Health and Care (Staffing) (Scotland) Act 2019 - draft statutory guidance: consultation analysis

2. Summary of responses

2.1 Questions 1a and 1b

Question 1a) Do you think the guidance is clear and easy to understand?

Question 1b) Please detail any specific areas of the guidance that you found unclear or hard to understand

16 individuals and 34 organisations entered free text answers providing detail on specific areas of guidance they found unclear or hard to understand.

2.2 Questions 2a and 2b

Question 2a) Do you think the guidance is comprehensive, in that it contains sufficient detail to be able to support organisations in meeting obligations placed on them by the Act?

2b) Please detail any specific areas where you felt information was missing or incomplete

19 individuals and 37 organisations entered free text answers to this question.

2.3 Question 3

Question 3) Do you have any other comments on the draft guidance?

19 individuals and 39 organisations entered free text answers to this question.

2.4 General themes

2.4.1 Document layout and level of understanding

There were mixed comments regarding the layout of the document and how clear and easy it was to understand. Some respondents said that the guidance was clear, thorough and easy to understand, others felt that it was lengthy, repetitive, difficult to interpret and contained specialised and technical language. The statutory guidance covers all of the requirements of the Act, which does result in it being a lengthy document; we will make it clearer in the introduction which chapters relate to which organisations and which duties, so that readers can more easily identify where to find relevant information. It is acknowledged that the guidance can be repetitive across the chapters; this was done so that readers could read chapters in isolation, without having to constantly refer to other chapters. The guidance was drafted by various working groups comprising individuals who work in health care / care services and is aimed at an audience who work in these sectors, therefore does contain specialist and technical language that may not necessarily be understood by everyone. With regard to this, we will:

• Publish a non-technical summary of the Act, aimed at a non-specialist public audience on the Scottish Government website;
• Continue to work with Healthcare Improvement Scotland on a series of ‘quick guides’ aimed at health care staff, explaining the various duties in the Act;
• Continue to work with NHS Education for Scotland to produce training resources specific to the Act for staff in health care and care services; and
• Provide links in the statutory guidance to external non-statutory resources about the Act to provide readers with further information, such as those produced by Scottish Government, NHS Education for Scotland, Healthcare Improvement Scotland and the Care Inspectorate.

It is also noted that for care services, the requirements of the Act are very similar to existing requirements under other legislation and Care Inspectorate guidance on staffing produced previously will be updated to continue to provide support for care service providers.

There was also a comment that the guidance for health care services seemed weighted towards the acute sector and it was difficult to interpret for non-acute services. We will consider this for the final version to see what additional information / examples we can add to try to address this concern.

2.4.2 Level of detail

A number of respondents commented that although the guidance contains information on what organisations need to do, it does not contain details on how they should do it and that the guidance is open to interpretation as to how it is applied in specific organisations. The statutory guidance provides information on various requirements introduced by the Act and supports organisations in meeting obligations placed on them. Organisations however need to ensure that they meet their obligations under the Act (including obligations to have regard to statutory guidance) and in doing so will need to consider how the requirements of the Act should be met in their specific organisation.

For health care, the Act covers all services provided by Health Boards, relevant Special Health Boards and NHS NSS, all clinical staff, and all service models. These will vary greatly, e.g. acute services versus community services, large city locations versus remote and rural locations, telephone advice through NHS 24 and provision of secure forensic mental health services by the State Hospital. For care services, the Act covers a wide variety of services including adult care homes, child care, secure accommodation and fostering and adoption services. It is therefore not practicable for the guidance to prescribe how the Act should be implemented in specific organisations . Organisations have the knowledge about how their own services operate and therefore how the requirements of the Act should be met. Support is being provided to organisations by Scottish Government, Healthcare Improvement Scotland and the Care Inspectorate throughout this process.

2.4.3 Organisations in scope of the Act

Respondents felt that the guidance was confusing in that it did not identify clearly enough which sections of the Act and which guidance chapters applied to which organisations. We will therefore revise the introduction to the guidance to make this clearer. Specific comments related to:

• Whether independent health care providers are within the scope of the Act;
• Which duties apply to health care and which duties apply to care services;
• Which types of care services are included; and
• The responsibilities of integration authorities with regard to health care services.

Regarding independent health care providers, these organisations and their staff are not included within the scope of the Act and they have no requirement to follow any duties relating to health care staffing. The duties relating to health care staffing contained in section 4 of the Act are for Health Boards, specific Special Health Boards and NHS NSS in relation to their staff. Independent health care providers can be contracted by Health Boards, Special Health Boards or NHS NSS to provide services. In these circumstances, there is a requirement on the Boards / NHS NSS to consider the guiding principles for health and care staffing (found in section 1 of the Act) and the need for the independent provider to have appropriate staffing arrangements in place. However, this duty is on the Boards / NHS NSS, not on the independent provider and even when contracted to provide a service to the NHS, the independent provider and their staff do not fall under the scope of the Act.

