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

15. Planning or Securing the Provision of Care Services from Others

15.1 Which sections of the Act is this chapter about?

This chapter provides further detail on section 3(2) and (6) of the Act.

There are other links to useful information embedded in this chapter; these are denoted in blue text.

15.2 Who does this chapter apply to?

The following organisations must comply with the requirements contained in this chapter:

• All local authorities, and
• All integration authorities within the meaning of section 59 of the Public Bodies (Joint Working) (Scotland) Act 2014

These are referred to as “relevant organisations” in this chapter.

Health Boards, relevant Special Health Boards and NHS National Services Scotland must comply with a similar requirement (found in section 2 of the Act) when planning or securing the provision of health care from others. Further information about this can be found in chapter 4.

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

Section 3(2) applies where a relevant organisation is planning or securing the provision of a care service from a third party. Care services are those listed under section 47(1) of the Public Services Reform (Scotland) Act 2010, namely:

• a support service;
• a care home service;
• a school care accommodation service;
• a nurse agency;
• a child care agency;
• a secure accommodation service;
• an offender accommodation service;
• an adoption service;
• a fostering service;
• an adult placement service;
• child minding;
• day care of children; and
• a housing support service.

The requirement applies to all functions provided by all staff working in a care service (chapter 2, introduction provides more details on the types of individuals covered by the Act). Note that the definition of “working in a care service”, which is found in section 11 of the Act, includes working for payment or as a volunteer, and working under a contract of service or apprenticeship, a contract for services or otherwise than under a contract. This is wide-ranging and would include, for example:

• employees of the care service;
• agency and other temporary / contract workers;
• self-employed workers;
• those on apprenticeship schemes and other ‘earn as you learn’ schemes who are employed by the care service; and
• volunteers.

Any reference to “staff”, “staffing” or “working in a care service” within this chapter includes all these groups of people.

With regard to students, individuals may be taking part in a placement at the care service as part of their course, for example a student studying nursing at a university or may be working in the service as part of an apprenticeship or other ‘earn and learn’ model. Students should not be considered as “staff” and should be treated as supernumerary when they are participating in a supernumerary placement or are undertaking protected learning time as detailed within the relevant course outline or conditions of employment. When on such a supernumerary placement or undertaking protected learning time, they are in areas in a learning capacity, not to support the delivery of the service and may in fact add to the workload of staff who are directly involved in their supervision and learning.

Accountability for all the requirements covered in this chapter remains with the relevant organisation and not with individuals who may be charged with carrying out certain actions.

15.4 What is this chapter about?

Section 3(2) of the Act places a requirement on relevant organisations when planning or securing the provision of a care service from third parties to have regard to a number of matters. This means that the new legal framework becomes a relevant part of the planning of such services, as well as their delivery. Section 3(6) of the Act requires relevant organisations to report on how they have complied with this requirement.

15.5 Planning or securing the provision of care services

When relevant organisations plan or secure the provision of a care service from a third party provider, they must have regard to the following:

• the guiding principles in the Act (section 1 of the Act);
• the requirement on care service providers to have regard to the guiding principles (section 3(1) of the Act);
• the duty on care service providers to ensure appropriate staffing (section 7 of the Act);
• the requirement on care service providers with regard to training of staff (section 8 of the Act);
• the requirement on care service providers to have regard to guidance issued by the Scottish Ministers (section 10 of the Act);
• the duties on care service providers under Chapter 3 of Part 5 of the Public Services Reform (Scotland) Act 2010, for example with regard to registration of care services; and
• the duties on care service providers under Chapter 3A of Part 5 of the Public Services Reform (Scotland) Act 2010, for example with regard to the use of any prescribed staffing methods or staffing tools. Note that the Health and Care (Staffing) (Scotland) Act 2019 inserted chapter 3A into the Public Services Reform (Scotland) Act.

Care service providers already had obligations under Chapter 3 of Part 5 of the Public Services Reform (Scotland) Act 2010. The 2019 Act means these and the new requirements (both in the 2019 Act and inserted into the 2010 Act by the 2019 Act) are a relevant part of the planning of care services, decision-making and selecting and contracting with care service providers. The section 3(2) requirement is deliberately general and flexible to allow for the wide variety of contractual arrangements which it covers.

