions that affect them; informed of their rights and entitlements; and provided with a form of redress if they believe their rights are being denied. People must be treated with dignity and, as far as possible, be in control and able to express themselves about their requirements. This would include involvement of their representatives as appropriate.

For example, the Health and Social Care Standards, state in paragraph 4.1 'My human rights are central to the organisations that support and care for me'. Other publications relevant to an individual could include Adults with Incapacity (Scotland) Act 2000, Children and Young People (Scotland) Act 2014, and the guidance related to the Self-directed Support (Scotland) Act 2013

15.12 Taking account of the views of staff and people using care services

The views of those who work in care services and people who use these services are crucial to ensuring individuals' dignity and rights are respected and standards and outcomes are improved. Care service providers must be able to demonstrate how the views of people who use their service and those working in their service have been gathered and how they have informed decision making.

This reflects existing guidance such as the Codes of Practice for Social Service Workers and Employers - Scottish Social Services Council. This states in paragraph 2.3 that employers will have systems in place to listen to and consider feedback from people who use services, carers and other relevant people, to shape and improve services and the performance of social service workers and in paragraph 2.4 that employers will have systems in place for social service workers to report inadequate resources or difficulties which might have a negative effect on the delivery of care.

15.13 Ensuring the wellbeing of staff

There is a link between the safety of people who use services and the wellbeing of individuals delivering the service. Increased wellbeing of individuals working in care services can reduce sickness absence, burnout and work-related stress, meaning that they are available to care for people using services. Healthy, engaged and well supported people working in care services are also better able to provide safe and high-quality services. In some situations, people working in care services will be working in challenging environments or as lone workers, which can increase risks to their wellbeing. In order to provide safe and high-quality services, appropriate measures and checks need to be in place to achieve and maintain the wellbeing of individuals working in the service.

An environment where people working in care services feel able to raise issues about the safety of people using services, mistakes or areas of concern is vital to their wellbeing. This involves creating a culture of transparency, continuous improvement and open communication and an environment where it is clear to individuals working in the care service that the relevant care service provider(s) have a culture of system improvement rather than blaming individuals. Individuals working in care services need to feel safe to raise concerns at all times regarding any risks resulting from staffing.

15.14 Being open with staff and people using care services about decisions on staffing

As well as taking into account the views of those working in and using care services, care service providers must be open with those individuals about decisions on staffing. Care service providers should foster the development of an open culture which allows and encourages those who work in the service to raise issues and be supported in finding new ways to overcome risks without fear of adverse consequences.

15.15 Allocating staff efficiently and effectively

Staffing arrangements should allocate individuals who work in a care service so they have the greatest impact on providing safe and high-quality services that result in the best outcomes for people using them. This could include effective rostering and allocation systems which ensure people with the right knowledge and skills are in the right place at the right time to meet the needs of people using the service. It could also include matching the abilities and skills of individuals working in the service to the needs and choices of individuals using the service.

15.16 Promoting multi-disciplinary services as appropriate

Staffing arrangements should promote a multi-disciplinary approach where this is appropriate to meet the needs of people using the service. This may involve multi-disciplinary teams working within the service, or coordination with others out with the service, such as district nursing teams, GP's or Allied Health Professionals (AHP's). The definition of multi-disciplinary services provided in this section of the Act makes it clear that this refers to care services delivered together by individuals from different professional disciplines. This may, or may not, be in close proximity, but always in collaboration.

This principle should not be interpreted as requiring care service providers to prioritise multi-disciplinary services over and above other services, or where this is not deemed appropriate. This principle must be consistent with the main purposes of the guiding principles, namely the provision of safe, high-quality services and to ensure the best care outcomes for people using those services. Care service providers should consider multi-disciplinary service models as well as profession-specific models in terms of opportunities / benefits when deciding what is suited to the needs of the person receiving care. Again this aligns with the Health and Social Care Standards, which state in, for example in 1.13 'I am assessed by a qualified person, who involves other people and professionals as required' and 2.26 'I know how different organisations can support my health and wellbeing and I am helped to contact them if I wish'.

The unique role of each profession in the multi-disciplinary service should continue to be recognised and promoted within the context of ensuring the highest quality of care is provided to people using the service. This consideration is central to determining whether or not the involvement of another discipline from the multi-disciplinary team is "appropriate" or not. Where it is not deemed appropriate, best practice would be to provide clear rationale for the decision-making.

15.17 How are the guiding principles applied in care services (section 3 of the Act)?

Section 7 of the Act imposes a general duty on care service providers to ensure appropriate staffing. Section 3 states that in carrying out this duty every provider must have regard to the guiding principles. This means that whenever care service providers are putting in place staffing arrangements to comply with the duty to ensure appropriate staffing, they must take into account the guiding principles.