A number of respondents commented that the guidance was confusing as to which chapters applied to health care and which to care services and that there were more chapters devoted to health care compared to care services. To confirm, the only chapters that apply to care services are chapters 15, 16 and 17. There are less chapters for care services as there are less requirements placed on them in the Act. In addition, the requirements for care services are similar to the legislation they are already required to comply with. We will make this clearer in the final version. There were also queries as to the position of services, such as hospices who could provide both health and care services and which parts of the Act would be applicable which we will also confirm.

There was confusion as to the types of care services that would fall within the definition of a ‘care service’. In the guidance we have stated that the types of care services that are required to comply with the Act are those listed in section 47(1) of the Public Services Reform (Scotland) Act 2010. We recognise that it would be more helpful to list the types of care services rather than refer to another Act and we will do this for the final version of the guidance. For information, the care services in scope are:

• a support service;
• a care home service;
• a school care accommodation service;
• a nurse agency;
• a child care agency;
• a secure accommodation service;
• an offender accommodation service;
• an adoption service;
• a fostering service;
• an adult placement service;
• child minding;
• day care of children; and
• a housing support service.

There were a number of comments regarding clarification of the responsibilities of integration authorities with regard to health care services. Part 2 of the Act is entitled “Staffing in the NHS” and contains the duties to be followed by Health Boards, relevant Special Health Boards and NHS NSS in relation to staffing. The Public Bodies (Joint Working) (Scotland) Act 2014 put in place a legislative framework to integrate health and social care services in Scotland. Under this framework, Health Boards delegate certain health care functions to an integration joint board or a local authority.

The Health and Care (Staffing) (Scotland) Act 2019 does not mention the responsibilities of integration authorities in relation to health care services and respondents asked that where health care functions are delegated who would be responsible for complying with the requirements of the Act. We stated in the guidance “with regard to integration authorities, organisations should be familiar with, and refer to, requirements under the Public Bodies (Joint Working) (Scotland) Act 2014 and the associated statutory guidance to the 2014 Act.” Respondents commented that this was not very helpful and they would like more detail on the interaction between the Public Bodies (Joint Working) (Scotland) Act 2014 and the Health and Care (Staffing) (Scotland) Act 2019, with clear wording on which organisation would be responsible for complying with the requirements of the Act in these circumstances. We are considering these comments at present and will keep stakeholders updated.

2.4.4 Staff in scope of the Act

The Act does not list which groups of staff or staff roles are included in the provisions (with the exception of section 12IJ “duty to follow the common staffing method”), however we have published a separate list of staff roles covered by the Act and a link to this was in the introduction chapter of the guidance. There were several comments from respondents highlighting formatting issues with the list and omissions relating to dental and public health roles, which we have corrected. There was a comment about the inclusion of social work services; we confirm that these are not included in the scope of the Act and have updated the staff in scope list to reflect this. There were also comments about independent health care providers; as stated above these individuals are not included within the scope of the Act and we will make that clearer in the revised version of the guidance.

There was one comment questioning why the guidance makes reference to specific roles in health care if all workers are covered. The section 12 IA duty refers to ensuring that “suitably qualified and competent individuals, from such a range of professional disciplines as necessary, are working in such numbers as are appropriate” for the health, wellbeing and safety of patients, the provision of safe and high-quality health care, and in so far as it affects either of those matters, the wellbeing of staff. ”This refers only to clinical staff and staff who provide clinical advice and these groups are then detailed in the list of staff roles. Staff groups such as housekeeping, administration, maintenance or catering do not fall within this description and are not within the scope of the Act in terms of ensuring appropriate staffing. It is important to emphasise that this does not mean these groups of staff are not vital to ensuring the running of the NHS, simply that the Act does not make provision in terms of ensuring appropriate staffing in respect of those staff groups. The list of staff roles has a separate section for care services staff which is wider in scope and includes all those involved in the care of the person using the service.

There was also a comment about managerial roles, in that they play a key function in decision making in relation to staffing but that we have not specifically mentioned these roles. A lot of managers will be covered under the staff in scope list as they are, for example, registered doctors, nurses, dentists, allied health professionals etc. Non-clinical managers would not fall within the scope of the Act, in that organisations will not be required to have real-time staffing assessment in place for non-clinical staff, will not be required to report on agency use of non-clinical staff, will not have to ensure adequate time to lead etc. However, it is appreciated that they will still have specific duties under the Act, such as the recording or escalation of staffing risks (”individuals with lead professional responsibility (whether clinical or non-clinical)). We appreciate this can cause confusion and will look at providing improved explanation in the final version of the guidance.

