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

6. Duty to Ensure Appropriate Staffing in Health Care

6.1 Which sections of the Act is this chapter about?

This chapter provides further detail on section 12IA of the 1978 Act, the duty to ensure appropriate staffing (referred to here as the "section 12IA duty"), which is inserted by section 4 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.

6.2 Who does this chapter apply to?

The following organisations must comply with the duty 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.

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

The section 12IA duty applies to all NHS functions provided by all professional (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 the section 12IA duty covered in this chapter remains with the relevant organisation and not with individuals who may be charged with carrying out certain actions.

This chapter will also be applicable to those who are planning or securing the provision of health care from others. Under section 2, relevant organisations, when planning or securing the provision of health care from others, must have regard to the need for the person for whom the provision of health care is to be secured to have appropriate staffing arrangements in place. Guidance on planning or securing provision of health care from others can be found in chapter 5.

6.4 What is this chapter about?

The duty to ensure appropriate staffing in health care services is one of the two 'general' duties created by the Act. The other is the section 7 duty on care service providers to ensure appropriate staffing. The duty to ensure appropriate staffing is to enable the provision of safe and high-quality services which meet the needs of service users 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 and this guidance chapter should be read in tandem with Chapter 4.

Most of the other duties and requirements of section 4 of the Act exist directly to support the delivery of the section 12IA duty. Because of this, relevant organisations must comply with these other duties / requirements in order to comply with the overarching section 12IA duty. The relevant sections of the 1978 Act (all inserted by section 4 of the Act) are all explained in more detail in further chapters of this guidance:

• section 12IB Duty to ensure appropriate staffing: agency workers (chapter 7);
• section 12IC Duty to have real-time staffing assessment in place (chapter 8);
• section 12ID Duty to have risk escalation process in place (chapter 8);
• section 12IE Duty to have arrangements to address severe and recurrent risks (chapter 8);
• section 12IF Duty to seek clinical advice on staffing (chapter 9);
• section 12IH Duty to ensure adequate time given to clinical leaders (chapter 10);
• section 12II Duty to ensure appropriate staffing: training of staff (chapter 11); and
• section 12IJ, 12IK and 12IL Duty to follow the common staffing method, including training and consultation of staff (chapter 12).

The section 12IA duty sits alongside the staff governance, clinical governance and financial governance requirements which already apply to relevant organisations. The duty must be complied with in addition to the existing duty on these organisations in section 12L of the 1978 Act to "put and keep in place arrangements for the purposes of workforce planning".

The Act sets out provision around reporting, on at least a quarterly basis, by individuals with lead clinical professional responsibility for a particular type of health care to members of the relevant organisation in the section 12IF duty to seek clinical advice on staffing. This reporting to include that individual's views as to the relevant organisation's compliance with the duty to ensure appropriate staffing. Reporting on the section 12IA duty will also be required as part of 12IM reporting on staffing.

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

6.5 12IA(1): What is meant by "at all times"?

Health care is a 24/7 service, so 'at all times' should be taken as having its normal, everyday meaning. Peaks and troughs in acuity and demand over any time period (e.g. a day, a week, a year) do not affect the requirement to comply with the duty. Relevant organisations should demonstrate that they have made every effort to adjust staffing accordingly, for example by redistributing staff to areas under greater pressure.

6.6 12IA(1): What is meant by "suitably qualified and competent individuals, from such a range of professional disciplines as necessary, are working in such numbers as are appropriate for…"?

This provision is intended to ensure the right skills mix (both within and between professions), as well as the right numbers of staff, are in place to meet the requirements of the duty.

Relevant organisations 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 health care.

In ensuring these requirements are fulfilled, it would normally be the case that the unique knowledge, skills, competence and capability of each member of staff concerned are respected and that each member of staff is equipped, expected and enabled to work across the breadth of their expertise, to the top of their skill level and to the appropriate professional standards. This does not preclude staff having to work below their skill level on occasion, for example to address a peak in activity, but this should not be the norm. It should also include required qualifications and/or competencies, including those produced by the various Royal Colleges, NHS Education for Scotland and Scottish Government, competency frameworks agreed through local Health Board governance frameworks and other relevant programmes and initiatives that may, from time to time, be applicable.

6.7 12IA(1): What is meant by "the health, wellbeing and safety of patients"?

Staffing should always be available, both in terms of numbers and skills mix, to ensure that patients receiving 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 and outcomes published by Scottish Ministers under the 1978 Act and the Public Services Reform (Scotland) Act 2010.

The duty to ensure the safety of patients is not intended to imply that the relevant organisation(s) are under a duty to remove all risks. The section 12IA duty however requires relevant organisations to have appropriate staffing levels in place to enable provision of safe and high-quality services and so reduce risk to service users.

6.8 12IA(1): What is meant by "the provision of safe and high-quality health 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; risks are an inevitable part of all health care services. In many services, for example where an enablement approach is taken, a level of risk is required and needs to be managed by both service users and staff to support people to achieve outcomes. Positive risks, as defined in the Health and Social Care Standards, mean making balanced decisions about risks and benefits, recognising that risks to safety are inevitable and can sometimes result in benefits.

