Health and Care Staffing (Scotland) Bill: Scottish Government response to stage 1 report

Stage 1 Report

Guiding Principles

Process or Outcomes?

48. When looking at any piece of work our ultimate focus is always on the outcomes to be achieved. We consider the Bill is about enshrining the common staffing method in legislation with the aim of ensuring better outcomes for the individuals who use services.

49. We note the Scottish Government view that outcomes should not be in the Bill however we wish to ensure there is no reduction in focus on the outcomes for those using health and care services. To that end we ask the Scottish Government to make it unambiguous and to consider whether to place on the face of the Bill an additional guiding principle linking the outcome focus to the health and care standard and quality measures.

Scottish Government Response

1. The Scottish Government considers that the general principles in section 1 of the Bill already focus on outcomes for service users, with the most important being the provision of safe and high-quality services. Health Boards and care service providers are already obliged to take account of health and social care standards and quality measures and so an additional principle here would represent unnecessary duplication.

2. There is also a focus on outcomes in other areas of the Bill. In Part 2 of the Bill, the common staffing method requires Health Boards to take into account any measures, as far as relevant, for monitoring and improving the quality of health care which are published as standards and outcomes under section 10H(1) of the National Health Service (Scotland) Act 1978 by the Scottish Ministers.

3. In Part 3 of the Bill, the function that this Bill gives to the Care Inspectorate to develop tools sets out that any methodology developed should take account of:

• Any assessment of the quality of a care service
• The needs of the users of a care service
• Comments by the users of a care service which relate to the duty imposed by section 6 (duty on care service providers to ensure appropriate staffing)
• Comments by the individuals working in a care service which relate to the duty improved by section 6

• The standards and outcomes applicable to care services published by the Scottish Ministers under section 50 of the Public Services Reform (Scotland) Act 2010

Accountability

57. We believe there must be more clarity on where accountability for the provision of appropriate staffing in health boards and care services lies. Whilst the Policy Memorandum advises it will lie with organisations we believe unless there is a named accountable officer there is a high likelihood, particularly in health board settings, for those at ward level to be held or feel accountable. We would be grateful if the Scottish Government would advise of their position on this.

58. In the social care services sphere it is even more complicated with the introduction of commissioners into the process. If those providing services do not provide for enough staff to meet the requirements of the legislation then how is it possible to hold the commissioner accountable? It is difficult to understand why commissioners are not referenced in the Bill, especially when they are required to adhere to the guiding principles. We would be grateful if the Scottish Government could advise why commissioners have not been included in the Bill and where they see accountability lying in this sector - including whether a named accountable officer will be appointed.

Scottish Government Response

4. In regards to a named accountable officer in health, this Bill places a duty on the Health Board to ensure appropriate staffing (12IA), as well as duties to follow the common staffing method in specified settings (12IB), train and consult with staff (12ID), consider staffing when commissioning health care (section 2(2)) and report on these duties (12IE). The Health Board is accountable for compliance with all duties placed on it by the National Health Service (Scotland) Act 1978.

5. This Bill requires Health Boards to apply the common staffing method (12IB) in all areas set out in 12IC. In addition to this, the Board must also comply with the duty to ensure appropriate staffing across all staff groups (12IA). In effect, this will require the Board to take into account the outputs from the use of the common staffing method across all areas where a staffing tool currently exists, as well as the needs of staff groups and areas not covered by the common staffing method because a tool does not currently exist. The final decision on staffing levels needs to be taken by the whole Board, informed by the common staffing method (in relation to specified settings) and appropriate clinical advice. The Health Board remains accountable for the final decision and compliance with this legislation.

6. The Board will also be accountable for ensuring their staff are supported to use the common staffing method (12ID) and their views on staffing arrangements are taken into account.

7. Further details will be provided in guidance on which members of staff are expected to run the common staffing method as this will vary across tools. For example, it is expected that a Senior Charge Nurse should run the current adult in-patient tool. As future tools are developed which apply to multiple staff groups the responsibility for running these new tools will be identified as part of the development and implementation of the tool.

