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

16. Planning or Securing the Provision of Care Services from Others

16.1 Which sections of the Act is this chapter about?

This chapter provides further detail on section 3(2) and (6) 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.

16.2 Who does this chapter apply to?

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

• All local authorities, and
• All integration authorities within the meaning of section 59 of the Public Bodies (Joint Working) (Scotland) Act 2014

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

Health Boards, relevant Special Health Boards and NHS National Services Scotland must comply with a similar duty (found in section 2 of the Act) when planning or securing the provision of health care from others. Further information about this can be found in chapter 5.

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

Section 3(2) applies where a relevant organisation is planning or securing the provision of a care service from a third party. Care services are those listed under section 47(1) of the Public Services Reform (Scotland) Act 2010.

The requirement applies to all functions provided by all staff 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 "working in a care service", which is found in section 11 of the Act, includes working for payment or as a volunteer, and working under a contract of service or 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.

16.4 What is this chapter about?

Section 3(2) of the Act places a requirement on relevant organisations when planning or securing the provision of a care service from third parties to have regard to a number of matters. This means that the new legal framework becomes a relevant part of the planning of such services, as well as their delivery. Section 3(6) of the Act requires relevant organisations to report on how they have complied with this requirement.

16.5 Planning or securing the provision of care services

When relevant organisations plan or secure the provision of a care service from a third party provider, they must have regard to the following:

• the guiding principles in the Act (section 1 of the Act);
• the requirement on care service providers to have regard to the guiding principles (section 3(1) of the Act);
• the duty on care service providers to ensure appropriate staffing (section 7 of the Act);
• the requirement on care service providers with regard to training of staff (section 8 of the Act);
• the requirement on care service providers to have regard to guidance issued by the Scottish Ministers (section 10 of the Act);
• the requirements 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 (chapter 3A is new and was added to the Public Services Reform (Scotland) Act 2010 using the Health and Care (Staffing) (Scotland) Act).

Care service providers already had obligations under Chapter 3 of Part 5 of the Public Services Reform (Scotland) Act 2010. The 2019 Act means these and the new requirements (both in the 2019 Act and inserted into the 2010 Act by the 2019 Act) are a relevant part of the planning of care services, decision-making and selecting and contracting with care service providers. The section 3(2) requirement is deliberately general and flexible to allow for the wide variety of contractual arrangements which it covers.

Guidance on the guiding principles in care service staffing, and the duties of care service providers to ensure appropriate staffing and training can be found in chapter 15.

Requirements of the Act are only one part of a larger commissioning cycle and the many factors that will need to be considered when planning or securing the provision of any particular service. For this reason, this chapter should be read alongside existing guidance on commissioning health and social care services (Strategic Commissioning Plans Guidance).

In practice, relevant organisations will have existing procurement and commissioning strategies in place and it is anticipated that consideration of the above would form part of this existing process.

Examples of evidence relevant organisations might consider when planning or securing services in order to comply with the duty placed upon them include, but are not limited to:

• Care Inspectorate inspection reports for care service providers;
• Care Inspectorate joint inspection reports;
• Care Inspectorate Datastore;
• previous experience of commissioning, or working with, the provider;
• any previous enforcement action;
• evidence of processes in place for the provider to implement the requirements of the Health and Care (Staffing) (Scotland) Act 2019, and
• other relevant inspections and audits.

Such matters should be used in a manner which is compliant with applicable procurement rules.

16.6 Reporting

Section 3(6) of the Act states that relevant organisations must publish information annually on the steps they have taken to comply with the requirement in section 3(2) regarding the planning and securing of care services and any ongoing risks that may affect their ability to comply with this requirement.

In order to promote consistency across all relevant organisations, the Scottish Government will provide a report template for organisations to complete when publishing information under section 3(2).

Information published by relevant organisations under section 3(6) will cover the financial year, i.e. the period from 01 April to 31 March. It must be published as soon as is reasonably practicable after the end of each financial year. No deadline is included in the Act but the Scottish Government has the view that this should be completed by 30 April each year. The most appropriate means to publish the information should be decided by the relevant organisation but it is envisaged this would follow methods used to publish other reports.

16.7 Existing relevant policy, legislation and guidance

The duty to have regard to the Act when planning or securing the provision of care services from a third party sits alongside existing governance requirements. The contents of existing contracts will continue to apply, as will any guidance around these. Whilst this section of the Act does not require commissioners of services to add additional clauses to any standard contracts they use, relevant organisations will need to consider how they stipulate and obtain evidence of appropriate staffing when planning and securing services.