Consultation on proposed safe staffing laws for nursing and midwifery: independent analysis of responses

Chapter 5 - Risks and unintended consequences

The consultation paper then moved on to consider possible risks and unintended consequences associated with the proposals.

Question 12 - Are there any risks or unintended consequences that could arise as a result of the proposed legislation and potential requirements?

Table 21: Question 12 – Responses by type of respondent.

Type of respondent	Yes	No	Not answered	Total
Individuals	58	10	8	76
Organisations:
Health & Social Care Partnership	5			5
Independent sector health or social care organisation	2			2
NHS based professional group or committee	5			5
NHS Body or Board	6			6
Other			3	3
Other public body	1		1	2
Professional college, body, group or union	9		3	12
Total organisations	28		7	35
All respondents	86	10	15	111
% of all respondents	77%	9%	14%	100%
% of those answering the question	90%	10%		100%

A majority of those answering the question, 90%, thought there are risks or could be unintended consequences arising as a result of the proposed legislation and the potential requirements to extend the requirement to other settings and/or staff groups in the future. A majority of individual respondents agreed (58 out of 68 respondents), and all organisational respondents who answered the question agreed.

Table 22: Question 12 – Discussion Groups

Yes	No	Mixed Views	Not answered	Total
21			4	25

Twenty-one of the discussion groups agreed there were risks or could be unintended consequences and four did not answer the question.

There were 91 further comments made through Citizen Space and all of the discussion groups made a comment. The main risks or unintended consequences identified are set out in turn below.

The three most frequently-raised risks in relation to Question 12 were:

• Insufficient funding to address additional staffing requirements.
• Difficulties in recruiting and retaining staff.
• Resources being drawn from one service to another if a whole-systems approach is not taken.

These three most frequently-identified risks are presented first. In each case a range of discussions groups, individual respondents and organisational respondents highlighted these issues as potential risks.

Insufficient funding to cover any additional staffing requirements identified. The risk identified was that services would need to be reduced or closed if financial constraints mean there are insufficient resources to staff up to the safe and effective levels.

Specific risks suggested included: smaller services in particular may be considered unsustainable; the number of hospital bed could be reduced; and social care providers could leave the sector. It was also suggested that in England and Wales safe staffing levels for nursing has had an impact on funding for AHPs.

Difficulties in recruiting and retaining staff. Being unable to fill posts and reach and then maintain establishment level requirement was also identified as a risk. In particular, a number of respondents noted that some NHS and other services are already experiencing significant difficulties in filling key positions; the associated concern was that organisations will not be able to deliver the numbers indicated through triangulated workforce planning processes.

It was also suggested that:

• The possible problem could be further exacerbated if the requirements are too prescriptive in terms of the skills and experience profile of staff.
• The approach may have an especially adverse impact on sustaining inpatient care in local communities, particularly in smaller units in remote and rural areas where a flexible approach is often required.
• It could lead to increased use of Bank or Agency staff.

Resources could be drawn away from one service to another. The risk identified here was around a whole-systems approach not being taken and particularly to the approach extending only to specific health services at the outset. The concern was that the budgets within integrated services may be skewed towards meeting the (potentially increased) staffing costs of those services which are covered by the tools at the expense of those services which are not. Specifically, that the existence of a legally-enforced approach could skew the priorities, funding and approach towards compliance at the expense of the staff groups or service settings outside of the scope of regulation.

Other less-frequently-identified risks are set out below. These risks tended to have been identified by smaller numbers of primarily organisational respondents.

Too narrow a focus. The fundamental risk identified here was that the legislation will not improve the staffing available to provide safe and effective care. This was linked to a view that the Bill is unlikely to help to improve patient outcomes if it is not designed explicitly to do so.

Poor timing. This was connected with a concern that the changes would result in a significant administrative and cost burden at a time when NHS and Local Authority services, along with other key stakeholders, are in the early stages of health and social care integration. It was suggested that now is the time to focus on service re-design and high quality, person-centred provision rather than administration.

Multiple systems and approaches cause confusion. It was suggested that if the proposed requirements are extended to social care settings, there will be the risk of duplicating existing arrangements or creating competing regulatory frameworks. It was also suggested that there could also be confusion as to the applicable requirements for nurses working in social care settings.

The approach and tools are not fit-for-purpose. The risks identified here tended to centre around the current tools not being fit-for-purpose, that they could become out of date easily and challenges associated with producing a single set of tools which would work for all.

On the first point, the fundamental concern was that the legislation could be used to justify insufficient and unsafe staffing if incorrect methodologies are used. An example given was that the growing and ageing population might be overlooked.

In terms of the existing tools, the perceived risk was that, by focusing on tools which are already available, and particularly by referring to them directly in legislation, a less than ideal set of arrangements could be 'locked in'. Work to improve the current approaches could then be stifled.

The other concern was that it may not be possible to produce a single approach or set of tools which works across the range of possible service delivery contexts and specialisms. For example, it was suggested that a single tool might not be able to consider the huge workload and workforce variation found even between GP practices.

Nursing and midwifery staff could be accountable but unable to affect the necessary changes. The specific concern or fear for those involved, was that they will be held accountable for failing to deliver the numbers and profile of staffing required under the safe and effective arrangements. The key reasons underpinning these concerns were that: in certain areas or specialties, it is simply not possible to recruit the necessary staff; and that the funding may not be made available to support the establishment suggested by the workforce planning tools.

It was suggested that exposing nurses and other staff to such risks is unfair and could impact on their Nursing and Midwifery Council registration. It was also suggested that there could be a risk of litigation, for example if members of the public feel they, or someone else, has been harmed because staffing levels were not safe.

