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

2. Introduction

2.1 Introduction

This is statutory guidance (“guidance”) issued by the Scottish Ministers under sections 3 and 10 of the Health and Care (Staffing) (Scotland) Act 2019 (referred to throughout the guidance as “the Act”); sections 12IN and 12IV of the National Health Service (Scotland) Act 1978 (referred to throughout the guidance as “the 1978 Act”) (inserted by sections 4 and 6 of the Act); and section 82A of the Public Services Reform (Scotland) Act 2010 (inserted by section 12 of the Act). The Act will be fully in force by 1 April 2024 and this statutory guidance will apply from that date.

This chapter provides an introduction to the Act, and the guidance itself. The guidance will support relevant organisations in meeting requirements placed on them by the Act and by relevant secondary legislation. Links to other relevant publications can be found throughout the document; please note that when using these links, individuals should take into account any amendments to publications that have been made since the guidance was published.

The guidance has been prepared by various working groups comprising representatives from the Scottish Government and external stakeholders, including Health Boards, Special Health Boards, NHS National Services Scotland, local authorities, integration authorities, Healthcare Improvement Scotland, the Care Inspectorate, professional bodies, trade unions and professional regulatory bodies. We are grateful for their time and input. The guidance then went to public consultation in 2023 and feedback from this has been taken into account when finalising this document.

Relevant organisations are required to have regard to the parts of the guidance that are applicable to them and the guidance should be read together with the relevant sections of the Act and the associated secondary legislation. The guidance does not constitute legal advice and an organisation should obtain independent legal advice if uncertain about the requirements of the Act.

2.2 The Health and Care (Staffing) (Scotland) Act 2019

The Health and Care (Staffing) (Scotland) Act was passed by Parliament on 2 May 2019 and received Royal Assent on 6 June 2019. The aim of the Act is to provide a statutory basis for the provision of appropriate staffing in health and care services, enabling safe and high-quality care and improved outcomes for service users and people experiencing care. This requires the right people, in the right place, with the right skills, at the right time.

The provisions in the Act build on arrangements already in place for local and national workforce planning and will support a rigorous, evidence-based approach to decision-making relating to staffing requirements and consideration of service delivery models and service redesign. The Act is not prescriptive in stipulating numbers or skill mix of professions, does not prescribe minimum staffing levels or fixed ratios and does not seek to preclude the use of innovative new models of care delivery. Rather it seeks to support local decision-making, flexibility and the ability to redesign and innovate across multi-disciplinary and multi-agency settings.

The Act will also promote transparency in staffing and support an open and honest culture, where staff are engaged in relevant processes, informed about decisions relating to staffing requirements and feel safe to raise any concerns.

2.3 Who does the Act apply to?

The Act places different duties / obligations on different parties as detailed below. There are also organisations working in the health and care sector which have no duties or obligations under the Act; these are also explained below for clarity.

2.3.1 Health Boards, Special Health Boards and NHS National Services Scotland

The Act places duties and obligations on Health Boards, Special Health Boards providing direct patient care (i.e. NHS 24, the Scottish Ambulance Service Board, the State Hospitals Board for Scotland and the National Waiting Times Centre Board) and the Common Services Agency for the Scottish Health Service (referred to throughout this guidance as “NHS National Services Scotland”). Chapters 3 to 12 detail the duties and obligations of these organisations.

2.3.2 Care service providers

Care service providers have duties and obligations under the Act. A care service is defined under the Act as a service mentioned in 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.

Schedule 12 of the Public Services Reform (Scotland) Act 2010 provides definitions of these services. Care service providers should read chapters 14, 15 and 16.

2.3.3 Local authorities

Local authorities have obligations under the Act when they plan or secure the provision of a care service from a care service provider. Details can be found in chapter 15.

2.3.4 Integration authorities

Integration authorities have obligations under the Act when they plan or secure the provision of a care service from a care service provider. Details can be found in chapter 15.

