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

Part 3 – Staffing in Care Services

194. We can see the attractions and advantages from treating all parts of the delivery of health and care in the same manner. We can see no rationale to ultimately treat this sector any differently from the NHS, both are providing services to the public and the public should be assured they and their relatives are being looked after adequately with care, professionalism and dignity.

195. We recognise the different environments that exist across the delivery of health and social care, and in particular that definitions of safety and how quality is measured inevitably differ between hospitals and care homes reflecting the type of care being provided from intensive to respite care. We also recognise the very different contexts within which acute hospitals and care homes operate in terms of commissioning, procurement, funding, governance and ownership. We are also mindful of the necessity that this Bill does not impinge on the requirements of the social care sector in particular, to be responsive and to be able to devise innovative solutions (as a disparate sector) to particular pressures. This innovation is required for the integration agenda to succeed. We ask the Scottish Government for detail of how it will be ensured such differences will be factored into the development of new tools and methodologies.

196. When tools are introduced we would expect the same criteria to apply as set out across Part 2. Including provision for training, monitoring and evaluation, compliance and sanctions as well as covering the role of AHPs and the visibility of information on every site for the public.

Scottish Government Response

65. It is our intention that the development of any new tool and methodology would be carried out in a similar manner to the way in which the existing tools were developed in health. A clinical reference group is established prior to the development of any new tool. All Health Boards are invited to contribute to the clinical reference group. The group has representation from clinical staff at different levels in the specialty, managers, finance, workforce and partnership organisations from service and programme advisor and analyst representation from the programme with external expert opinion being sought from our academic partner as required. The group works to a standard operating procedure for the development of a workload tool and is chaired by a senior clinician from the specialty. Once the tool is developed and being utilised in service the clinical reference group is re-convened as necessary to review the tool or to provide expert opinion where issues have arisen.

66. It is crucial that any tool is developed by the sector, for the sector. This is why section 82A(2) of the Bill requires the Care Inspectorate to collaborate when developing a staffing methodology. As a minimum, the Care Inspectorate must collaborate with Scottish Ministers, Healthcare Improvement Scotland, local authorities, integration authorities, representatives of the providers of care services, representatives of the users of care services, trade unions and professional bodies.

67. The Financial Memorandum makes an estimate of the costs associated with this collaborative approach to the development of a staffing method, taking account of input from both the Care Inspectorate and collaborators. The Financial Memorandum notes that as this work is to be coordinated by the Care Inspectorate but led by the sector, and the way in which a tool is developed will be informed by previous research, some of these costs may be spread across organisations other than the Care Inspectorate. However, an estimate of likely staff requirements is given assuming they would be employed by the Care Inspectorate.

68. We welcome the Committee's support for the same criteria to apply as set out across Part 2. Part 3 applies to all those working in a care service and therefore AHPs are already included.

The Role of the Care Inspectorate

203. We welcome the confirmation from COSLA they have received assurances from the Scottish Government any tools for the social care sector will be co-produced with the sector and service users. We think it is essential this is the case. We suggest the Scottish Government make this explicit on the face of the Bill allowing guidance to further develop how this is to be achieved.

204. We note references within the Policy Memorandum relating to the CI agreeing with the sector the need for a tool. To avoid any confusion we recommend section 10 of the Bill is amended to confirm that the sector will require to agree the need for a tool which will then allow the detail to be covered in guidance.

Scottish Government Response

69. Section 82A(2) of the Bill already requires the Care Inspectorate to produce staffing methods in collaboration with the sector.

70. A collaborative approach is key to the success of this legislation and the Care Inspectorate have confirmed their commitment to this approach. They are to lead and facilitate the development of tools in line with their statutory improvement function. The Bill does not place an explicit legal duty on the sector to agree because such a duty would be unenforceable and impractical: it would be difficult to find or to measure universal agreement across all providers in what is a diverse sector, and it would be inappropriate for the Scottish Government to attempt to compel such agreement. We are satisfied that the Bill will provide for the coproduction of tools in a manner which is enforceable in law and in practice.

71. There may also be certain circumstances where a staffing method should be developed for safety reasons. In these instances it is crucial that Scottish Ministers retain a power to instruct the Care Inspectorate to facilitate the development of a method. It would still be expected that this would, in so far as is possible, be done in the collaborative manner set out previously.

