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

9. Duty to Seek Clinical Advice on Staffing

9.1 Which sections of the Act is this chapter about?

This chapter provides further detail on section 12IF of the 1978 Act Duty to seek clinical advice on staffing (referred to here as "the section 12IF 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.

9.2 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.

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

The section 12IF duty 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 the section 12IF duty remains with the relevant organisation and not with individuals who may be charged with carrying out certain actions.

9.4 What is this chapter about?

This chapter relates to section 12IF of the Act. It sets out that the following requirements should be implemented by relevant organisations:

• to put, and keep in place, arrangements for seeking and having regard to appropriate clinical advice in making decisions and putting in place arrangements in relation to staffing under the various sections of the Act; and
• to put, and keep in place, arrangements for recording and explaining decisions which conflict with that clinical advice.

Seeking and having regard to clinical advice on staffing is required when putting in place arrangements on staffing under:

• section 12IA Duty to ensure appropriate staffing;
• section 12IB Duty to ensure appropriate staffing: agency workers;
• section 12IC Duty to have real-time staffing assessment in place;
• section 12ID Duty to have risk escalation process in place;
• section 12IE Duty to have arrangements to address severe and recurrent risks;
• section 12IH Duty to ensure adequate time given to clinical leaders;
• section 12II Duty to ensure appropriate staffing: training of staff; and
• sections 12IJ, 12IK and 12IL: relating to the common staffing method.

These requirements should be considered within the context of existing organisational governance structures and processes 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 requirements of the Act and this accompanying guidance.

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 so far as it effects either of these, the wellbeing of staff. Relevant organisations will be required to report on the operation of this duty in their annual reports under section 12IM reporting on staffing.

9.5 What arrangements must the relevant organisation(s) make in relation to clinical advice?

The relevant organisation will, in practice, have a written procedure(s) on:

• how it will seek and have regard to clinical advice on staffing;
• how it will deal with decisions which conflict with that advice;
• reporting by individuals with lead clinical professional responsibility to the members of the relevant organisation about their views on the organisation's compliance with various staffing duties imposed by the Act;
• individuals with lead clinical professional responsibility enabling and encouraging other employees to give views on the operation of these arrangements, and recording these views in their reports to members of their organisation;

Arrangements should support clinicians and other decision-makers, up to the level of the board, to manage conflict in decisions and actions related to staffing.

Local arrangements should be:

• developed with staff, including the full engagement of local and/or area clinical and partnership forums, clinical governance committees and risk management committees;
• 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
• communicated in clear and accessible language to all relevant staff.

The arrangements must cover the relevant organisation's procedures for seeking and having regard to clinical advice when making staffing decisions and in putting in place arrangements in relation to staffing under the Act. In relation to situations where a decision is made which is contrary to the advice given, the arrangements must cover the:

• identification of risk(s) caused by the decision;
• mitigation of risk(s), so far as possible;
• notification of the decision, including reasons for it, to the clinician(s) who gave advice; and
• recording of any disagreement by the clinician(s) who gave advice.

Procedures should also include:

• recording and explaining decisions which conflict with clinical advice;
• at least quarterly compliance reporting to the board of the relevant organisation(s) by the individuals with lead clinical professional responsibility for a particular type of health care (these will be the board-level clinicians);
• enabling and encouraging employees to give views on the duty to seek clinical advice, and the recording of those views;
• raising awareness among the board-level clinicians giving quarterly reports of how to implement these procedures; and
• ensuring these board-level clinicians have adequate time and resources to implement the procedures.

9.6 Who can give clinical advice on staffing?

There are numerous uses of the term "appropriate clinical advice" throughout the Act. Though applied slightly differently, depending on the sections of the Act under consideration, a standard definition is included in section 12IO of the 1978 Act (inserted into the 1978 Act by section 4 of the Act):

"appropriate clinical advice" means advice obtained from the appropriate level and area of clinical professional structures depending on the particular circumstances of each case (for example from an individual holding a senior executive role in the provision of nursing services)"

Clinical advice, provided by a professional registered with a professional regulatory body, will be "appropriate" when it is relevant to the particular decision or risk, and is provided by someone with sufficient seniority, clinical expertise in the relevant clinical area, and responsibility for the particular clinical workforce affected by, or engaged in, the decision or risk. Local procedures required to operationalise this legislation should clearly set out specific guidance for relevant staff on how clinical advice should be sought, and from whom, within the context of local structures.

In any of the circumstances where the relevant organisation is obliged to seek appropriate clinical advice, it is possible that this advice may need to be sought from more than one individual. Where that advice is conflicting, the decision-maker at the appropriate level within the relevant organisation will be required to use their professional judgement to make a decision.

Where a decision conflicts with any of the clinical advice given (whether advice was obtained from one or more individuals), the decision-maker must record and explain this, identify any risks caused by their decision, mitigate these (in so far as is possible), and notify the clinician(s) who provided the advice in conflict with the decision.

