Publication - Advice and guidance

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

Published: 1 April 2024
Directorate: Chief Nursing Officer Directorate
Topic: Health and social care
ISBN: 9781836011149

This statutory guidance has been issued by the Scottish Ministers to accompany the Health and Care (Staffing) (Scotland) Act 2019. The guidance will support relevant organisations in meeting requirements placed on them by the Act and relevant secondary legislation.

Supporting documents

4. Planning or Securing the Provision of Health Care from Others

4.1 Which sections of the Act is this chapter about?

This chapter provides further detail on section 2 of the Act: Guiding principles etc. in health care staffing and planning (as they apply to the planning and securing of health care from others).

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

4.2 Who does this chapter apply to?

The following organisations must comply with the requirements 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 for Scotland and the National Waiting Times Centre Board.

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

Local authorities and integration authorities have similar requirements when planning or securing the provision of care services from others and should go to Chapter 15 for guidance.

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

This section applies to all NHS functions provided by all professional disciplines (chapter 2, 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 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.

4.4 What is this chapter about?

Section 2(2) of the Act places a requirement on relevant organisations when planning or securing the provision of health care from third parties to have regard to the guiding principles for health and care staffing and the need for that third party to have appropriate staffing arrangements in place. The effect is to make these matters considerations for relevant organisations in their decision-making in planning services, assessing needs, and in selecting and contracting with service providers. This requirement is deliberately general and flexible to allow for the wide variety of legal arrangements which it covers: the Act refers to a “contract, agreement or arrangements”.

The aim of this duty is to ensure that patients / service users receive safe and high-quality care and the best outcomes irrespective of whether that care is being provided directly by the relevant organisation, or by a third party on their behalf.

Guidance on the guiding principles for health and care staffing can be found in chapter 3 and guidance on what constitutes appropriate staffing arrangements can be found in chapter 5. Relevant organisations may already be having regard to some or all of the guiding principles, along with staffing arrangements, in their existing procedures for the planning or securing of health care services from third parties. If not, they will need to amend their procedures to do so. 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.

The requirements of the Act only apply to the planning and securing stage of a health 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 clearly encompass only one of the many factors that will need to be considered when planning or securing any particular service and onwards throughout the larger commissioning cycle. As such this chapter should be read alongside existing guidance on commissioning health and social care services ( for example, Strategic Commissioning Plans Guidance).

Sections 2(3) and 2(4) of the Act state that relevant organisations must report annually on the steps they have taken to comply with this requirement. Guidance on this reporting can be found in chapter 12.

4.5 What contracts, agreements or arrangements are included?

This section of the Act applies to the planning and securing of any health care by relevant organisations from any third party provider. This could be from a private or third sector provider, from another Health Board or through local or national agreement. Examples of scenarios covered by this chapter include:

Health Board has contracts, agreements or arrangements with a GP practice to provide GP services (the majority of General Practitioners are not employed by Health Boards but are independent contractors who have agreements with Health Boards to provide health care to the patients on their lists);
Health Board has contracts, agreements or arrangements with an independent optometrist / pharmacist / dentist to provide services;
Health Board has a contract, agreement or arrangement with a Special Health Board, e.g. the National Waiting Times Centre;
Health Board has a contract, agreement or arrangement with another Health Board;
NHS National Services Scotland commissions national specialist services;
Relevant organisation has a contract, agreement or arrangement for health care from an independent health care provider, e.g. a private hospital is commissioned to carry out 30 hip operations on behalf of a Health Board; and
Relevant organisation has a contract, agreement or arrangement for health care with a third sector provider, e.g. a Health Board may use a third sector hospice to provide palliative care.

The relevant organisation will need to carry out due diligence, as part of planning or securing the service, to consider both the guiding principles and the need for the provider to have appropriate staffing arrangements in place. Examples of factors relevant organisations could consider, where relevant, when planning or securing services, in order to comply with the requirements placed on them include:

Healthcare Improvement Scotland (HIS) inspection reports for independent health care providers;
What is known about the particular needs, abilities, characteristics and circumstances of different service users. This could include any equalities or health inequalities impact assessments which have been carried out;
HIS reports for Health Boards; and
Other relevant inspections, for example in respect of contractors on the dental lists for their areas, Boards are to inspect (at intervals not exceeding three years) all practice premises located within their areas.

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

The requirement to have regard to the guiding principles and the need for appropriate staffing arrangements when planning or securing the provision of health care from a third party sit alongside the staff governance, clinical governance and financial governance requirements which already apply to relevant organisations.

Whilst the Act does not require relevant organisations to add additional clauses to any standard contracts or agreements they use, relevant organisations will need to consider how they stipulate and obtain evidence of appropriate staffing when planning or securing services.

4.6 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 health care from third parties that incorporates having regard to the guiding principles of the Act and the need for that third party to have appropriate staffing arrangements in place;
Documentation of considerations made when planning or securing health care from third parties; and
Examples of contracts, agreements or arrangements.

This list is not exhaustive.