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

8. Real Time Staffing Assessment and Risk Escalation

8.1 Which sections of the Act is this chapter about?

This chapter provides further detail on the following sections of the 1978 Act, each of which are inserted by section 4 of the Act:

section 12IC: Duty to have real-time staffing assessment in place (referred to as "section 12IC duty");

section 12ID: Duty to have risk escalation process in place (referred to as "section 12ID duty"); and

section 12IE: Duty to have arrangements to address severe and recurrent risks (referred to as "12IE duty").

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.

8.2 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.

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

Duties contained in these sections apply to all NHS functions provided by all professional disciplines (chapter 3, introduction provides more details on professional disciplines covered by the Act). They are 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.

Under professional codes of conduct, all staff have a responsibility to identify and escalate any concerns or risks. Under the Act, relevant organisations must encourage and enable staff to identify and escalate risks caused by staffing levels. Individuals in leadership / management positions then also have a role in mitigating and managing risks, including escalation up through the organisation as appropriate. Under the section 12IH duty to ensure adequate time given to clinical leaders, relevant organisations must provide individuals with lead clinical professional responsibility for a team of staff with sufficient time and resources to do this, alongside their other professional duties.

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.

8.4 What is this chapter about?

The purpose of the duties under sections 12IC, 12ID and 12IE of the 1978 Act is to ensure that relevant organisations have in place robust arrangements to deliver the duty to ensure appropriate staffing in the day-to-day running of all NHS services. This will be assessed through effective identification, reporting, escalation and mitigation of risks caused by staffing numbers and skill mix which are below that required to meet patient or service user need.

Whilst these duties will help inform longer term planning of staffing, and ultimately inform workforce planning at a local and national level, this is not the sole aim. The duties are also intended to go beyond an annual setting of staffing, to support a dynamic, real-time staffing response to emerging and actual risks to the safety and quality of care being provided to patients and service users. This is essential if the legislation is to have the desired effect.

As noted in the guidance chapters on the guiding principles in health care and on the section 12IA Duty to ensure appropriate staffing, risk is an inevitable part of all health care and care services, but requires to be mitigated as far as is possible to enable provision of safe and high-quality services.

The provision of clinical advice is central to ensuring appropriate decisions on managing staffing risks which could impact negatively on:

• 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.

Specific provisions around clinical advice in this chapter should be read alongside guidance on the section 12IF duty to seek clinical advice on staffing (see chapter 9).

The Act sets out provision around reporting, on at last 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, including on that individual's views as to the relevant organisation's compliance with its duties under section 12IC (duty to have real time staffing assessment in place), section 12ID (duty to have risk escalation process in place), and 12IE (duty to have arrangements in place to address severe and recurrent risks. Relevant organisations will also have to include an assessment on how they have carried out these duties in their annual report to the Scottish Ministers under section 12IM reporting on staffing.

8.5 Applying duties in relation to "arrangements"

Under the Act, relevant organisations have a duty to put in place arrangements for:

• the real-time assessment of its compliance with the section 12IA duty to ensure appropriate staffing (section 12IC);
• the escalation of risks identified during real-time assessment of staffing levels that were not possible to mitigate (section 12ID); and
• collating information on escalated risks and identifying and addressing risks considered to be severe and / or recurrent (section 12IE).

Both real-time staffing assessments and risk escalation arrangements (including arrangements for severe and recurrent risk) are intended to support the delivery of the section 12IA duty to ensure appropriate staffing at all times. These arrangements are required to be in place and maintained with the express purpose of ensuring appropriate staffing for:

• the health, wellbeing and safety of service users;
• the provision of safe and high-quality health care; and
• in so far as it affects either of those matters, the wellbeing of staff.

As such, complying with the Act in relation to real-time staffing assessment and risk escalation will not be met simply by having processes in place, but by demonstrating that these are embedded in practice and inform staffing discussions and decisions to effectively support delivery of the section 12IA duty to ensure appropriate staffing.

Rather than prescribing specific arrangements, the Act allows for a level of local flexibility. This permits relevant organisations to build on their own existing local processes and acknowledges that, for example, what is appropriate for urban and for rural organisations may be different. Whilst the Act sets out minimum requirements in relation to arrangements, this guidance sets out further information on how organisations should interpret and monitor risk and what should be included in all processes. This will provide a level of national assurance and consistency, whilst continuing to allow organisations to account for local context.