8. In care services it should be noted that each care service provider is already required to ensure appropriate staffing. The Bill levels up requirements on Health Boards to broadly mirror the existing requirements on care services, set out in existing regulations, which the Bill moves from secondary to primary legislation. As part of inspection and registration, the Care Inspectorate currently assesses care service providers on their compliance with regulation 15 of The Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011, which stipulates that providers must ensure that at all times suitably qualified and competent persons are working in the care service in such numbers as are appropriate for the health, welfare and safety of service users.

9. Commissioners are already included in the Bill. Section 3(2) of the Bill requires commissioners of care services – that is, local authorities and integration authorities – to take account of the guiding principles, and to have regard to the duties placed on care service providers by this Bill, when planning or securing (i.e. commissioning) care services.

10. This recognises that a staffing methodology and tool would be used by a service provider, not a commissioner. It ensures that service providers retain flexibility in deciding how they choose to staff their service to meet the workload associated with the care of their service users. When a service is commissioned, both commissioner and provider will agree a contract based on an informed decision on what staff are required.

Assurance

69. Given the extensive training required of users to operate the tools we are doubtful there is appropriate or adequate accessibility for the public and are pleased to hear the resource is being reviewed. We would welcome an update on the review together with details of how it is anticipated this can provide improved accessibility for the public.

70. We are also unclear how members of the public will be assured sufficient staff are in place to provide safe staffing in a hospital at any specific time and be assured their family member or friend, is or will be cared for properly. We welcome the work HIS is undertaking as part of their excellence-in-care approach and would like to see every ward in Scotland display information on staffing levels as they suggest.

71. We welcome the commitment from the Scottish Government to work with staff to ensure reporting routes are better understood and more meaningful. We would be grateful if the Scottish Government can provide an update on how this commitment will be taken forward for both staff and patients and how this can be clarified within the legislation for all care settings.

Scottish Government Response

11. As outlined at paragraphs 46 and 47 in this response, further details of the review of the existing staffing tools will be provided separately.

12. Healthcare Improvement Scotland (HIS) and the Care Inspectorate inspect health and care services in order to provide quality assurance that give the public confidence in the services they use. The Care Inspectorate will continue to assess whether care service providers have appropriate staffing in place and, once a tool and methodology is developed for care homes, take this into account as part of their inspection which results in a publically available grade for each service. HIS will now take into account the guiding principles, duty to ensure appropriate staffing, the common staffing methodology and use of staffing tools as part of their inspection regime, the results of which are made public.

13. As part of the Excellence in Care approach, NHS Scotland is developing a dashboard which will include information on the common staffing method and quality outcome measures. It is planned that a public facing version will be developed.

14. In relation to concerns raised by patients in both health and care, there are already existing mechanisms in place to allow them to do this. The Scottish Government wants everyone to receive the best possible care and treatment from our health and care services. We have set out the wider policy within which NHS Scotland is expected to deliver services, and expect all Health Boards to provide high quality care that is safe, effective and person-centred.

15. The Patient Rights (Scotland) Act 2011 and supporting legislation, provides a specific right for patients to make complaints, raise concerns, make comments and give feedback. The Health Board, Special Health Board or Common Services Agency (as the case may be) must consider any complaint, concern, comment or feedback received, with a view to improving the performance of its functions. The relevant NHS body must have adequate arrangements in place for handling and responding to any complaint, concern, comment or feedback received. They must also monitor any complaints, concerns, comments or feedback received with a view to identifying any areas of concern, and improving the performance of its functions.

16. When a patient has concerns about their treatment or care, this should be addressed at a local level through the NHS complaints procedure. When that is not possible, the complaint can be referred to the Scottish Public Services Ombudsman (SPSO).

17. Health Boards also have a duty to provide information on the advice and support services available for patients who wish to make a complaint including providing contact details of the Patient Advice and Support Service (PASS). The PASS service is free, confidential and independent and is delivered the Citizens Advice Bureau.