Wider Recruitment and Retention Issues

213. We recognise the concerns of witnesses about how the outcomes of the Bill can be achieved without a link to wider national workforce planning. If there is insufficient labour available nationally to fill vacancies then clearly resolution should lie initially at the national level. We are unclear what the implications for a health board, or social care service, will be if they are unable to meet the requirements of the Bill due to circumstances such as above and would welcome information from the Scottish Government on how the Bill recognises and addresses such a situation.

214. The concerns noted above bolster the issues highlighted in the section on integration of health and social care. If there is a shortage of nurses, midwives and social care workers the requirement for AHPs is going to be even greater along with other changes in the way services are delivered.

Scottish Government Response

72. This Bill is about workload planning not workforce planning. However, the common staffing methodology and tools set out in this Bill create an important evidence base upon which Health Boards will make decisions about their staffing. This evidence base will also inform wider local and national decisions about workforce planning and how best to respond to staffing challenges.

73. We understand the pressure staff are facing and we are clear that workforce planning needs to be improved, which is why we published the National Health and Social Care Workforce Plan, which will enhance workforce planning and help ensure appropriate staffing for safe, high quality care. The Plan recommends actions to improve collation of health and social care workforce data to support national and local workforce planning. Work is being led by NHS Education for Scotland and will draw initially on the work of the Care Inspectorate and the SSSC to develop a whole system approach across health and social care. The first phase of development of an integrated supply side platform will be delivered in late 2018 and will seek to enable future modelling of workforce requirements.

74. Under sections 12H and 12I of the National Health Service (Scotland) Act 1978^[1] ("the 1978 Act") Health Boards in Scotland have an existing duty to put and keep in place arrangements for the purposes of monitoring and improving the quality of health care which they provide to individuals, and to put and keep in place arrangements for the purposes of workforce planning. The National Workforce Planning Framework^[2] and the National Workforce Planning Framework 2005^[3] Guidance established how the requirement for NHS Scotland to workforce plan should be met. We expect Health Boards to comply fully with their duties under the Bill, as with these existing statutory duties.

75. The Scottish Government, with partners, analyse available supply and demand information and undertake modelling to inform decisions regarding the numbers of student nurse and midwife training places required for a sustainable workforce.

76. National support for workforce planning in social care includes the publication by the Scottish Social Services Council (SSSC) of annual official statistics on workforce numbers and composition, biennial workforce skills reports, and quarterly reports on the provision of Scottish Vocational Qualifications. Skills Development Scotland produce regular reports on Modern Apprenticeships, including those in health and social care and the Care Inspectorate have published information on vacancies in the sector. These reports seek to assist effective workforce planning and service providers are engaged in developing the approaches for data collection and reporting.

77. The Bill does not require Health Boards to meet minimum staffing levels, it is about putting in place an evidence based method to assess and monitor the workload associated with the delivery of care in a systematic way. As part of the common staffing method the Bill requires Health Boards to identify and take all reasonable steps to mitigate any risks and consider if changes are needed to staffing levels or the way in which it provides health care.

78. As set out in the Policy Memorandum, professional risk assessment of short term staffing requirements may require a variety of mitigating factors to be put in place to ensure safety is maintained, for example through the redeployment of staff from one area to another or the use of supplementary staffing to support short term gaps.

79. Using the common staffing methodology and tools will require Health Boards to consider all aspects of the methodology, including the use of supplementary staffing and redesign of services, to ensure they are using their resources in the best possible way to achieve high quality care. The methodology will support Health Boards to plan and use staff and, where required, redesign services to ensure existing safety and quality measures continue to be met.

80. We recognise that there are currently significant challenges in recruitment in both health and care service settings. This legislation will not, in itself, address these challenges and should be viewed in conjunction with other measures that we are taking to support and sustain the health and care workforce. However, by taking an evidence-based approach to workload and workforce planning that takes account of identified risks this legislation will not penalise organisations for factors beyond their control. It will, however, provide Health Boards with robust evidence on which to forecast workforce requirements which will in turn ensure that national level workforce planning is based on sound evidence.

Overall Conclusion

217. Although it is already the duty of health boards and care service providers to ensure appropriate numbers of staff the guiding principles of this Bill are unobjectionable. Having the right people with the right skills in the right place at the right time to ensure the highest quality of care and outcomes are delivered across health and social care is a principle we share. Although we have heard many concerns about the Bill, including possible unintended consequences the Committee supports the general principles as set out above.

218. We have however endeavoured to raise constructive concerns and suggestions throughout this report and to seek further detail and information in order to strengthen the Bill. We look forward to the Scottish Government response on these issues which we hope will provide reassurance not just for us but also for staff, stakeholders and service users.