Whatever arrangements are put and kept in place, best practice would be for them to:

• be developed with staff, including the full engagement of local and/or area clinical and partnership forums, clinical governance committees and risk management committees in line with current clinical and staff governance guidance;
• be agreed, and regularly reviewed, at board level in the relevant organisation(s), with the opportunity for board-level clinical leaders to note any opposition to the arrangements, in keeping with other provisions of the Act; and
• be communicated in clear and accessible language to all staff.

These requirements should be considered within the context of existing governance structures and processes within relevant organisations, which may already fully support delivery of the duties in the Act, or could easily be amended to do so. Where structures and processes do not exist or are insufficient, new ones must be designed and implemented in line with the Act and this accompanying guidance.

The expectation is that staffing assessment and risk escalation arrangements, once agreed, should be set out and readily available to staff. This includes the relevant organisation's agreed arrangements for all elements, including but not limited to:

• risk identification;
• risk notification;
• discharging the roles of an individual with lead professional responsibility, a senior decision-maker (e.g. local guidance on who these are in particular circumstances), and the board;
• risk assessment;
• giving clinical advice;
• escalation of risks;
• arrangements for the identification, notification and mitigation of severe and recurrent risk (e.g. indication and examples of the types of risks which should be reported straight to board level);
• arrangements for the collation of risk data over time to allow identification of recurrent risk (e.g. the level at which risks identified are escalated to, and will be collated by, the relevant organisation);
• decision-making (e.g. how disputes should be handled, how staff will be notified and how individuals can challenge decisions and request review);
• mitigating actions;
• staff feedback (e.g. specific detail on timings and methods for feedback);
• encouraging and enabling staff to use the arrangements (e.g. expectations for how staff will support this throughout the organisation);
• raising awareness among staff of arrangements (e.g. how this will be incorporated in induction for new staff, for those who are taking on new responsibilities linked to risk assessment and escalation, and when any changes are made to arrangements); and
• ensuring time and resource is available to those with particular responsibilities in assessing and mitigating risk (e.g. by making clear links to the relevant organisation's duties under the section 12IH duty to ensure adequate time given to clinical leaders and the section 12II Duty to ensure appropriate staffing: training of staff).

It is expected that the quarterly reports on compliance under the section 12IF duty to seek clinical advice on staffing would include a review of whether there are any issues with arrangements. Actions to review the arrangements should be taken forward on the basis of recommendations made by the lead clinical professional(s) making that report and feedback from staff who are using it on a daily basis.

8.6 Who is "an individual with lead professional responsibility (whether clinical or non-clinical)"?

Under section 12IC (duty to have real-time staffing assessment in place) and 12ID (duty to have risk escalation process in place), individuals with lead professional responsibility (whether clinical or non-clinical) have specific responsibilities for the mitigation and escalation of risks identified by members of staff.

Within this part of the Act, an individual with lead professional responsibility (whether clinical or non-clinical) is someone who has a leadership role in a particular setting in relation to staffing.

An individual with lead professional responsibility will be dependent on the local context in which the service is operating and on the professional and clinical governance structures in place within the organisation. An individual should however be of sufficient seniority and have an agreed understanding within the organisation, supported by the relevant organisation's arrangements, of their authority to act to mitigate identified risk(s).

Examples of who this may be in practice are given below, however this list is not exhaustive:

• the senior charge nurse or team leader of a nursing team or their deputy in charge of the shift;
• the consultant in charge of a medical team or delegated individual in charge for the day;
• the AHP team leader or delegated deputy;
• the operational / general manager of a team or service; and
• team leader of a multi-agency team.

The Act has been drafted to allow for more than one person to have lead professional responsibility in any given setting. For example, a consultant in charge, a general manager or a senior charge nurse to receive notification of risk on a particular ward and act appropriately to assess, mitigate, accept or escalate risks arising and record as necessary their decision and/or action. The relevant organisation's arrangements should set out clearly how staff will know who to notify, and the process for managing communication and disagreement effectively between different individuals with lead professional responsibility in any setting.

Different sections of the Act describe different types of leadership relevant to the duties set out in the legislation:

• section 12IC duty to have real-time staffing assessment in place and 12ID duty to have risk escalation process in place – "individual with lead professional responsibility (whether clinical or non-clinical)";
• section 12IH duty to ensure adequate time given to clinical leaders – "individual with lead clinical professional responsibility for a team of staff". This individual must be a clinician; and
• section 12IF duty to seek clinical advice on staffing and section 12IJ duty to follow the common staffing method – "individual with lead clinical professional responsibility for the particular type of health care". This individual must also be a clinician.

