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

Chapter 6 - Monitoring requirements

The penultimate part of the consultation paper looked at the proposals for performance and monitoring processes.

Question 14 - Do you agree with the proposals to use existing performance and monitoring processes to ensure compliance with the legislative duty and associated requirements?

Table 23: Question 14 – Responses by type of respondent.

Type of respondent	Yes	No	Not answered	Total
Individuals	47	24	5	76
Organisations:
Health & Social Care Partnership	1	2	2	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	4	2	6	12
Total organisations	19	4	12	35
All respondents	66	28	17	111
% of all respondents	59%	25%	15%	100%
% of those answering the question	70%	30%		100%

A majority of respondents, 70% of those who answered the question, agreed with the proposals to use existing performance and monitoring processes to ensure compliance with the legislative duty and associated requirements. The majority of both individual and organisational respondents agreed (47 out of 71 respondents and 19 out of 23 respondents respectively). However, a majority of Health and Social Care Partnership respondents disagreed.

Table 24: Question 14 – Discussion Groups

Yes	No	Mixed Views	Not answered	Total
15	5		5	25

Fifteen discussion groups agreed, five disagreed and five did not answer the question.

There were 55 further comments made through Citizen Space and all of the discussion groups made a comment. Comments made at this question tended to be brief.

The three most frequently-identified themes in relation to Question 14 were:

• The implications of legislation on social care and Health and Social Care Partnerships needs to be better understood
• The role of existing scrutiny bodies, for example the Care Inspectorate, needs to be considered.
• Clear lines of accountability will be required across both professions and organisations.

A small number of respondents, including a Health and Social Care Partnership and a Professional College, Body, Group or Union respondent, had fundamental concerns stemming back to their wider concerns about the approach being proposed, including the intention to legislate. A small number of individual respondents noted that they have limited knowledge of the current arrangements and/or required further information before being able to comment further.

Those who disagreed most frequently had concerns that the current approach is not fit for purpose. A number of those who agreed or did not answer the question also made support conditional on there being improvements to the existing processes. Those raising these concerns ranged across the discussion groups and individual and organisational respondents.

In terms of elements of the approach which respondents felt need to be changed or refined, suggestions included that processes need to be streamlined as much as possible. Specific suggestions, made by only a small number or one respondent, included:

• A national reporting template should be developed for nursing and midwifery. It should include quality outcomes and be tailored to the particular context by, for example, taking account of service user needs or configuration of available space.
• The approach will also need to be appropriate to non- NHS settings.
• The approach used needs to take the views of those using services into account.
• The EiC dashboard could be used for monitoring.
• It will be important for any systems used to be integrated.
• Monitoring should be an administrative task, but with managerial and/or clinical oversight.

A small number of NHS body or Board respondents also commented on the issue of accountability, including whether the proposals would have implications across the spectrum of professional accountability structures and codes of conduct. There was a connected question as to what role organisations such as the Nursing and Midwifery Council, General Medical Council and Scottish Social Services Council would play. On the more general point of where responsibility for monitoring should lie, comments included that reporting should be required through Board Clinical Governance mechanisms and as part of local and national performance reviews.

With specific reference to inspection of care sector services, an Other public body respondent noted that the Care Inspectorate acts as the improvement and scrutiny regulator and that they assess workforce planning/experience at the point of registration and also assess the application of workforce planning during regular inspections. It was also noted that, from April 2017, the Care Inspectorate and Healthcare Improvement Scotland will inspect jointly the strategic commissioning arrangements of integration authorities. An NHS body or Board respondent suggested there is scope for some external assurance to sit within Healthcare Improvement Scotland's wider quality of care review process.

Following on from the consideration of where responsibilities may lie, there were also comments around compliance. A small number of NHS body or Board respondents noted that the primary purpose of monitoring should be to act as a driver for action. They suggested that there is no point in monitoring information that tells an organisation there is a risk if no action is taken to mitigate that risk. It was suggested that organisations should report on risks of implementation or taking the decision not to implement outcomes and subsequent recommendations.

Other comments considered transparency and were made by individual and organisational respondents and at a small number of the discussion groups. Suggestions included that more robust external scrutiny, possibly including on-site inspection, is required. However, it was also suggested that any approach to inspection needs to recognise that, although not all inspectors may have a clinical background, they will need an understanding of the services being inspected. It was also suggested that greater clarity is required about where and when information on safe staffing is presented to the public. There were also questions around what if any penalties are envisaged for non-compliance. It was suggested that consideration will need to be given to trigger points and escalation routes in the case of non-compliance but that it is essential that these are not exclusive of an improvement approach.

Finally, an NHS body or Board respondent suggested that it is important to remember that compliance alone does not necessarily equate to good outcomes and that the key issue is what the information tells us about quality and safety in the local setting.

Question 15 - In what other ways could organisations' progress in meeting requirements be monitored?

There were 68 further comments made through Citizen Space and 24 discussion groups made a comment. As at the previous question, a number of the comments were brief. The three most frequently-identified themes at Question 15 were:

• There are existing scrutiny or governance processes which could be drawn on.
• Staff feedback, including anonymous feedback and any data on staff morale, should be used.
• There would be value in external reporting to a central body or the Scottish Government.

Comments sometimes focused on key features of any regime. Each issue tended to be raised by only a small number or one organisational or individual respondent or at one of the discussion groups. They included that it should be:

• Mandatory.
• Based on reporting to a central body or government.
• Focus on reporting by exception where standards are breached.
• Have an external component, for example through NHS boards acting as critical friends to each other or via existing external inspection processes.
• Include a benchmarking element.
• Offer support to implement tools and learn from others through sharing experiences.