Section 3 also makes provision in relation to the planning or securing of care services by local authorities and integration authorities. In planning or securing care services from another person under a contract, agreement or other arrangements, these organisations must have regard to:

• the guiding principles in the Act;
• the duty of care service providers to have regard to the guiding principles in ensuring appropriate staffing;
• the duty of care service providers to ensure appropriate staffing;
• the requirements on care service providers relating to training of staff;
• the requirement that care service providers have regard to guidance issued by the Scottish Ministers;
• the duties on care service providers under Chapter 3 of Part 5 of the Public Services Reform (Scotland) Act 2010, for example with regard to registration of care services; and
• the duties on care service providers under Chapter 3A of Part 5 of the Public Services Reform (Scotland) Act 2010, for example with regard to the use of any prescribed staffing methods or staffing tools. Note that the Health and Care (Staffing) (Scotland) Act inserted chapter 3A into the Public Services Reform (Scotland) Act.

Local authorities and integration authorities must publish an annual report on how they have carried out the requirements regarding planning and securing care services from another person. Further detail about this and these reports can be found in chapter 16.

15.18 Section 7 – duty on care service providers to ensure appropriate staffing

This section places a duty on care service providers to ensure appropriate staffing for the health, wellbeing and safety of people using the service, the provision of safe and high-quality care and, in so far as it affects either of those matters, the wellbeing of staff.

What follows is more detailed guidance on the meaning of the language in the Act, which will support its effective application in practice by care service providers.

15.19 What is meant by "at all times"?

Care can be a 24/7 service, so 'at all times' should be taken as having its normal, everyday meaning. The changing needs of people who use services over any time period (e.g. a day, a week, a year) do not affect the requirement to comply with the duty. Care service providers must demonstrate that they have made every effort to adjust staffing accordingly.

15.20 What is meant by "suitably qualified and competent individuals are working in such numbers as are appropriate for…"?

This provision is intended to ensure there are sufficient staff providing care, with the appropriate knowledge, skills and competence to meet the needs of people experiencing care.

Care service providers should be able to demonstrate clearly that they have considered the levels of practice, training, education, experience and professional regulatory responsibilities of all of the staff within a team providing care.

In ensuring these requirements are fulfilled, it would normally be expected that the unique knowledge, skills, competence and capability of each member of staff are respected and that each member of staff is equipped, enabled and has the support to work to the top of the skill level for the role they are employed to do.

This should also include required qualifications and/or competencies, including those produced by regulatory bodies, professional organisations, Scottish Government and other relevant programmes and initiatives that may, from time to time, be applicable to the function of the role.

15.21 What is meant by "the health, wellbeing and safety of service users"?

Staffing should always be available, both in terms of numbers and skills mix, to ensure that people experiencing care achieve their best possible health and wellbeing outcomes. This should be read in the context of the national health and wellbeing outcomes framework and the Health and Social Care Standards, along with other standards published by the Scottish Ministers under the Public Services Reform (Scotland) Act 2010.

The duty to ensure the safety of people experiencing care is not intended to imply that care service providers are under a duty to remove all risks; risk enablement is important. The section 7 duty however requires care service providers to have appropriate staffing levels in place to enable provision of safe and high-quality services and so reduce risk to people experiencing care.

15.22 What is meant by "the provision of safe and high-quality care"?

When judging whether or not a service is "safe", safe does not mean "no-risk". Depending on the service, safe may not even mean low risk. Risk enablement is important and risks are an inevitable part of most care services. Positive risks, as defined in the Health and Social Care Standards sections 2.24 and 2.25 means making balanced decisions about risks and risk management and recognising that risks to safety are inevitable and can sometimes result in benefits. However, people experiencing care should not be put at unnecessary risk as a result of staffing which fails to provide high-quality care services.

Provision of high-quality care requires the right people, in the right place, with the right skills at the right time, with the appropriate amount of time available, reflecting individual care needs, to ensure the best care outcomes for those experiencing care.

The provision of high-quality care that is right for the individual using the service is also one of the headline outcomes under the Health and Social Care Standards and, as such, the duty to ensure appropriate staffing should be read alongside these. As those standards make clear, care can only be "high-quality" if it provides support or services that are right for the person experiencing care, taking into account their own particular characteristics. High quality care should include consideration of the dignity and respect of the person experiencing care, including respect and promotion for their human rights; compassionate care and support; inclusion in care of those using the service, along with their carers and representatives as appropriate; responsive care which adapts to the needs of the person; and care which improves wellbeing.

15.23 What is meant by "in so far as it affects either of those matters, the wellbeing of staff"?

The duty requires that the wellbeing of staff is considered in so far as it affects staffing for the health, wellbeing and safety of those experiencing care and the provision of safe and high-quality care. In practice, this has wide-ranging effects.