There may be times when these leaders may be the same individual; however this is not necessarily the case.

8.7 Who can provide "appropriate clinical advice"?

Individuals with lead professional responsibility (whether clinical or non-clinical), where involved in the mitigation of staffing risk, and more senior decision-makers reaching a decision on risk, must "seek and have regard to appropriate clinical advice, as necessary…". This will be necessary when the lead professional or more senior decision-maker:

• is not a clinician;
• is assessing risk, or making a decision, in relation to a clinical workforce for which they are not professionally responsible; and/or
• is making a decision in a speciality/setting in which they are not an expert and/or do not normally work.

Clinical advice will be "appropriate" when it is relevant to the particular risk, and is provided by an individual with clinical expertise in the relevant clinical area and responsibility for the particular clinical workforce engaged in the risk.

Clinical advice may need to be sought from more than one individual. The lead professional / more senior decision-maker must have regard to this advice and, where it is conflicting, should use their professional judgement to make a decision to mitigate, escalate or accept the identified risk(s). For escalated risks, the clinician providing clinical advice may record disagreement with that decision and request a review from any decision-maker up to, but not including, members of the relevant organisation.

8.8 Who constitutes a "more senior decision-maker"?

A more senior decision-maker is the individual who receives notifications of risk once they have been escalated by the individual with lead professional responsibility. Decision-makers can keep escalating risks to a "more senior decision-maker" up to the level of the board of the relevant organisation(s), as appropriate. The intent is that decision-making on risk takes place at appropriate levels within the relevant organisation.

Who constitutes a "more senior decision-maker" will be dependent on the local context in which the service is operating and on the professional and clinical governance structures in place within the organisation. An individual should however be of sufficient seniority and have an agreed understanding within the organisation, supported by the relevant organisation's arrangements, of their authority to act to mitigate identified risk(s).

Examples of who this may be in practice are given below, however this is not an exhaustive list:

• a clinical nurse manager or associate director of nursing;
• a clinical director or associate medical director;
• clinical midwifery manager or head of midwifery;
• the head of an AHP department or director of AHPs;
• a service manager or a general manager in either a hospital or community setting; and
• the Chief Operating Officer or general manager of a hospital or community team.

The individual with lead professional responsibility and each more senior decision-maker will need to assess how far through the professional or management structure to escalate a risk, at each step, depending on the severity and/or repeated nature of the identified risk and, at times (e.g. out of hours), the availability of staff. The relevant organisation's arrangements should support decision-makers in applying their professional judgement to individual circumstances.

The relevant organisation's arrangements must set out clearly how staff will know who to escalate to, and the process for decision-makers to assess and act on escalated risk.

8.9 What constitutes "awareness-raising"?

Relevant organisations are under a duty to raise awareness of the real-time staffing assessment and the risk escalation arrangements among all staff.

Although it is imperative that relevant organisations focus resources on awareness raising, such as written and online internal communication, presentations and discussions at the point of implementation, this duty is not time limited. As such, a rolling programme of information and updates will be required to keep both existing and new staff up to date.

8.10 What constitutes "encouraging and enabling staff"?

Relevant organisations are under a duty to both encourage and enable staff to use the real-time staffing arrangements. Relevant organisations should be able to demonstrate active, ongoing promotion of the arrangements to all staff and will need to emphasise the importance of staff identifying and notifying risks in a timely manner so that the relevant organisation can deliver safe, high-quality patient care. A culture of transparency, continuous improvement and open communication – set from the top of the relevant organisation(s) - will support staff to feel safe to raise concerns about risk resulting from staffing. Ongoing feedback to staff on decisions made, and on the impact of these on the safety and quality of care, will also encourage staff to continue to notify risks.

Enabling staff to use the arrangements will require relevant organisations to:

• have in place easy access to the agreed arrangements in clinical settings;
• systems for notifying risks which are accessible to frontline staff in real time; and
• time available on any shift for staff to notify concerns, engage in mitigation effectively and consider feedback.

8.11 What constitutes "adequate time and resources"?

Relevant organisations must ensure individuals with lead professional responsibility, and more senior decision-makers, have adequate time and resources to discharge their functions around risk. For clinical staff, this duty should be read alongside the guidance on the section 12IH duty to ensure adequate time given to clinical leaders (see chapter 10), which provides guidance on adequate time and resources.