18. In 2013 the Scottish Government publically endorsed Care Opinion as an independent, open and transparent way for patients and the public to share their stories and experiences of health services across Scotland. All Health Boards in Scotland are using Care Opinion, listening to what people and their families have to say, and are responding and showing where they are making improvements as a result.

19. We are working closely with representatives of staff groups in health to develop a dynamic assessment of risk and associated escalation processes, as appropriate, to ensure reporting routes are more meaningful and understood.

20. My officials are continuing to work with clinical representatives, including medical, nursing and midwifery and Allied Health Professionals (AHP) colleagues, to consider how best to make clear that Health Boards have in place appropriate processes for the real-time assessment of staffing needs and risk mitigation, alongside an appropriate escalation process that ensures staffing concerns can be raised when they arise, and to further ensure that appropriate clinical advice will be obtained when making decisions in these situations and also ensuring effective feedback mechanisms to staff are in place.

21. For care services there are already robust regulatory and escalation regimes in place which include having procedures in place through the powers of the workforce regulator (Scottish Social Services Council (SSSC)), an inspection regime (the Care Inspectorate) and a national whistleblowing regime (complaints).

22. For care services there are a diverse range of providers in the voluntary, public and private sector delivering care home services for older people. The SSSC Code of Conduct for Employers of Social Services, requires them to:

• Have systems in place for social service workers to report inadequate resources or difficulties which might have a negative effect on the delivery of care. Work with social service workers and relevant authorities to tackle such problems.
• Have systems in place to support workers to whistle-blow when they feel that working practices are inappropriate or unsafe for any reason.

23. The escalation route for concerns is the Care Inspectorate and set out under section 79 of the Public Services Reform (Scotland) Act 2010 which provides that :

• The Care Inspectorate must establish a procedure by which a person, or someone acting on a person's behalf, may make complaints (or other representations) in relation to the provision to the person of a care service or about the provision of a care service generally.
• The procedure must provide for it to be available whether or not procedures established by the provider of the service for making complaints (or other representations) about that service have been or are being pursued.
• Before establishing a procedure the Care Inspectorate must consult the Scottish Public Services Ombudsman, all local authorities and such other persons, or groups of persons, as it considers appropriate on its proposals for such a procedure.
• The Care Inspectorate must keep the procedure under review and must vary it whenever, after such consultation, it considers it appropriate to do so.
• The Care Inspectorate must give such publicity to the procedure as it considers appropriate and must give a copy of the procedure to any person who requests it.

24. The Care Inspectorate's statutory complaints function is well publicised, well used and extends to whistle-blowing. This year the Care Inspectorate issued a publication titled 'Complaints about care services in Scotland 2014/15 to 2016/17' which showed complaints were made by staff and complaints were made about staffing levels.

Wellbeing of Staff

75. We welcome the requirement to ensure staff wellbeing is encompassed within the general principles but are unsure how this will be achieved given the ever increasing demands on the health and social care sector. There is no detail in the Policy Memorandum around how this will be achieved or how the Bill will ensure it happens.

76. We agree with Marie Curie that staff safety and wellbeing contribute to safe and high quality care. We would be grateful if the Scottish Government could advise how they plan to include staff wellbeing as part of the provision of safe and high quality services.

Scottish Government Response

25. The welfare of NHS staff is critically important with every Health Board required to have policies in place and to comply with national policies on managing health at work, which includes wellbeing. We are improving our approach to staff experience to better understand and respond to the health and wellbeing issues that matter to staff, through the iMatter Staff Experience Continuous Improvement Model. Evidence from the first national report suggests that the model is having a positive impact on both staff wellbeing and patient outcomes.

26. NHS Scotland's staffing levels have increased by over 12,000 under this Government; the consultant workforce has grown by over 48% and the nursing and midwifery workforce has grown by 5.7% NHS Scotland Boards are required to have the correct staff in place to meet the needs of the service and ensure high quality patient care; they have fully delegated powers in relation to employment issues.

27. The Scottish Government works closely with Boards to support their efforts in staff recruitment. We are investing £4 million over the next three years in domestic and international recruitment for GPs, nursing, midwifery and consultant specialties with the highest existing vacancy rates.