There is a link between the safety of people experiencing care and the wellbeing of staff delivering the service. Increased staff wellbeing can reduce sickness absence, burnout and work-related stress, meaning that staff are available to care for people. Healthy, engaged staff are also better able to provide safe and high-quality services. In some situations, staff will be working in challenging environments or working as lone workers. In order to provide safe and high-quality services, checks need to be in place to maintain staff wellbeing.

An environment where staff feel able to raise issues with the safety of those experiencing care, mistakes, or areas of concern is vital to the wellbeing of staff. This involves creating a culture of transparency, continuous improvement and open communication and an environment where it is clear to staff that care providers have a culture of system improvement rather than blaming individuals. Care service providers should ensure that staff feel safe to raise concerns about the risks resulting from staffing at all times.

As noted above, the duty to ensure appropriate staffing sits in the context of the guiding principles. However, care service providers must also consider how it also sits alongside existing requirements in relation to the health, wellbeing and safety of staff (e.g. health and safety law, a contract of employment, or a local agreement between staff and an employer).

15.24 What do care service providers have to have regard to when determining what constitutes appropriate staffing?

Section 7(2) sets out what, at a minimum, care service providers should take into account when assessing staffing levels so that they comply with the duty to ensure appropriate staffing. These factors comprise:

• the nature of the care service;
• the size of the care service;
• the aims and objectives of the care service;
• the number of service users; and
• the needs of service users.

15.25 What is meant by "the nature of the care service"?

Care services covered by the Act are those listed in section 47(1) of the Public Services Reform (Scotland) Act 2010. This comprises a wide variety of service types. Clearly the provision of appropriate staffing will differ and will need to be tailored to the specific nature of the care service being provided

15.26 What is meant by "the size of the care service"?

In determining staffing requirements, it is important to ensure that the local context in which the service is being delivered and any impact of this on staffing requirements is considered. An example of this may be that a small service may only require one person on duty at any one time in terms of workload, but for health and safety reasons or as a condition of registration, there requires to be two staff on duty at all times.

Another may be that the service is delivered over a large geographical area and therefore travel time between people experiencing care is longer, which would have an impact on staffing. The layout of the building, for example care delivered across multiple floors, may also impact on staffing requirements and would need to be considered.

There are many other examples where size and local context may have an impact on staffing requirements but relevant care service providers should be able to demonstrate how local context has been taken into account in determining staffing, alongside non-staffing solutions to logistics and communication.

15.27 "the aims and objectives of the care service"

Staffing within the care service should be sufficient to ensure the objectives and outcomes for individuals using the service can be met. Currently, to register with the Care Inspectorate, care services are required to have aims and objectives agreed. These would include the type of care and support they are registered to provide e.g. short breaks, care for people living with dementia etc.

15.28 "the number of service users"

Care service providers are expected to be able to demonstrate that they have undertaken the necessary assessment of care provision for individual people within the care service, and analysis of met and unmet need in determining the number of people requiring provision of any service.

15.29 "the needs of service users"

No two people are the same and the outcomes that matter to an individual will vary. A holistic person-centred approach should be taken which involves people experiencing care in making decisions about their care and support. For example, it is expected that the range of paid and unpaid care an individual has is supported and that known risks and the preferences of the person receiving care are incorporated. Decisions about staffing levels, skill mix and deployment also need to reflect an asset-based approach which includes the ability of people using the service, for example the extent to which they can participate in their own health or care needs. An asset-based approach aims to nurture, sustain, protect and build the assets in every individual, in order to improve people's life chances and enhance positive health and wellbeing.

15.30 Section 8 – training of staff

Care service providers must ensure that individuals working in the care service receive appropriate training for the work they are to perform and suitable assistance, including time off work, to obtain further qualifications appropriate to their work.

15.31 Other relevant guidance and legislation

The Health and Social Care Standards, the principles set out in section 4 of the Public Bodies (Joint Working) (Scotland) Act 2014, the Public Services Reform (Scotland) Act 2010 and the Care Inspectorate Quality Framework all continue to apply.

Scottish Government published the Health and Social Care Standards in June 2017, which set out what people should expect when using health, social care or social work services in Scotland. The standards seek to provide better outcomes for everyone, to ensure that individuals are treated with respect and dignity, and that the basic human rights we are all entitled to are upheld. The objectives of the standards are to promote improvement, encourage flexibility and enable innovation in how people are cared for and supported. All services and support organisations, whether registered or not, should use the standards as a guideline for how to achieve high quality care. From 1 April 2018, the standards have been taken into account by the Care Inspectorate, Health Improvement Scotland and other scrutiny bodies in relation to inspections and registration of care services.

The Care Inspectorate has published guidance on staffing, see Safe Staffing Project | Care Inspectorate Hub for further details.