With regard to health care, Part 2 of the Act (“Staffing in the NHS”) places duties in relation to staffing on Health Boards, Special Health Boards providing direct patient care (i.e. NHS 24, the Scottish Ambulance Service Board, the State Hospitals Board for Scotland and the National Waiting Times Centre Board) and NHS National Services Scotland. The Public Bodies (Joint Working) (Scotland) Act 2014 put in place a legislative framework to integrate health and social care services in Scotland. Under this framework, Health Boards delegate certain health care functions to an integration joint board or a local authority. They plan the delivery of required services and direct the Health Board to deliver the health care services as appropriate.

The Act does not mention the responsibilities of integration authorities in relation to health care services. However, under the Public Bodies (Joint Working) (Scotland) Act 2014, where a health care service is delegated to an integration joint board or local authority that body is subject to the duties that from time to time apply in connection with the carrying out of the function (see section 25 of the 2014 Act). Those include the duties under the Act and such bodies are therefore still covered within the scope of the Act. With regard to integration authorities, organisations should be familiar with, and refer to, requirements under the Public Bodies (Joint Working) (Scotland) Act 2014 and the associated statutory guidance to the 2014 Act and should cooperate with each other to deliver the requirements of the Act. Chapters 3 to 12 detail the duties and obligations in relation to the provision of health care.

2.3.5 Healthcare Improvement Scotland

Healthcare Improvement Scotland, referred to in this document as “HIS”, has specific responsibilities under the Act in relation to staffing in health care. Details about the responsibilities of HIS are explained in chapter 13.

2.3.6 Social Care and Social Work Improvement Scotland

Social Care and Social Work Improvement Scotland, referred to throughout this document as the “Care Inspectorate”, has responsibilities under the Act in relation to developing staffing methods for care services. These are detailed in chapter 16.

2.3.7 Scottish Ministers

This guidance is aimed at organisations external to the Scottish Government, providing them with information to be able to understand and implement their relevant duties and obligations under the Act. It therefore does not contain chapters on the duties and obligations of the Scottish Ministers. However, it is considered useful to include an overview of these, which are:

• To take all reasonable steps to ensure that there is a sufficient number of registered nurses, registered midwives and medical practitioners available to enable Health Boards and NHS National Services Scotland to comply with the duty to ensure appropriate staffing, and to report on this annually to Parliament;
• To collate the annual reports received by Health Boards, Special Health Boards and NHS National Services Scotland and lay a combined report before Parliament, along with an accompanying statement setting out how the information has been / will be taken into account in policies for staffing of the health service; and
• To publish and lay before Parliament an annual report about staffing in care services, to include:
  • a summary of how care service providers, local authorities and integration authorities are discharging their duties;
  • the effect that staffing levels have on the discharge of those duties;
  • the steps Scottish Ministers have taken to support staffing levels in care services in order to assist the discharge of those duties;
  • how the above will be taken into account in determining the future supply of registered nurses, medical practitioners and other kinds of care professionals; and
  • the steps that Scottish Ministers have taken to ensure funding is available to care services to assist the discharge of those duties.

2.3.8 Independent health care providers

The duties relating to health care staffing contained in the Act are for Health Boards, specific Special Health Boards and NHS National Services Scotland in relation to their staff. Independent health care providers and their staff are not included within the scope of the Act and they have no requirement to follow any of the duties / obligations relating to health care staffing.

Independent health care providers, for example, private hospitals, independent primary care contractors and third sector hospices, can have agreements, arrangements or contracts with Health Boards, Special Health Boards or NHS National Services Scotland (NSS) to provide health care services. In these circumstances, there is a requirement on Health Boards / Special Health Boards / NHS NSS, when planning or securing the service, to have regard to the guiding principles for health and care staffing (found in section 1 of the Act) and the need for the independent provider to have appropriate staffing arrangements in place. However, this duty is on the Health Board / Special Health Board / NHS NSS, not on the independent provider and even when contracted to provide a service to the NHS, the independent provider and their staff do not fall under the scope of the Act. Details on the requirements of Health Boards / Special Health Boards / NHS NSS when they are planning or securing health care services from third parties can be found in chapter 4.