28. Our staff are our most important asset and to maintain their physical and psychological wellbeing, we need to ensure that there are sufficient levels of staff at all times with the right skills to deliver the workload required to carry out safe, effective, person-centred care.

29. By setting out a workload system in legislation we can ensure that everyone knows what is expected, how to apply the process and how to make decisions based on the evidence generated by it. It also ensures transparency in this process. Staff, patients, the Scottish Government and the Scottish Parliament will be assured that there is a consistent assessment of workload, based on an assessment of acuity, patient need and the delivery of patient outcomes.

The Professional Voice

88. Professional judgment must be an essential part of this Bill. All recognise the staff on the ground on any given day are best placed to take decisions on what staffing requirements are and whether they are being met and this must include the involvement of other professions, beyond nursing and midwifery. Section 1 refers to "taking account of the views of staff" but we see the merit in it being prominent and exercisable in both Part 2 and Part 3 of the Bill.

89. We think there must be clearer direction in this legislation of who will be included in professional judgement. From Nurse Directors to Senior Charge Nurses and Team Leaders, AHPs to social care workers, they all must have a role to play in deciding on what is a "safe" staffing level. This is the only way to ensure the voice of those on the ground is not drowned out by competing priorities such as finance, medicines, a need for more doctors/clinical care. We would welcome confirmation from the Scottish Government on how this will be achieved.

Scottish Government Response

30. The common staffing method is built around ensuring that the staff on the ground take a systematic approach to the assessment of workload and can use their professional judgement to make an evidence based decision on the appropriate staffing to deliver this. The voice of the professional is referred to at multiple points throughout the common staffing methodology and sought in a number of ways.

31. The voice of the professional is central to the guiding principles, which apply across health and social care. The principles set out that services are to be arranged while taking account of the views of staff.

32. The common staffing methodology requires that the professional judgement tool be used alongside the speciality specific staffing tools (12IB(2)(a)). Boards are also required to take into account the comments of its employees in relation to the duty to ensure appropriate staffing (12IB(2)(c)(v)) as part of the common staffing methodology.

33. Boards must also take appropriate clinical advice before deciding on staffing levels (12IB(2)(d)(iii)). The Bill sets out that "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 a person holding a senior executive role in the provision of nursing services).".

34. As there is not yet a common staffing method for use in care services the Bill allows the Care Inspectorate to develop a method and sets out factors that may be taken account of, including comments by the individuals working in a care service, ensuring that the professional voice is prominent here too.

35. We expect future staffing level tools will be more multi-disciplinary in nature. The tools are used as part of the common staffing method - each staffing level tool will be used alongside a professional judgement tool and must be used by the relevant professionals. As the output from the range of health care settings covered by the common staffing method is fed up to the Board they will be required to take clinical advice before setting staffing levels. It is our intention to set out in guidance further detail on who should be given responsibility for running the common staffing method in the areas in which it is applied and which professionals clinical advice should be sought from for each of these areas. This will ensure the level of clinical advice is specific and appropriate for each health care setting while allowing flexibility to define differing staff groups in different health care settings.

Equity and Parity Across Services

116. The integration of health and social care is an essential step for the future of services in Scotland. We believe this is the right way forward and, like witnesses, are concerned to ensure this Bill does not have negative effects on the process of integration. The Scottish Government believes the Bill will support the increased integration of health and social care services by providing a consistent framework for staff planning across the sectors. We are concerned to ensure this is the case.

117. Legislation should not create a rigid compliance framework that undermines the new outcomes focused integrated environment for health and social care. We share the aspiration this Bill will support increased integration of health and social care while observing the extended timescales over which any tools will be developed in social care. We would welcome details on how the Bill supports integration and how it will continue to allow Health and Social Care Partnerships to work at locality level to identify local needs and then meet those outcome needs.

118. There is a significant overlap of governance responsibilities between health boards, integration joint boards and local authorities. Shared responsibility is clearly helpful to integration and we are keen to ensure this supports integration and it is clear where the Bill adds further responsibilities under Part 2. We would welcome detail from the Scottish Government on what guidance will be provided, should the Bill be passed, to ensure this joint working can continue and where governance responsibility and accountability lie in situations of joint working.