For those individuals who are not "clinical leaders" (as referred to in the section 12IH duty to ensure adequate time is given to clinical leaders), relevant organisations must ensure individuals have the time and resources to carry out their responsibilities in relation to staffing-related risks. This is necessary for the relevant organisation to assure itself that it is appropriately supporting these staff to play their part in meeting the organisation's legal duties.

8.12 What constitutes "training"?

Training duties in these sections of the Act refer to:

• training for individuals with lead professional responsibility (whether clinical or non-clinical) in how to implement the relevant organisation's real-time staffing arrangements covering:
  • risk identification by staff;
  • risk notification by staff;
  • mitigation of risk;
  • seeking clinical advice in relation to mitigation;
  • staff awareness raising; and
  • encouraging and enabling staff to use the arrangements on risk identification and notification;
• training for individuals with lead professional responsibility (whether clinical or non-clinical), and more senior decision-makers, in the relevant organisation's risk escalation arrangements covering:
  • risk reporting, onward reporting and further escalation;
  • seeking clinical advice;
  • mitigation of risk;
  • notification of decisions;
  • recording disagreement with a decision;
  • requesting review of a final decision; and
  • raising staff awareness.

Although not explicit in the Act, the expectation is that training in the relevant organisation's real-time staffing assessment and risk escalation arrangements would include training in identifying and addressing risks which are classified, by the relevant organisation, as severe and/or recurrent.

The effective and efficient application of these arrangements is essential to the Act's aim of ensuring appropriate staffing at all times. This should hold even if a relevant organisation is using current procedures as the basis for compliance, as the particular duties of the Act will still require understanding among those with responsibilities for delivery around real-time risk management.

The duty to train relevant staff is not time limited. As such, a rolling programme of training will be required to keep both existing and new staff up to date.

8.13 How should powers to disagree with a decision be actioned?

Any staff involved in relation to the real-time staffing assessment or risk escalation in:

• identifying a risk;
• attempting to mitigate a risk;
• giving clinical advice in relation to mitigation of risk;
• reporting a risk (including onward reporting), or
• giving clinical advice on a risk;

must be notified of every decision made and the reasons for it. Relevant organisations should put in place arrangements for this.

Where staff disagree with that decision, they may formally record it and may choose to request a review of the decision. The only exclusion from this is where the final decision has been made by the members of the relevant organisation: these decisions may not be reviewed at the request of individual staff. The relevant organisation's arrangements should set out how staff can record disagreement and formally request a review (see also 12F duty to seek clinical advice on staffing for information on recording and explaining decisions with conflict with clinical advice). It would be good practice for a relevant organisation to review the numbers and reasons for formal disagreements as part of governance arrangements.

Relevant organisations should have a template for recording disagreement, which will protect staff who choose to raise objections formally.

8.14 What factors should be considered when assessing real-time staffing requirements?

This section of the guidance is intended to support relevant organisations in setting out what individuals with lead professional responsibility (referred to here as "lead professional"), more senior decision-makers and the board of the relevant organisation should consider when assessing risk caused by staffing levels. It should also support the relevant organisation to consider how they will set thresholds for risks being identified as severe or recurrent. The list of factors below was developed by the Scottish Government, in collaboration with clinical and workforce representatives, during the parliamentary passage of the Health and Care (Staffing) (Scotland) Bill.

Where the lead professional / decision maker is not a clinician and/or where decisions are being made in relation to a workforce for which the lead professional / decision-maker is not professionally responsible, that individual must seek and have regard to clinical advice from an appropriate person. Who these persons may be is set out more fully in chapter 9 and in 8.7 above.

When assessing actual or potential risks arising, the relevant organisation should take account of, but not limit their consideration to, the following factors:

• Workforce:
  • assessment of number of staff on duty;
  • identification and planning for known roster/rota gaps in all staff groups (e.g. staff on training);
  • assessment of skills and experience of staff on duty including capacity and capability of staff to undertake role e.g. restricted duties, mental and physical wellbeing of staff on duty;
  • consideration of appropriate roster management;
  • consideration of impact of supplementary staffing;
  • location of staff on duty e.g. in community geographical spread of visit;
  • consideration of impact of staffing deficits in relevant staff groups across the multi-disciplinary team e.g. AHP or medical support available in a general ward, or support available for clinicians to perform clinical interventions or procedures;
  • consideration of the regulatory requirements for staff; and
  • ability to fulfil time and resource requirements for clinical leadership roles.
• Workload:
  • the number, dependency, acuity and complexity of patient/service users who require care;
  • staff workload across sectors, where services are delivered across acute and primary care services e.g. maternity services, or the impact on community nursing or AHP workload to support earlier discharge from hospital;
  • any specific clinical issues which increase staffing requirements, including, but not limited to, infection, pandemic, specialist clinical interventions, high level of child protection cases, winter pressures, enhanced supervision requirements for service users, number of patients with cognitive impairment, high levels of discharge from acute to primary care settings, high levels of palliative care patients/service users in the community;
  • any escorting or transfer requirements;
  • cross cover arrangements for other clinical areas and sites;
  • the impact of unplanned staff leave or absence;
  • the location and spread of the service user group in the community and the impact of this on staff travel time; and
  • skills deficits.
• Environmental concerns:
  • infection control restrictions;
  • consideration of the impact of any equipment / systems failures / availability;
  • the physical environment e.g. single rooms / temporary wards etc.;
  • any workplace disruption e.g. planned building works or emergency repairs;
  • any travel disruption e.g. weather, roadworks; and
  • consideration of staff with caring responsibilities e.g. impact of school or day centre closures or reduced social care due to adverse weather etc.

8.15 What factors should be considered in the risk mitigation process?

This section of guidance is intended to support relevant organisations in setting out what individuals with lead professional responsibility (referred to here as "lead professional"), more senior decision-makers and the board of the relevant organisation should consider when mitigating risk. The following list of factors was developed by the Scottish Government in collaboration with clinical and workforce representatives, during the parliamentary passage of the Health and Care (Staffing) (Scotland) Bill. .

Where the lead professional / decision-maker is not a clinician and/or where decisions are being made in relation to a workforce for which the lead professional / decision-maker is not professionally responsible, that individual must seek and have regard to clinical advice from an appropriate person. Who these persons may be is set out more fully in chapter 9 and in 8.7 above.

When mitigating actual or potential risks arising, the relevant organisation could consider, but not limit their consideration to, the following factors:

• Immediate (on the day) including out of hours and weekends:
  • any need for staff redeployment between clinical areas, taking into account the need to ensure redeployed staff have the appropriate skills and knowledge in the area they are being moved to;
  • the use of any supplementary staffing;
  • any need for reduction in clinical activity (elective activity / planned community visits);
  • any need to transfer clinical activity (emergency admission divert / divert activity to different teams in the community or different acute sites);
  • the prioritisation of clinical workload (e.g. prioritising admission avoidance / supported discharge / palliative care and child protection activity); and
  • the acceptance of all or part of the risk(s).
• Short term (approximate timescale of 1 week):
  • any known short term absence beyond immediate;
  • any known increased patient/service user dependency;
  • the need to redeploy staff with appropriate skills and knowledge for a period of time where risk is known to be sustained for a few days; and
  • any environmental factors which have been identified during the assessment and are thought to be short term e.g. bad weather or equipment / systems failures that can be corrected quickly.
• Medium term (approximate timescale of 1 month):
  • any medium term absence;
  • the need to redeploy staff to meet skills mix deficit;
  • any environmental factors; and
  • roster management to ensure most appropriate rostering in place in a timely manner.
• Long term (in excess of 1 month):
  • any long term absence e.g. maternity leave/long term sickness/absence;
  • the need for a review of staffing establishment to ensure planned staffing is appropriate in the long term following the section 12IJ duty to follow the common the staffing method for those areas where it applies;
  • the need to plan for long-term solutions to trends in risks identified;
  • review service delivery models or patient pathways to reduce risk, e.g. virtual consultation; and
  • roster management to ensure most appropriate rostering in place in a timely manner.

8.16 What is a severe or recurrent risk?

The Act does not define what a severe or recurrent risk is. Relevant organisations will need to use their own systems of classification to determine what these are, drawing on current published guidance such as the NHS Scotland risk assessment matrices contained within Learning from adverse events: a national framework.

To be able to respond effectively and timeously to severe and recurrent risk, relevant organisations will need to set out, in their arrangements, how information on risk escalated to a defined level (as agreed by the members of the relevant organisation's Board) will be collated, analysed and recorded to highlight severe and/or recurrent risk(s). This should include reporting to the Board in appropriate cases.

8.17 Other relevant guidance and legislation

Staff Governance Standard — NHS Scotland Staff Governance

Clinical and care governance framework: guidance - gov.scot (www.gov.scot)

Healthcare quality strategy for NHSScotland - gov.scot (www.gov.scot)

Standards - The Nursing and Midwifery Council (nmc.org.uk)

Ethical guidance - GMC (gmc-uk.org)

Learning from adverse events: a national framework