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

17. Role of Social Care And Social Work Improvement Scotland (the Care Inspectorate)

17.1 Which sections of the Act is this chapter about?

This chapter provides further detail on the following sections of the Public Services Reform (Scotland) Act 2010 (the "2010 Act"), all of which are inserted by section 12 of the Act:

• section 82A: Development of staffing methods;
• section 82B: Regulations: requirement to use staffing methods;
• section 82C: Review and redevelopment of staffing methods;
• section 82D: Review of duty on care service providers to ensure appropriate staffing;
• section 82E: Duty to consider multi-disciplinary staffing tools; and
• section 82F: Interpretation of Chapter.

A link to the Act can be found here. There are other links to useful information, including to other chapters of the guidance, embedded in this chapter; these are denoted in blue text.

17.2 Who does this chapter apply to?

All sections apply to the Care Inspectorate.

Section 82B of the 2010 Act will become applicable to care service providers where the Scottish Ministers make regulations to require the use of a staffing method by those persons. Care service providers are those who provide a care service listed in section 47(1) of 2010 Act.

17.3 In what settings and to which staff does this chapter apply?

Obligations contained in these sections apply either to all care services or only to particular types of care services. For example, section 82A of the 2010 Act currently applies to care home services for adults but in the future could apply to other care services if Scottish Ministers decide to specify other care services in law.

Section 82F of the 2010 Act states that care services referred to in sections 82A to 82E excludes those services provided by individuals who do not employ, or have not otherwise made arrangements with, other persons to assist with the provision of that service. This means that where a care service is provided by just one individual, for example an individual childminder who does not have any other person working with or for them, they are not required to use staffing methods or staffing level tools. It is important to note however, that these care services are still required to follow all other relevant provisions of the Act, e.g. relating to ensuring appropriate staffing and training of staff.

Where an obligation applies to a care service, it applies to all functions provided by all relevant staff working in that care service chapter 3, introduction provides more details on the types of individuals covered by the Act). Note that the definition of those working in a care service includes working for payment or as a volunteer, and working under a contract of service, an apprenticeship, a contract for services or otherwise than under a contract. This is wide-ranging and would include, for example:

• employees of the care service;
• agency and other temporary / contract workers;
• self-employed workers;
• those on apprenticeship schemes and other 'earn as you learn' schemes who are employed by the care service; and
• all volunteers.

Any reference to "staff", "staffing" or "working in a care service" within this chapter includes all these groups of people.

Students should not be considered as "staff" and 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.

Accountability for all the duties covered in this chapter remains with the Care Inspectorate and care service providers as appropriate and not with individuals who may be charged with carrying out certain actions.

17.4 What is this chapter about?

This chapter provides guidance on the functions of the Care Inspectorate inserted into the 2010 Act introduced by the Act. These encompass the development, review and redevelopment of staffing methods, including staffing level tools, along with the ability to carry out reviews of the effectiveness of the operation of the duty on care service providers to ensure appropriate staffing.

There is also provision should the Care Inspectorate develop and recommend a staffing method, for the Scottish Ministers to make regulations to require specific types of care services to use that method.

Throughout any process of development, review or redevelopment of such staffing methods and staffing level tools, there is a requirement for the Care Inspectorate to work collaboratively with stakeholders across the health and care sector. This will be essential to provide reassurance that any and all methods or tools developed for the care sector will be designed for the specific type of care service to reflect the unique demands and pressures. The development and validation of any methods or tools will be done in collaboration with professionals in that setting.

17.5 Section 82A Development of staffing methods

Section 82A makes provision for the Care Inspectorate to develop a staffing method for use by those who provide care home services for adults (adults being individuals who are aged 18 years or over). Following development and testing, the Care Inspectorate may then recommend the use of such a staffing method to the Scottish Ministers. In practice, these recommendations would be made through the current sponsorship arrangements between the Care Inspectorate and Scottish Government.

A staffing method sets out a framework or process to be followed by a care service provider to determine what appropriate staffing is in any particular care service and setting. This includes the use of staffing level tools and a range of other considerations such as where and how the service is being provided. The following paragraphs provide details on what a staffing level tool is and what other factors may be taken into account as part of a staffing method when determining appropriate staffing.

The Act also allows Scottish Ministers to make regulations to allow the Care Inspectorate to develop, test and recommend staffing methods for other types of care services. The purpose of this is to ensure that Ministers can prioritise development in line with Scottish Government requirements intended to meet the current and future needs of people experiencing care.

In developing such staffing methods it is essential that a collaborative approach is taken to ensure methods can be implemented in practice across diverse settings and staff groups and provide reliable and relevant information. To this end, the Act lists persons and organisations that the Care Inspectorate must collaborate with:

• Scottish Ministers;
• Healthcare Improvement Scotland;
• Scottish Social Services Council;
• every Health Board;
• every local authority;
• every integration authority;
• representatives of care service providers and people who use care services;
• trade unions and professional bodies representative of those working in those care services; and
• any other persons the Care Inspectorate considers appropriate.

In undertaking collaboration, the Care Inspectorate and persons / organisations they collaborate with must have regard to the guiding principles of the Act, along with aspects of this guidance relating to the operation of section 82A.