In some situations, independent health care providers may have directly employed NHS staff working alongside their own employees. One example would be independent GP contractors. In this case although the individual GPs are not employed by the Health Board, other staff working in the GP practice might be. For example, roles such as nurses and allied health professionals could be employed by the GP practice but alternatively could be employed by the Health Board. If they are employed by the GP practice, then, as the GP practice is an independent contractor, and therefore not subject to the duties set out in the Act, these staff are also not subject to the duties set out in the Act. However, if they are directly employed by the Health Board, they are subject to the duties and it is the responsibility of the Health Board to ensure compliance. This is only one example and may be applicable in other situations.

2.3.9 Staff roles

The Act does not list which groups of staff or staff roles are included in the provisions, with the exception of the section 12IJ duty to follow the common staffing method, which is restricted to the types of health care, locations and employees listed in section 12IK of the Act. However we have published a separate comprehensive list of staff roles subject to the Act. This list does not form part of the statutory guidance but will sit alongside it and be a ‘living document’ which can incorporate new roles / professions over time as appropriate.

2.4 How is the guidance laid out?

The guidance aims to roughly follow the order of the different requirements as set out in the Act, with the first chapters addressing health care and the following chapters, care services:

• Chapter 3 covers the guiding principles in health care (section 1 of the Act);
• Chapter 4 covers the responsibilities of Health Boards, relevant Special Health Boards and NHS National Services Scotland when planning or securing health care from a third party (section 2 of the Act);
• Chapter 5 covers the duty on Health Boards, relevant Special Health Boards and NHS National Services Scotland to ensure appropriate staffing (section 12IA of the 1978 Act);
• Chapter 6 covers the duty on Health Boards, relevant Special Health Boards and NHS National Services Scotland to report on the use of high-cost agency workers (section 12IB of the 1978 Act);
• Chapter 7 covers the duties on Health Boards, relevant Special Health Boards and NHS National Services Scotland to have real-time staffing assessment and risk escalation processes in place, along with arrangements to address severe and recurrent risks (sections 12IC, 12ID and 12IE of the 1978 Act);
• Chapter 8 covers the duty on Health Boards, relevant Special Health Boards and NHS National Services Scotland to seek clinical advice on staffing (section 12IF of the 1978 Act);
• Chapter 9 covers the duty on Health Boards, relevant Special Health Boards and NHS National Services Scotland to ensure that adequate time is given to clinical leaders (section 12IH of the 1978 Act);
• Chapter 10 covers the duty on Health Boards, relevant Special Health Boards and NHS National Services Scotland to ensure appropriate training for staff (sections 12IC, 12ID, 12II and 12IL of the 1978 Act);
• Chapter 11 covers the duty on Health Boards, relevant Special Health Boards and NHS National Services Scotland to follow the common staffing method, for the listed types of health care, locations and employees (sections 12IJ, 12IK and 12IL of the 1978 Act);
• Chapter 12 covers the various requirements on Health Boards, relevant Special Health Boards and NHS National Services Scotland to report on staffing (section 2 of the Act and section 12IM of the 1978 Act);
• Chapter 13 details the duties of Healthcare Improvement Scotland (HIS) (sections 12IP to 12IW of the 1978 Act);
• Chapter 14 covers the guiding principles in care services, along with the duty on care service providers to ensure appropriate staffing and staff training (sections 1, 7 and 8 of the Act);
• Chapter 15 covers the responsibilities on local authorities and integration authorities when planning or securing care services from a third party and the associated reporting requirements (section 3 of the Act);
• Chapter 16 details the responsibilities of the Care Inspectorate with regard to developing staffing methods for the care services sector (section 12 of the Act); and
• A glossary of terms used in the guidance can be found at the end.

2.5 Compliance with the Act

Healthcare Improvement Scotland is responsible under the Act for monitoring compliance by Health Boards, relevant Special Health Boards and NHS National Services Scotland. There are no specific measures in the Act regarding non-compliance by these organisations. However, given that the Act inserts a number of duties into the National Health Service (Scotland) Act 1978, powers available to Scottish Ministers in the 1978 Act in relation to failure of organisations to carry out functions are also applicable in respect of the staffing duties.

With regard to care services, the Care Inspectorate will continue to register, inspect and monitor care services under the provisions of the Public Services Reform (Scotland) Act 2010. No new provisions for the registration, inspection and monitoring of care services were introduced by the Act and there are no requirements for care service providers to report directly to the Scottish Ministers.