However, the section 12IA duty requires relevant organisations to have appropriate staffing in place to enable provision of safe and high-quality services, and so reduce risk to service users. Patients / service users should not be put at unnecessary risk as a result of staffing which fails to provide high-quality health care services.

Provision of high-quality health care requires the right people, in the right place, with the right skills at the right time, and with the appropriate amount of time available, to ensure the best health care outcomes for service users.

The provision of high-quality care that is right for the individual service user is also one of the headline outcomes under the Health and Social Care Standards and, as such, the section 12IA duty should be read alongside these. The Standards state that high quality care should include consideration of the dignity and respect of service users, including respect and promotion for their human rights; compassionate care and support; inclusion in care of service users; responsive care which adapts to the needs of the service user; and care which improves wellbeing.

6.9 12IA(1): What is meant by "in so far as it affects either of those matters, the wellbeing of staff"?

The section 12IA duty requires that the wellbeing of staff is considered in so far as it affects staffing for the health, wellbeing and safety of patients and the provision of safe and high-quality health care. In practice, this has wide-ranging effects.

There is a link between the safety of service users 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 patients. 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 patient safety, 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 the relevant organisation(s) have a culture of system improvement rather than blaming individuals. Staff need to 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, relevant organisations must also consider how it 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).

6.10 12IA(2) What do relevant organisations have to have regard to when determining appropriate staffing?

Section 12IA(2) sets out what, at a minimum, relevant organisations should take into account when setting staffing levels so that they comply with the duty to ensure appropriate staffing. In determining what, in a particular kind of health care provision, constitutes appropriate numbers, regard is to be had to:

• the nature of the particular kind of health care provision;
• the local context in which it is being provided;
• the number of patients being provided it;
• the needs of patients being provided it; and
• appropriate clinical advice.

For those areas where the section 12IJ duty to follow the common staffing method also applies, there is clearly an overlap in the list of factors relevant organisations must take into account when implementing the common staffing method, and the factors which they must have regard to when applying the section 12IA duty. Appropriate use of the common staffing method should therefore help relevant organisations demonstrate compliance with the section 12IA duty.

6.11 What is meant by "the nature of the particular kind of health care provision"?

This simply means the different types of health care that any health care service provides, for example, a high dependency unit or a neonatal unit, a service for older people or a service for children, prisoner health care, therapeutic interventions (art and music therapy), hospital at home etc. This covers all types of health care and is not limited to the types of health care listed in the Act in relation to the section 12IJ Duty to follow the common staffing method.

6.12 What is meant by the "the local context in which it is being provided"?

The policy memorandum for the original Bill set out that context could include environmental factors, service delivery models or other factors which may justifiably impact on the number of staff the particular clinical area requires. For example, in a small service a calculation may suggest 1 WTE (whole-time equivalent) is required, however for safety reasons it is likely that 2 WTEs would require to be on shift. Other factors could include, for example:

• Patient demand (both met and unmet);
• Service structures (e.g. the existence of GP clusters or the impact of trauma centres on local services);
• Workforce (e.g. access to consultant-level medical staff or out of hours clinicians);
• Geography (e.g. the impact of delivering services in island communities);
• Socio-economic profile (e.g. access to services by people in areas of multiple deprivation); and
• Clinical (e.g. the particular health needs of a defined community).

This list is not exhaustive but the relevant organisation(s) should be able to demonstrate how local context has been taken into account in setting appropriate staffing.

6.13 What is meant by "the number of patients being provided it"?

Relevant organisation are expected to be able to demonstrate that they have undertaken the necessary analysis of met and unmet need in determining the number of patients requiring provision of any service.

6.14 What is meant by "the needs of patients being provided it"?

No two patients are the same and the outcomes that matter to a particular patient will vary. Those providing health services need to consider patients themselves, rather than just their needs in isolation. For example, this could reflect the range of support the patient has, or does not have, through family, friends and the wider community. Staffing decisions also need to reflect the ability of patients, for example the extent to which they can participate in their own health care needs.

6.15 What is meant by "appropriate clinical advice"?

The provision of clinical advice is central to securing appropriate decision-making and actions that will ensure the health, wellbeing and safety of patients, the provision of safe and high-quality health care and, in relation to these, the wellbeing of staff. This provision in the duty to ensure appropriate staffing underlines the centrality of clinically-informed decision-making to delivering on the intent of the Act.

Relevant organisation(s) have a duty under section 12IF to seek clinical advice in making decisions and putting in place arrangements in relation to staffing for health care under the Act. More detail on the section 12IF duty can be found in chapter 9.

6.16 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, and the Healthcare quality strategy for NHSScotland all continue to apply.

The Scottish Government published the Health and Social Care Standards in June 2017, which set out what the public should expect when using health, social care or social work services in Scotland and should be referred to when determining what constitutes high-quality health care under the section 12IA duty. 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 Health Improvement Scotland, the Care Inspectorate and other scrutiny bodies in relation to inspections and registration of health and care services.