The Act requires that any staffing method must include the use of staffing level tools designed to provide:

• quantitative information relating to workload, based on the needs of people using the services of the care service provider. For example, the care service provider will input information on the numbers and needs of the people using its services at the particular point in time and the tool will provide outputs such as numbers and types of staff required; and
• quantitative and qualitative information relating to professional judgement. This requires individuals to assess staffing requirements based on their professional opinion of the current workload and the local context.

The outputs from the use of a tool or tools are then used to assist in determining appropriate staffing for the care service. It is important to remember that the use of such staffing level tools form only one part of the larger staffing method and any outputs must be considered alongside the other components.

Any staffing method that is developed and recommended by the Care Inspectorate may include requiring care service providers to put and keep in place risk management procedures. Any such risk management procedure would need to be appropriate to the particular type of care service, the needs of people who use the service and recognise positive risks, as defined in the Health and Social Care Standards paragraphs 2.24 and 2.25.

Any staffing method that is developed and recommended by the Care Inspectorate may include requiring care service providers to take account of the following factors:

• the current staffing levels and any vacancies;
• the local context in which the care service is provided. Local context could include a variety of considerations about where and how the care will be delivered. For example, location of the care service, e.g. remote and rural area; the type of care service; aims and objectives of the care service; and demographic factors;
• the physical environment in which a care service is provided. For example, this would include the layout of the building;
• any assessment of the quality of a care service;
• the needs of the people who use the care service;
• comments and feedback from people experiencing care, along with individuals who have a personal interest in their care. These could include family members and carers;
• comments and feedback from people working in the care service;
• recommendations from senior care or health care professionals with qualifications and experience that are appropriate to the care service;
• care services standards and outcomes published by the Scottish Ministers, such as the Health and Social Care Standards;
• indicators or measures of the quality of care;
• any relevant published guidance; and
• any appropriate clinical evidence and research.

17.6 Section 82B Regulations: requirement to use staffing methods

Following the development / redevelopment of a staffing method by the Care Inspectorate and its recommendation to the Scottish Ministers, the Ministers can then make regulations that require care service providers to use that method.

These regulations provide for:

• the types of care service and types of individuals working in the care service that are included in requirements to use the staffing method;
• the minimum frequency at which the staffing method must be applied; and
• the staffing level tools that must be used as part of the staffing method.

17.7 Section 82C Review and redevelopment of staffing methods

Any staffing method that is contained within regulations as per section 82B, i.e. a staffing method that care service providers are required to use may be subject to review and redevelopment as appropriate. This is important as any staffing method needs to remain contemporary and fit for purpose in order to provide reliable information to inform staffing requirements across diverse practice settings and staff groups.

This section of the Act makes provision for the Care Inspectorate to carry out such a review to consider whether any particular staffing method is still effective. In practice, intelligence from care service provider experience of using the method, analysis of output of the method (including staffing level tools) and / or significant policy or practice change will inform the timing of such a review.

Where a staffing method is no longer considered effective, the Care Inspectorate can recommend revocation or replacement to the Scottish Ministers.

The Care Inspectorate may develop a revised staffing method and recommend this to the Scottish Ministers. Where any method is redeveloped / revised, the Care Inspectorate must meet the same requirements as for developing a new method in section 82A, including collaboration with listed stakeholders, inclusion of staffing level tools and consideration of the same range of factors. This is to ensure that any revisions of staffing methods go through at least as rigorous development as any new method.

In addition to the Care Inspectorate developing revised staffing methods, the Scottish Ministers may also direct the Care Inspectorate to carry this out. The purpose of this is to ensure that Ministers can prioritise development in line with Scottish Government requirements intended to meet the current and future needs of people experiencing care.

17.8 Section 82D Review of duty on care service providers to ensure appropriate staffing

This section enables the Care Inspectorate to carry out reviews of the effectiveness of the operation of section 7 of the Act: the duty on care service providers to ensure appropriate staffing for the health, wellbeing and safety of people using their services; the provision of safe and high-quality care; and, in so far as it affects either of those matters, the wellbeing of staff. No frequency of such reviews is prescribed in the Act; instead it is left to the decision of the Care Inspectorate as to when such a review would be appropriate.

Once such a review has been completed, a report may be published by the Care Inspectorate to the Scottish Ministers and more widely as it deems appropriate. Again, this section enables the Care Inspectorate to make a decision about the most appropriate timing of carrying out reviews and the most appropriate means of publishing reports.

17.9 Section 82E Duty to consider multi-disciplinary staffing tools

When developing a staffing level tool as part of a new or revised staffing method, the Care Inspectorate must consider if the tool should be multi-disciplinary i.e. apply to more than one professional discipline. The intention of this is to ensure that, where appropriate, the workload of all the different groups of people working in the particular care service is considered for inclusion in the development of staffing level tools. This is to ensure that, in future, staffing level tools will be appropriate for use in multi-disciplinary settings and fit for purpose in contemporary service delivery models.

Having considered whether a tool should apply to more than one professional discipline, the Care Inspectorate can recommend to Scottish Ministers that a staffing level tool that is part of a staffing method should apply to more than one professional discipline.