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

5. Planning or Securing the Provision of Health Care from Others

5.1 Which sections of the Act is this chapter about?

This chapter provides further detail on section 2 of the Act: Guiding principles etc. in health care staffing and planning (as they apply to the planning and securing of health care from others)

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.

5.2 Who does this chapter apply to?

The following organisations must comply with the requirements 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.

Local authorities and integration authorities have similar requirements when planning or securing the provision of care services from others and should go to Chapter 16 for guidance.

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

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.

5.4 What is this chapter about?

Section 2(2) of the Act places a requirement on relevant organisations when planning or securing the provision of health care from third parties to have regard to the guiding principles for health and care staffing and the need for that third party to have appropriate staffing arrangements in place. The effect is to make these matters considerations for relevant organisations in their decision-making in planning services, assessing needs, and in selecting and contracting with service providers. This requirement is deliberately general and flexible to allow for the wide variety of legal arrangements which it covers: the Act refers to a "contract, agreement or arrangements".

The aim of this duty is to ensure that patients / service users receive safe and high-quality care and the best outcomes irrespective of whether that care is being provided directly by the relevant organisation, or by a third party on their behalf.

Guidance on the guiding principles for health and care staffing can be found in chapter 4 and guidance on what constitutes appropriate staffing arrangements can be found in chapter 6.

Requirements of the Act clearly encompass only one of the many factors that will need to be considered when planning or securing any particular service and onwards throughout the larger commissioning cycle. As such this chapter should be read alongside existing guidance on commissioning health and social care services ( for example, Strategic Commissioning Plans Guidance).

Sections 2(3) and 2(4) of the Act state that relevant organisations must report annually on the steps they have taken to comply with this requirement. Guidance on this reporting can be found in chapter 13.

5.5 What commissioning arrangements are included?

This section of the Act applies to the planning and securing of any health care by relevant organisations from any third party provider. This could be from a private or third sector provider, from another Health Board or through national agreement. Examples of scenarios covered by this chapter include:

• Relevant organisation has arrangements or contracts with a GP practice to provide GP services;
• Relevant organisation has arrangements or contracts with an independent optometrist / pharmacist / dentist to provide services;
• Relevant organisation commissions health care from a Special Health Board, e.g. from the National Waiting Times Centre; and
• Relevant organisation commissions health care from an independent health care provider, e.g. a private hospital is commissioned to carry out 30 hip operations on behalf of a Health Board.

As the above examples illustrate, as well as the planning or securing the provision of health care from or with an independent health care provider, or another Health Board, this duty also applies to the provision of services to relevant organisations by independent contractors, for example, General Practitioners. The majority of General Practitioners are not employed by Health Boards, but are independent contractors who have agreements with relevant organisations to provide health care to the patients on their lists. Arrangements are also in place for the provision of services by dentists, optometrists, and pharmacists.

The relevant organisation will need to carry out due diligence, as part of planning or securing the service, to consider both the guiding principles and the need for the provider to have appropriate staffing arrangements in place. Examples of factors relevant organisations could consider, where relevant, when planning or securing services, in order to comply with the requirements placed on them include:

• Healthcare Improvement Scotland (HIS) inspection reports for independent health care providers;
• What is known about the particular needs, abilities, characteristics and circumstances of different service users. This could include any equalities or health inequalities impact assessments which have been carried out;
• HIS reports for Health Boards; and
• Other relevant inspections, for example in respect of contractors on the dental lists for their areas, Boards are to inspect (at intervals not exceeding three years) all practice premises located within their areas;

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

The requirement to have regard to the guiding principles and the need for appropriate staffing arrangements when planning or securing the provision of health care from a third party sit alongside the staff governance, clinical governance and financial governance requirements which already apply to relevant organisations.

Whilst the Act does not require relevant organisations to add additional clauses to any standard contracts or agreements they use, relevant organisations will need to consider how they stipulate and obtain evidence of appropriate staffing when commissioning services.

5.6 Other relevant guidance and legislation

The National Health Service (General Medical Services Contracts) (Scotland) Regulations 2018 (legislation.gov.uk) (including relevant amendments)

The National Health Service (Primary Medical Services Section 17C Agreements) (Scotland) Regulations 2018 (legislation.gov.uk) (including relevant amendments)

The National Health Service (General Ophthalmic Services) (Scotland) Regulations 2006 (legislation.gov.uk) (including relevant amendments)

The National Health Service (General Dental Services) (Scotland) Regulations 2010 (legislation.gov.uk) (including relevant amendments)

The National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009 (legislation.gov.uk) (including relevant amendments)