Comments from respondents were made about the inclusion / exclusion of volunteers and students. Regarding volunteers in health care, we have stated in the staff in scope list that these are not within the scope of the Act. As stated above it is our opinion that “professional disciplines” refers to clinical staff and staff who provide clinical advice. We had, incorrectly, assumed that no volunteers would be carrying out such roles but we are revisiting this to see if we need to make specific changes to this guidance, for example the Scottish Ambulance Service utilises volunteers in clinical roles. Again, it should not be concluded from this that volunteers in general do not perform a vital role, it is just that non-clinical roles (both paid and unpaid) are not within the scope of the Act in terms of ensuring appropriate staffing.

The Act is clear in stating that volunteers are included within the definition of “working in a care service” and therefore are included when applying the duties to ensure appropriate staffing and staff training in care services. Concerns were raised by some respondents as to the inclusion of volunteers and whether that should be qualified by stating that only volunteers who meet certain criteria should be included. Other comments stated that the guidance should distinguish between the needs and expectations of volunteers versus paid staff and whether the inclusion of volunteers would lead them to be engaged in roles that were inappropriate (i.e. replacing paid staff). To provide reassurance, care services already have to follow very similar legislation regarding ensuring appropriate staffing and staff training under the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011 and these state that references to employees include volunteers, i.e. volunteers are already considered under staffing legislation and the Act therefore should not represent a significant change.

Regarding students, several respondents highlighted that our wording in the guidance document did not match the wording in our staff in scope list online and we will ensure this is corrected for the final version. There were also comments that by the guidance stating that students should be supernumerary, this could cause issues in services using “earn as you learn” models where individuals are counted as part of the staffing complement. This is a misunderstanding; the guidance does not state that students should always be supernumerary, it states that students should be treated as supernumerary when “they are participating in a supernumerary placement or are undertaking protected learning time as detailed within the relevant course outline or conditions of employment”. This is not necessarily all of the time they are at work but will depend on their learning model and contract of employment.

2.4.5 Non-compliance

Respondents commented that the guidance contained no information as to the consequences of organisations being non-compliant with the legislation. With regard to care services, the Care Inspectorate will continue to register, inspect and monitor care services in the same manner as they do currently. Care services are currently required to ensure appropriate staffing and staff training under the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011. The requirements of the Act are very similar to these and will be regulated in the same way. We will add text to the final version of the guidance to explain this.

Regarding the compliance of Health Boards, Special Health Boards and NHS NSS, there are no specific measures in the Act regarding non-compliance. However, given that the Act inserts a number of duties into the National Health Service (Scotland) Act 1978, powers available to Scottish Ministers in the 1978 Act in relation to failure of organisations to carry out functions are also applicable in respect of these new staffing duties. HIS also have duties under the Act to monitor the compliance of Health Boards, Special Health Boards and NHS NSS. Notwithstanding this, it is important to note that the aims of the Act are not about a binary assessment of compliance / non-compliance or pass / fail but rather about identifying risks and addressing these to implement improvement. This includes consideration of innovation, different staffing models and service redesign to make best use of existing staff resource.

2.4.6 Duties of Scottish Ministers

Comments were made that, although the Scottish Ministers have duties in the Act, details about these were not included in the guidance. This was deliberate as the guidance is aimed at organisations external to the Scottish Government, providing them with information to support them in being able to understand and implement their relevant duties. However, we appreciate that it would be helpful to explain what duties the Scottish Ministers have and we can include this in the final guidance document.

2.4.7 Implementation

Finally, a number of respondents queried the timing of the implementation of the Act, given the current pressures within health and social care. The Act was approved by the Scottish Parliament in 2019 so there will already be an almost five-year interval by the time it is commenced on 01 April 2024. We would make the following points with regard to the timescale:

• The Scottish Government, Healthcare Improvement Scotland and the Care Inspectorate have been engaging with and supporting organisations since 2019 in preparing for the implementation of the Act. This has included producing educational resources, newsletters and guidance, conducting webinars and engagement sessions, and carrying out a comprehensive testing programme;
• We have been clear that the Act will not by itself solve the issues of staffing in the health and social care sector, but will work alongside other policies and initiatives;
• The Act, alongside the introduction of eRostering (a national electronic rostering system), will allow improved data collection, more robust governance, more efficient and effective rostering practices and pinpoint opportunities for service redesign and innovation;
• When the Act is commenced on 01 April 2024, organisations will be required to comply with all the duties. We do however recognise that this is not a pass / fail situation and as more resources become available and learning takes place over the first year, and years to come, we will expect to see incremental improvements and compliance; and
• For care services the requirements of the Act are similar to existing requirements under the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011 which care service providers have had to comply with since 2011.