Any clinician who gave advice may formally record their disagreement with a decision taken. In the case of the section 12IC duty to have real time staffing assessment in place and the section 12ID duty to have risk escalation process in place only, a clinician providing advice (among others) may also request a review from any decision-maker up to, but not including, a final decision made by the members of the relevant organisation.

9.7 When must clinical advice be sought, and regarded, in decision-making?

It is a requirement for relevant organisations to seek and have regard to appropriate clinical advice in making decisions, and putting in place arrangements in relation to staffing under:

• section 12IA: Duty to ensure appropriate staffing;
• section 12IB: Duty to ensure appropriate staffing: agency workers;
• section 12IC: Duty to have real-time staffing assessment in place;
• section 12ID: Duty to have risk escalation process in place;
• section 12IE: Duty to have arrangements to address severe and recurrent risks;
• section 12IH: Duty to ensure adequate time given to clinical leaders;
• section 12II: Duty to ensure appropriate staffing: training of staff; and
• sections 12IJ, 12IK and 12IL relating to the common staffing method.

The Act does not define or restrict the scope of 'clinical advice' but such advice may include agreement with the decision, suggesting an alternative action to mitigate any risk identified, acceptance of risk associated with the decision and therefore no further action, identification of significant risk to decision-makers to enable further exploration of the decision and acceptable solution to be found.

As well as seeking clinical advice in relation to these decisions, the relevant organisation must also comply with the other requirements contained in section 12IF. This includes the procedure to be followed for decisions which conflict with clinical advice, and quarterly board-level compliance reporting. These are explained more fully in this chapter.

As an example, a relevant organisation would need to seek and have regard to appropriate clinical advice in determining what constitutes sufficient time and resource for clinical leaders to discharge their responsibilities (under the section 12IH duty to ensure adequate time given to clinical leaders). If a clinical leader felt that the time made available to them (or others) was, or had become, insufficient, they would raise this through the organisation's appropriate local mechanisms. The individual responsible for making a decision on whether to increase the time available would need to seek appropriate clinical advice (either their own or from a relevant individual) which the relevant organisation must have regard to. If the organisation made a decision that conflicted with this advice it would have to record and explain that decision. This would include setting out what risks were arising and how these would be mitigated, as well as informing the individual who provided the clinical advice, who would be allowed to formally record any disagreement.

9.8 What must relevant organisations do if decisions are made that conflict with clinical advice given?

The relevant organisation is under a duty to record and explain decisions on staffing that conflict with clinical advice given. It must have an accompanying procedure(s) for:

• identifying any risks caused by a decision;
• mitigating such risks, as far as possible;
• notifying decisions to the person giving clinical advice; and
• the person giving clinical advice to formally record disagreement with the decision.

9.9 How can clinicians record disagreement?

The relevant organisation's arrangements must make clear the local process for any clinician giving advice to formally record their disagreement with any decision or arrangement on staffing, on which they have given advice, when that decision conflicts with the clinical advice they gave. Section 12IC (duty to have risk escalation process in place) also provides information about disagreeing with decisions taken on risk (see chapter 8 for further details).

The clinician who gave this advice will also need to continue to follow any requirements regarding action to take when disagreeing with decisions or arrangements on staffing, on which they have given advice, that are required by their managerial or professional structures, e.g. General Medical Council (GMC) requirements for GMC-registered doctors.

The quarterly compliance report(s) should include appropriate information on decisions taken contrary to clinical advice. As well as allowing the board of the relevant organisation(s) to assess the appropriateness of operational decision-making on staffing, this will support evaluation of compliance with the duty to have regard to clinical advice

9.10 How will clinicians give a clinical assessment of compliance with the health provisions in the Act?

The Section 12IF of the Act sets out that quarterly reports, at a minimum, on compliance with the Act, are to be provided to the board of the relevant organisation(s) by individuals with lead clinical professional responsibility for a particular type of health care and that the board must have regard to these reports. The report must include assessment of compliance with the duties relating to:

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

This approach is in keeping with ensuring board-level assessment and decision-making on the duties within the Act, since responsibility rests at board level.

The intent in this section of the Act is for compliance reports to members of the relevant organisation to be prepared and presented by the Executive-level clinicians on the board who have responsibility for clinical professions in the workforce in their board remit – currently the Executive Directors of Medicine and Nursing. These reports must cover all staff groups covered by the Act, and the Executive level clinicians should liaise as necessary with heads of other professions when preparing these reports.

The relevant organisation(s) must also ensure that those board-level clinical leaders are provided with a procedure to enable and encourage employees from across all clinical professions and settings to give views on the operation of the duty to seek clinical advice, and to record those views and incorporate them into their quarterly report.

For example, the Executive Nurse Director has executive level responsibility for the Allied Health Professional (AHP) workforce. As such, they should be supported by the board to seek the views of AHP staff. It would not be sufficient for the Executive Nurse Director to engage only with nursing staff in gathering views to inform the report.

Views from across professions and settings should be recorded in compliance reports. Although this does not mean every comment must be included, the board-level clinicians compiling the report should ensure that the full breadth of views are reflected – and these should inform conclusions and recommendations made.

