Health and Care (Staffing) (Scotland) Act 2019: overview

For clarity, within health services, we do not consider housekeeping, administration, maintenance, catering or any volunteers to be subject to the duties within the Act. This does not mean that these roles are not vital in the running of health services, it is simply that they are not within the scope of this Act.

Volunteers in health care services are not referred to in the Act, however it is recognised that in some situations there are volunteers working in clinical roles in health care, for example as community first responders and wildcat cardiac responders in the Scottish Ambulance Service. These individuals have an important role in delivering emergency health care, particularly in remote and rural locations. However, they have no minimum contractual requirement, are not rostered on shifts and do not replace clinical employees. For these reasons, they are not considered to be within the scope of the Act.

In general, non-clinical managers are also not within scope of the Act, and there is no requirement to report on the use of high-cost agency workers for this group, no requirement to ensure adequate leadership time etc. However, non-clinical managers could have specific duties under the Act in certain circumstances. For example, they could be involved in the identification, mitigation and escalation of risks relating to staffing. It is important, therefore, that these individuals have an understanding of the Act and receive sufficient training and resources to allow them to carry out their specific role.

Care services

Section 7 of the Act states:

“Any person who provides a care service must ensure that at all times suitably qualified and competent individuals are working in the care service in such numbers as are appropriate for-

(a) the health, wellbeing and safety of service users,
(b) the provision of safe and high-quality care, and
(c) in so far as it affects either of those matters, the wellbeing of staff.”

Care services operate differently to health care services and it is our opinion that ‘suitably qualified and competent individuals’, in a care environment, includes all those involved in the care of the person using the service. This would include, but is not limited to;

• nursing staff
• care staff
• housekeeping
• catering
• maintenance
• volunteers
• those supporting social activities and engagement in the community
• visiting staff such as chiropodists, district nursing, GP’s etc

There will be staff who are working for the care service but are not directly involved in the care of the person using the service, such as those in finance and marketing, and these individuals would not be included within the scope of the Act.

This approach is in line with how Regulation 15 of the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011 was interpreted and how the Care Inspectorate also interprets appropriate staffing.

The Act applies to the following care services:

• a support service
• a care home service
• a school care accommodation service
• a nurse agency
• a childcare 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
• a housing support service

It has been brought to our attention that social work services were inadvertently included in the list of care services that were within the scope of the Act. This is incorrect and we have subsequently removed it from this list. To confirm, social work services are not within the definition of a ‘care service’ within the Act. (updated 06 October 2023).

Students

Students are referenced in the Act in section 12IK which details the types of health care, locations and employees to which the common staffing method applies. This states that when applying the common staffing method, “employees” does not include students studying to enter the Nursing & Midwifery Council register or the register of medical practitioners maintained by the General Medical Council.

This applies to pre-registration nursing, midwifery and medical students that undertake any defined ‘supernumerary placement’ as part of their learning programme. Staff undertaking training whilst employed or supported on apprenticeships or other ‘earn as you learn’ models, should be included in the definition of a ‘student’ and so 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.