Guidance on the guiding principles in care service staffing, and the duties of care service providers to ensure appropriate staffing and training can be found in chapter 14. Relevant organisations may already be having regard to some or all of the requirements, in their existing procedures for the planning or securing of care services from third parties. If not, they will need to amend their procedures. It is noted that the requirements of this section apply to all contracts, agreements or arrangements planned or secured from 1 April 2024. It is not retrospective, and there is no requirement under the Act for relevant organisations to assess services planned or secured prior to this date. However, relevant organisations will have to consider the requirements when existing contracts, agreements or arrangements are renewed, renegotiated etc.

Ther requirements of the Act only apply to the planning and securing stage of a care service; there is no requirement under the Act for ongoing monitoring or scrutiny of third party providers. However, it is important to note that requirements of the Act are only one part of a larger commissioning cycle and the many factors that will need to be considered when planning or securing the provision of any particular service. For this reason, this chapter should be read alongside existing guidance on commissioning health and social care services (Strategic Commissioning Plans Guidance).

In practice, relevant organisations will have existing procurement and commissioning strategies in place and it is anticipated that consideration of the above would form part of this existing process.

Examples of evidence relevant organisations might consider when planning or securing services in order to comply with the duty placed upon them include, but are not limited to:

• Care Inspectorate inspection reports for care service providers;
• Care Inspectorate joint inspection reports;
• Care Inspectorate Datastore;
• previous experience of commissioning, or working with, the provider;
• any previous enforcement action;
• evidence of processes in place for the provider to implement the requirements of the Health and Care (Staffing) (Scotland) Act 2019, and
• other relevant inspections and audits.

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

15.6 Reporting

Section 3(6) of the Act states that relevant organisations must publish information annually on the steps they have taken to comply with the requirement in section 3(2) regarding the planning and securing of care services and any ongoing risks that may affect their ability to comply with this requirement.

In order to promote consistency across all relevant organisations, the Scottish Government will provide a report template for organisations to complete when publishing information under section 3(2).

Information published by relevant organisations under section 3(6) will cover the financial year, i.e. the period from 01 April to 31 March. It must be published as soon as is reasonably practicable after the end of each financial year. Details of the date that these reports should be provided to the Scottish Ministers will be included in the report template. The most appropriate means to publish the information should be decided by the relevant organisation but it is envisaged this would follow methods used to publish other reports.

15.7 What could a relevant organisation use to evidence compliance?

It would be for the relevant organisation to decide how they could evidence compliance, however examples of evidence that could be used could include:

• A procedure for planning or securing care services from third parties that incorporates all the requirements of section 2 of the Act;
• Records of planning or securing health care from third parties and the considerations made; and
• Examples of contracts, agreements or arrangements.

This list is not exhaustive.

15.8 Existing relevant policy, legislation and guidance

The duty to have regard to the Act when planning or securing the provision of care services from a third party sits alongside existing governance requirements. The contents of existing contracts will continue to apply, as will any guidance around these. Whilst this section of the Act does not require relevant organisations to add additional clauses to any standard contracts they use, relevant organisations will need to consider how they stipulate and obtain evidence of appropriate staffing when planning and securing services.

Other guidance can be found at:

Health and Care (Staffing) (Scotland) Act 2019: overview - gov.scot (www.gov.scot)

SSSC Open Badges | CI Safe and effective staffing - SSSC Open Badges

Safe Staffing Project | Care Inspectorate Hub

Health and Care Staffing in Scotland | Turas | Learn (nhs.scot)

Health and Care (Staffing) (Scotland) Act 2019 (cloud.microsoft)

Children and Young People Resources | Care Inspectorate Hub

Adults and Older People Resources | Care Inspectorate Hub

Inspections (careinspectorate.com)

Our quality assurance role (careinspectorate.com)

Workforce wellbeing support - Scottish Social Services Council (sssc.uk.com)

Continuous professional learning (CPL) - Scottish Social Services Council (sssc.uk.com)

Leadership development - Scottish Social Services Council (sssc.uk.com)

Quality improvement learning - Scottish Social Services Council (sssc.uk.com)

Care services - planning with people: guidance - gov.scot (www.gov.scot)

Health and social care - Planning with People: community engagement and participation guidance - gov.scot (www.gov.scot)