Insufficient resources invested in infrastructure, training and time to use the tools. The risks identified centred around poorly understood or used tools consuming resources without delivering any tangible benefits. There was also a concern that increased administration time would take staff away from clinical duties and that ICT systems will not allow for efficient and effective record keeping.

Lack of 'buy in' from staff. In particular, it was suggested that if not funded or policed appropriately, the approach could be seen by staff as just another 'tick box' exercise.

Other risks identified included:

• A shift from patient or service user outcomes to being service provider driven, with staff numbers alone seen as a measure of patient safety.
• The potential for professions or services that do not have validated tools being disadvantaged in relation to their ability to influence allocation of resources.
• Innovation and transformation of services being restricted, especially the use of technology, volunteers and emerging non-clinical roles to enhance services.

Question 13 - What steps could be taken to deal with these consequences?

Ninety-one Citizen Space respondents made a comment at Question 13, as did all of the discussion groups. Some of the comments addressed directly the risks and consequences raised at the previous question. Others raised additional issues. Below, the steps identified are set out under the risk they would deal with.

The three most frequently-identified themes in relation to Question 13 were that to mitigate risks:

• Ensuring adequate funding is in place for health and social care services will be important.
• Any future workforce planning legislation needs to take into account the integrated practices of the Health and Social Care Partnerships.
• Collaboration with educational establishments should be improved.

Insufficient funding to cover any additional staffing requirements identified. This was the most frequently-commented on issue by some margin and was raised at discussion groups and by individual and organisational respondents. Suggested steps included ensuring that health and social care services are adequately funded. Specifically, any additional costs associated with ensuring safe and effective staffing should be covered.

Other steps were raised by smaller numbers of respondents and primarily by organisational respondents or at the discussion groups.

Too narrow a focus. Suggested steps included:

• Rethinking the scope of the Bill to ensure it underpins existing activity in the highest performing organisations. However, it was suggested that there would be consequences inherent in taking such as approach, including risking increased problems for poor-performing organisations.
• Ensuring that a wide range of opinions are canvassed during the consultation process and that the consultation period is sufficient to allow all views to be considered and the legislation to be amended accordingly.

Poor timing. Suggested steps included:

• Focusing on alternatives to ensuring high-quality, person-centred care rather than introducing safe and effective staffing legislation for nursing, midwifery and other staff groups.
• Promoting local governance and accountability related to quality care provision.

Multiple systems and approaches cause confusion. Suggested steps included that the proposed legislation and potential requirements should not be extended to social care settings at this time.

Resources could be drawn away from one service to another. Suggested steps included:

• Naming nursing, midwifery and organisations commissioning/delivering NHS functions on the face of the Bill but ensuring that the Bill permits future regulation to expand its scope. The Bill could be accompanied by a timetable for expansion.
• Ensuring any legislation takes account of the integrated working practices of the Health and Social Care Partnerships. This should include the scope for role re-configuration and development and skill mix review.
• Introducing regulations protecting 'other disciplines' work forces.

The approach and tools are not fit for purpose. Suggested steps included:

• Not naming tools or methodologies in primary legislation. Instead, detail could be set out in regulation and/or statutory guidance.
• Making it clear what the expectations on organisations are and what the consequences will be of a failure to comply with the requirements. Putting in place a communication strategy around statutory use of the tools.
• Including a duty on the Scottish Government to review tools regularly in line with emerging evidence and in partnership with professional and trade union organisations.
• Agreeing a national definition of what safe staffing and sustainable careers look like in partnership with medical colleges and healthcare staff.
• Constructing the approach based on real time analysis of staffing.
• Ensuring that any measurement for safe and effective staffing includes the total contribution to patient care not just nursing and midwifery.
• Ensuring there are robust processes in place around risk assessment.
• Considering whether the existing requirements for GP practices would achieve the same aim. If the existing measures are not enough, whatever new tool is introduced must work for all practices across Scotland and there must be a clear and agreed process outlining the responsibilities of the practice and the Health Board.
• Linking in with the National Care Home Contract Reform process, especially the Cost of Care Calculator work and workforce.

Difficulties in recruiting and retaining staff. Suggested steps included:

• Making links to student commissioning, including applying the tools to defining student numbers. Communicating with further education facilities.
• Making careers sustainable and attractive by supporting multi-disciplinary learning and working, encouraging varied and flexible careers and integrating health and social care workforces.
• Giving all staff access to opportunities for continuing professional development.
• Improving conditions and pay levels.
• Investing in a programme to better utilise the diversity of the 'labour pool' in areas of high unemployment.

Nursing and midwifery staff could be accountable but unable to affect the necessary changes. Suggested steps included:

• Accountabilities for delivering safe and effective staffing must be organisational. The Bill must reflect the different spheres of influence of professional leadership at different levels.
• The Bill should ensure that Senior Charge Nurses/Community Team Leaders are non-case holding and that they are provided with the education and support they require.
• Setting a 'cap' on claims against individual members of staff and/or the NHS.

Insufficient resources invested in infrastructure, training and time to use the tools. Suggested steps included:

• Providing training in the use of the tools.
• Ensuring staff have dedicated time to use the tools.
• If a tool is introduced and General Practices are to use it, then it must be accessible using existing ICT systems. A burden to fund access to additional ICT systems should not be placed on Practices.

Lack of 'buy in' from staff. Suggested steps included putting in place open communication and transparent processes for informed decision-making to promote public and staff confidence.