Relevant organisation(s) should note that quarterly reporting is the minimum requirement. There may be good reason – such as notification of severe and recurrent risk outside the quarterly timetable or receipt of reports from external scrutiny or audit bodies – which may prompt further compliance reports to the board from the lead clinicians.

9.11 What constitutes "awareness-raising"?

Relevant organisations are under a duty to raise awareness among the "individuals with lead clinical professional responsibility for particular types of healthcare" (i.e. board-level clinicians) in how to implement arrangements relating to decisions in conflict with clinical advice, on reporting to the board of their organisation on compliance with wider health-related duties and on enabling and encouraging other employees to give views on the operation of clinical advice arrangements.

Awareness raising could take place in different ways, for example, written and online internal communication, presentations and discussions.

9.12 What constitutes "encouraging and enabling other employees"?

Relevant organisations must have arrangements in place to support the board-level clinicians who are preparing compliance reports to enable and encourage other employees to give views on the operation of the duty to seek clinical advice and record such views in their reports.

To enable staff to give views on the duty to seek clinical advice, relevant organisations should have in place easy access to the agreed arrangements in clinical settings. Relevant organisations should be able to demonstrate active, ongoing engagement of staff in giving views on the operation of the duty to seek clinical advice. This requirement to seek views on the operation of the clinical advice duty is in addition to requirements in the guiding principles to take into account staff views, and in the section 12IJ duty to follow the common staffing method to encourage and support employees to give views on staffing and to take them into account.

The purpose of this legislation is to improve the safety and quality of services through appropriate staffing. In practice, it will rely on staff feeling safe to speak up. A culture of transparency, continuous improvement and open communication – set from, and modelled by those at, the top of the relevant organisation(s) – will support all staff to feel safe to give their open and honest views on the operation of this section of the Act and to record disagreements on staffing decisions on which they provided clinical advice. Ongoing feedback to staff that makes clear that their views are being presented to, and considered by, the board of their relevant organisation – and that their views are informing improvement – will also encourage staff to continue to share views and record disagreement, as necessary. To further support staff in this, they should have access to professional structures, clinical networks etc.

9.13 What constitutes "adequate time and resource"?

"Individuals with lead clinical professional responsibility for particular types of healthcare" in the context of this section (i.e. board-level clinicians) will require both time, as well as resources to implement the arrangements under section 12IF. This should take into account the other staff required for them to carry out this function. For example, time for a Director of Pharmacy to seek and report views from the hospital-based pharmacy workforce would be a legitimate resource need for the Executive (Board) Medical Director. Similarly, administrative time for an AHP leader to gather views from community-based AHPs across the area would be a legitimate resource.

What is "adequate" for these board-level clinicians will be different by setting and by the context of reports required and by any concerns around compliance. However, the relevant organisation(s) should be able to evidence that the board-level clinician's advice on the time and resource set aside to discharge their functions in this section has been considered, and that effective discharge of the duties is supported by adequate time and resource. Chapter 10 on the section 12IH duty to ensure adequate time given to clinical leaders provides more information on determination of time and resources.

9.14 How does the clinical advice duty link to other requirements in the Act relating to clinical advice?

There are a number of requirements relating to clinical advice throughout the Act, in addition to this overarching duty to seek clinical advice:

• the section 12IA duty to ensure appropriate staffing requires relevant organisations to have regard to appropriate clinical advice (see chapter 6);
• the section 12IC duty to have real-time staffing assessment in place requires an individual with lead professional responsibility (whether clinical or non-clinical) to seek and have regard to clinical advice, as necessary, when mitigating a risk (see chapter 8);
• the section 12ID duty to have risk escalation process in place places a requirement on decision-makers to seek and have regard to clinical advice, as necessary, in reaching a decision on risk, including on how to mitigate it (see chapter 8);
• the section 12IE duty to have arrangements to address severe and recurrent risks requires appropriate clinical advice to be sought and had regard to in carrying out the mitigation of risks that are considered to be severe and / or liable to materialise frequently (see chapter 8); and
• the section 12IJ duty to follow the common staffing method requires relevant organisations to take into account appropriate clinical advice (see chapter 12).

This chapter should be read in conjunction with chapters detailing these other clinical advice requirements to ensure that the clinical advice requirements in all the duties are met. For example, where a staffing decision is made under the section 12ID risk escalation duty that goes against the clinical advice, the individual who gave the advice must be notified of the decision, and they must be able to record their disagreement and request a review. At the same time, the duty in this chapter (under section 12IF) on clinical advice also requires that any risks caused by that decision are identified and mitigated so far as possible.

9.15 Other relevant guidance and legislation

Staff Governance Standard — NHS Scotland Staff Governance

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

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

Excellence in Care (healthcareimprovementscotland.org)

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

Ethical guidance - GMC (gmc-uk.org)

Leading Better Care: Report of the Senior Charge Nurse Review and Clinical Quality Indicators Project - gov.scot (www.gov.scot)

Quality improvement | NHS Education for Scotland