119. The work of AHPs is essential to the running of a safe, effective and efficient health care system. We are concerned about their omission from the Bill and the Government's admission to the DPLR Committee about the absence of any evidence or experience as to how multi-disciplinary tools might be developed and operated. The Cabinet Secretary was clear the Scottish Government expect AHPs' expertise to be involved in work to develop the tools appropriate for a care home setting. We would be grateful if the Scottish Government could confirm what they see as the role of AHPs in the health service and how the Bill will be changed to reflect their input and essential role in both health and social care.

120. We agree with the AHPFS concerns that Directors of Finance may be in a difficult position when it comes to deciding priorities as the legislation may tie them to providing funds for nurses and midwives to the detriment of AHPs and multidisciplinary working. Can the Scottish Government advise how they can ensure this does not happen?

121. The potential for resources to be skewed is a concern. In a tight staffing environment with many recruitment difficulties it is essential the Bill does not exacerbate the position and lead to the closure of other services should resources be skewed towards the acute sector. We would welcome details from the Scottish Government on how any such issue can be mitigated and both the care sector and community health sector be reassured.

Scottish Government Response

Working at locality level

36. The Bill will provide for all Health Boards and care service providers to have regard to the same shared guiding principles and to comply with the duty to ensure appropriate staffing for high quality care and the health, wellbeing and safety of service users. The current tools, to be used as part of the common staffing method within specified health care settings, identify the workload required to deliver service users' needs within the local population and context and allow Health Boards, integration authorities and local authorities to identify and agree staffing requirements on a shared understanding of the workload. Future tools are likely to be multi-disciplinary in nature and therefore the broader needs of a local population and associated workload needs will be established.

Joint accountability

37. Requirements on Health Boards will be linked to the planning and provision of health care services, so where those services are delegated to an Integration Authority as per the requirements of the Public Bodies (Joint Working) (Scotland) Act 2014 – whether an Integrated Joint Board, Health Board or local authority – then that body must also comply with them when planning and delivering those services. This will require open communication between the Integration Authority and those responsible for delivering the services to provide assurance that the duties in the Bill are being met. Statutory guidance will cover this.

Role of AHPs

38. The guiding principles (in Part 1) and the duty to ensure appropriate staffing (in section 4 inserted section 12IA) cover all health care settings and all staff groups, including AHPs. We recognise the valuable role AHPs play, and anticipate that future staffing level tools will be of a multi-disciplinary nature, which may include medics and AHPs as well as nurses and midwives.

39. The Committee note that AHPs work in all the types of health care listed in 12IC however they are not included in the staff groups covered by this section. 12IC sets out the types of health care in which the duty to follow the common staffing method applies – this list mirrors the health care settings for which staffing level tools already exist, since the use of a tool is a key part of the common staffing method. The existing staffing level tools have been developed by measuring the workload specifically for nurses associated with care in that setting. It would be inappropriate for other professions to use the current tools and this is why they are not currently covered by this section. As new staffing level tools are developed which include other staff groups, and once they have been tested for those staff groups, this section will be updated by the use of the Bill's regulation-making powers to reference those health care settings and staff groups.

Appropriate staffing duty and competing interests

40. It is not the Director of Finance's or IJB senior financial officer's role to decide staffing priorities, this is the role for the Health Board or care service provider. The duty to ensure appropriate staffing is intended to mitigate against skewing of resources to one staff group by requiring the Health Board to ensure appropriate staffing for all staff groups, including AHPs. Importantly, as part of the common staffing method, Health Boards are required to take into account appropriate clinical advice before setting staffing levels. Health Boards and local authorities are required to put in place a workforce development/organisational development plan for the workforce providing services and ensure arrangements are in place to develop and support staff in the delivery of those integration functions. The Bill places a duty on Integration Authorities and local authorities, when planning or securing care services, to consider the guiding principles and the safe staffing duties placed on care service providers by this Bill.