In terms of structures, and where responsibility should lie, suggestions included through:

• Clinical Governance Committees.
• Health and Safety Committees.
• Staff Governance Committees.
• Area Partnership Forums.
• A National Oversight Group.

Other suggestions included that that each area should identify an executive lead and that there should be internal, local routes for flagging and escalating concerns.

In terms of specific routes through which progress could be monitored, suggestions included through:

• Scottish Standard Time System reports direct to the Information Services Division ( ISD ) Scotland.
• HEAT Targets ^[7] reports.
• EiC.
• National databases such as Lanquip or Datix.
• Local and Regional Delivery Plans.
• Service Improvement Plans.
• Annual Reports. Specifically, every IJB is required to publish an annual performance report from July 2017, reporting on the legislative requirements encapsulated within the 23 National Integration Indicators.
• Health Board Performance monitoring.
• Automated monitoring, for example through dashboards.
• Local governance or risk management reporting.

In terms of the types of information which could be considered, it was suggested that it will be important to establish a core data set for all Boards. Specific suggestions as to the type of information or data which could be used included staff feedback, including anonymous feedback and including any data on staff morale. This was the most frequently-made point at this question and was particularly likely to have been highlighted by individual respondents. Patient feedback was the other frequently-made suggestion. Other less frequently-made suggestions were:

• National Performance Indicators.
• Data on staffing levels and availability.
• Other evidence such as delayed discharge numbers, waiting times, falls, infection control measures, care at home, and reducing hospital admissions.
• Practice observation.

It was also suggested that it will be important to use narrative to set any analysis developed in context.

Question 16 - What should the consequences be if organisations do not comply with requirements?

There were 80 further comments made through Citizen Space and all of the discussion groups made a comment.

The three most frequently-identified themes at Question 16 were:

• The focus should be on improvement and on being supportive rather than punitive.
• There should be corporate or political liability where improvements are not made.
• Actions must be set within the context of reducing public sector resources.

Some of the comments made general points about the overall approach to dealing with compliance failure. These comments included that the focus must be on safety and that non-compliance needs to be viewed alongside the organisation's approach to ensuring safety and outcomes for patients or service users. The most frequently-made suggestion was that any approach should be supportive rather than punitive and should concentrate on supporting improvement. In particular, it was suggested that there is a danger that negative consequences of not complying will inhibit a culture of openness and honesty. This range of issues was raised at discussion groups and by individual and organisational respondents.

However, it was also suggested that there should be consequences if an organisation continues to fail. This was most likely to be suggested by individual respondents or raised at a discussion group. It was also suggested that if harm is a consequence of not meeting the requirements set out in legislation, then some corporate and political liability should be considered. Other comments included that:

• Accountability should be to the Scottish Government.
• Naming and shaming may be required.
• Health and Safety legislation may be relevant.
• In the care sector, this needs to be tied into contractual requirements and breaches within the National Care Home Contract.
• The tools used should be kept under review to ensure that they are not contributing to any non-compliance.

In terms of processes which should be gone through or activities which should be triggered by non-compliance, the approach used by the Care Inspectorate was cited by a small number of organisational respondents. It was noted that the Care Inspectorate employs requirements and recommendations ^[8] and, if a service consistently fails to achieve an acceptable quality of care, it has powers to enforce closure by applying to the Courts to cancel a registration. The arrangements set out in Section 22 of the Public Finance and Accountability (Scotland) Act 2000 were also highlighted. The Section 22 arrangements place duties on NHS Healthcare Improvement Scotland in the first instance to raise concerns in similar ways to the Auditor General through an annual review process. It was suggested that using a similar approach would give the Scottish Parliament the information to scrutinise failures and ensure that commissioning and delivery organisations, along with those setting the context in which they work such as the Scottish Government, can be called to account publicly for failures in safe and effective staffing.

Other process-related comments, which tended to be made by a small number of individual respondents or be raised at a discussion group, were:

• It is the Board, Chief Executive or Senior Management Team who should be held accountable. Where leadership is poor or failing there should be consequences, and this should be stated explicitly in Executive and Non-Executive job descriptions.
• There should be peer review opportunities before any other external scrutiny processes are initiated.
• There should be external examination which identifies why the non-compliance has occurred and then supports the service to achieve compliance.
• There may be a role for some form of 'special measures' to bring in external support.
• Failure to act should be met with a time-limited improvement notice.
• Information about the failures should be published, for example on the Care Inspectorate website.

In terms of actions which organisations should be required to take, suggestions included developing an action, improvement or recovery plan. Parallels with the Healthcare Environment Inspectorate ( HEI) Inspections regime were noted. A small number of the discussion groups suggested there should be thorough investigation/process reviews to determine why a standard has not been met.

It was also noted that services need to be safe and that immediate action may be required, for example by stopping delivering the affected service or re-provisioning of the service. A similar suggestion was that there could be a requirement to reduce bed numbers until any problems are rectified.

In terms of any specific consequences or penalties which should result from non-compliance, suggestions included financial penalties or fines. This was a frequently-made suggestion and tended to be made by individual respondents. However, others felt that financial penalties were not the answer. It was suggested that they could simply encourage a downward spiral for those organisations which are already struggling to comply. Organisational respondents tended to be the ones of this view. Other comments included:

• Care organisations should receive lower grades at future inspections.
• As noted above, there should be consequences for senior management and/or the Board of the organisation.

Finally, there were questions as to the consequences for the Scottish Government in terms of: appropriate funding and resource allocation; commitments to student numbers; and other workforce supply issues.