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

3. Introduction

3.1 Introduction

This is statutory guidance ("guidance") issued by the Scottish Ministers under sections 3 and 10 of the Health and Care (Staffing) (Scotland) Act 2019 (referred to throughout the guidance as "the Act"); sections 12IN and 12IV of the National Health Service (Scotland) Act 1978 (referred to throughout the guidance as "the 1978 Act") (inserted by sections 4 and 6 of the Act); and section 82A of the Public Services Reform (Scotland) Act 2010 (inserted by section 12 of the Act). The Act will be fully in force by 01 April 2024 and this statutory guidance will apply from that date.

This chapter provides an introduction to the Act, the full text of which can be found here, and the guidance itself. The guidance will support relevant organisations in meeting requirements placed on them by the Act and by relevant secondary legislation and has been informed by consultation with stakeholders. Links to other relevant publications can be found throughout the document; note that when using these links, individuals should take into account any amendments to publications that have been made since the guidance was published.

Relevant organisations are required to have regard to the parts of the guidance that are applicable to them and the guidance should be read together with the relevant sections of the Act and the associated secondary legislation. The guidance does not constitute legal advice and an organisation should obtain independent legal advice if uncertain about the requirements of the Act.

3.2 The Health and Care (Staffing) (Scotland) Act 2019

The Health and Care (Staffing) (Scotland) Act was passed by Parliament on 02 May 2019 and received Royal Assent on 06 June 2019. The aim of the Act is to provide a statutory basis for the provision of appropriate staffing in health and care services, enabling safe and high-quality care and improved outcomes for service users and people experiencing care. This requires the right people, in the right place, with the right skills, at the right time.

The provisions in the Act build on arrangements already in place for local and national workforce planning and will support a rigorous, evidence-based approach to decision-making relating to staffing requirements and consideration of service delivery models and service redesign. The Act is not prescriptive in stipulating numbers or skill mix of professions, does not prescribe minimum staffing levels or fixed ratios and does not seek to preclude the use of innovative new models of care delivery. Rather it seeks to support local decision-making, flexibility and the ability to redesign and innovate across multi-disciplinary and multi-agency settings.

The Act will also promote transparency in staffing and support an open and honest culture, where staff are engaged in relevant processes, informed about decisions relating to staffing requirements and feel safe to raise any concerns.

3.3 Who does the Act apply to?

The Act places different duties / obligations on different parties, such as:

• Health Boards;
• Special Health Boards providing direct patient care (i.e. the State Hospitals Board, the Scottish Ambulance Service Board, NHS 24 and the National Waiting Times Centre Board);
• the Common Services Agency for the Scottish Health Service (referred to throughout as "NHS National Services Scotland");
• persons providing a care service (a service mentioned in section 47(1) of the Public Services Reform (Scotland) Act 2010);
• local authorities and integration authorities;
• Healthcare Improvement Scotland (referred to in the guidance as "HIS"); and
• Social Care and Social Work Improvement Scotland, referred to throughout this document as the "Care Inspectorate".

The Act also places obligations on the Scottish Ministers, for example in terms of reporting to the Scottish Parliament on staffing in health and care services and in taking reasonable steps to ensure there are sufficient numbers of registered healthcare professionals.

With regard to integration authorities, organisations should be familiar with, and refer to, requirements under the Public Bodies (Joint Working) (Scotland) Act 2014 and the associated statutory guidance to the 2014 Act.

The Act does not list which groups of staff or staff roles are included in the provisions, with the exception of the section 12IJ duty to follow the common staffing method, which is restricted to the types of health care, locations and employees listed in section 12IK of the Act. However we have published a separate comprehensive list of staff roles subject to the 2019 Act. This list does not form part of the statutory guidance but will sit alongside it and be a 'living document' which can incorporate new roles / professions over time as appropriate.

3.4 How is the guidance laid out?

The guidance aims to roughly follow the order of the different requirements as set out in the Act, with the first chapters addressing health care and the following chapters, care services:

• Chapter 4 covers the guiding principles in health care;
• Chapter 5 covers the responsibilities of Health Boards, relevant Special Health Boards and NHS National Services Scotland when planning or securing health care from a third party;
• Chapter 6 covers the duty on Health Boards, relevant Special Health Boards and NHS National Services Scotland to ensure appropriate staffing;
• Chapter 7 covers the duty on Health Boards, relevant Special Health Boards and NHS National Services Scotland to report on the use of high-cost agency workers;
• Chapter 8 covers the duties on Health Boards, relevant Special Health Boards and NHS National Services Scotland to have real-time staffing assessment and risk escalation processes in place, along with arrangements to address severe and recurrent risks;
• Chapter 9 covers the duty on Health Boards, relevant Special Health Boards and NHS National Services Scotland to seek clinical advice on staffing;
• Chapter 10 covers the duty on Health Boards, relevant Special Health Boards and NHS National Services Scotland to ensure that adequate time is given to clinical leaders;
• Chapter 11 covers the duty on Health Boards, relevant Special Health Boards and NHS National Services Scotland to ensure appropriate training for staff;
• Chapter 12 covers the duty on Health Boards, relevant Special Health Boards and NHS National Services Scotland to follow the common staffing method, for the listed types of health care, locations and employees;
• Chapter 13 covers the various requirements on Health Boards, relevant Special Health Boards and NHS National Services Scotland to report on staffing;
• Chapter 14 details the duties of Healthcare Improvement Scotland (HIS);
• Chapter 15 covers the guiding principles in care services, along with the duty on care service providers to ensure appropriate staffing and staff training;
• Chapter 16 covers the responsibilities on local authorities and integration authorities when planning or securing care services from a third party and the associated reporting requirements;
• Chapter 17 details the responsibilities of the Care Inspectorate with regard to developing staffing methods for the care services sector; and
• A glossary of terms used in the guidance can be found at the end.