Commentary on Sections Part 2 – Staffing in the NHS Section 4 – NHS duties in relation to staffing
18.This section makes a number of changes to the 1978 Act to introduce duties on ensuring appropriate staffing for all geographical Health Boards, and the Agency, by inserting new sections 12IA to 12IO in subsection (2). Subsections (3) and (4) make minor changes to the 1978 Act as a result of the new sections introduced.
19.New section 12IA makes equivalent provision for the NHS to the existing staffing duty on care service providers in Regulation 15 of the Social Care and Social Work Improvement Scotland (Requirements for Care Service) Regulations 2011 (S.S.I. 2011/210) (“the 2011 Regulations”) – restated by section 7 of the Act (see paragraphs 54 to 55 below). It introduces a duty on all geographical Health Boards and the Agency to ensure that an appropriate number of suitably qualified and competent individuals, from such a range of professional disciplines as necessary, are working at all times for two related purposes: for the health, wellbeing and safety of patients, for the provision of safe and high-quality health care (and, in so far as it affects either of these, the wellbeing of staff). Subsection (2) lists a number of factors that Health Boards and the Agency must have regard to when determining appropriate numbers of staff - this applies to all staff groups and all types of health care, including those not covered by the common staffing method in 12IJ.
20.In referring to individuals generally, rather than to employees of Health Boards, the drafting of section 12IA would allow for the possibility of compliance via the securing of third party agency staff (although the expectation is that this would only be done where strictly necessary, reflecting current best practice). In contrast, the duties imposed by sections 12IJ (see subsection (2)(c)(xi)), 12II,12IL and 12IF(2)(c) relate to employees only, as defined in section 12IO.
21.New section 12IB makes provision for situations where a Health Board, relevant Special Health Board or the Agency secures the services of an agency worker. Subsection (2) sets out that the amount that Health Boards and the Agency pay to secure the service of an agency worker should not exceed 150% of the amount that would be paid to a full-time equivalent employee of the Health Board, relevant Special Health Board or the Agency to fill the equivalent post for the same period. When, despite subsection (2), a Health Board does pay an amount higher than 150% within a quarterly reporting period, they must report to Scottish Ministers the number of occasions in that period when an amount higher than 150% was paid; the amount paid on each occasion (expressed as a percentage of the amount that would be paid to a full-time equivalent employee) and the circumstances that have required the higher amount to be paid. Scottish Ministers must then publish the information from Health Boards on the amount spent on all agency workers, and the reports received by them.
22.New sections 12IC and 12ID place a duty on Health Boards and the Agency to have arrangements in place for real-time, dynamic assessment of staffing requirements and identification of risks to the health, wellbeing and safety of patients and staff or the provision of safe and high quality health care caused by staffing levels (and to staff wellbeing if it impacts on those matters).
23.These provisions set out that there must be a procedure for any member of staff to identify such a risk, a procedure for the notification of any such risk to an individual with lead professional responsibility (whether clinical or non-clinical) in that area and a procedure for the mitigation of such risks by an individual with lead professional responsibility (whether clinical or non-clinical) in that area. This individual must seek and have regard to appropriate clinical advice, as necessary, when mitigating the risk. Where this is not possible, section 12ID puts a duty on Health boards and the Agency to have in place a procedure for the escalation of the risk to the appropriate decision maker within the organisation, who must seek, and have regard to, appropriate clinical advice in reaching any decision, where necessary. Decisions must be notified to all those involved in identifying the risk, those involved in attempting to mitigate the risk, those involved in reporting the risk, and those who gave clinical advice. Any of these individuals may record disagreement with the decision reached, and request a review of the final decision on a risk – unless that decision has been taken at Board level.
24.Health Boards and the Agency must encourage and enable staff to use the procedures in section 12IC to identify and notify risks, and raise awareness amongst staff about the procedures in section 12ID. Health Boards and the Agency must also train individuals with lead professional responsibility, and other senior decision makers, in how to implement the arrangements for the identification, mitigation and escalation of risks and to ensure that they are given adequate time and resources to do so.
25.New section 12IE places a duty on Health Boards and the Agency to have arrangements to address severe and recurrent risks. They must put and keep in place arrangements to collate information relating to every risk escalated to a level to be determined appropriate by the Health Board or Agency, and identify and address those risks which are considered to be either (or both) severe or liable to occur frequently. These arrangements must include a procedure for the recording of such risks; the reporting of them, as necessary, to a more senior decision-maker – including to the Board, where appropriate; the mitigation of the risk, where possible – with appropriate clinical advice sought in doing so; and the identification of actions to prevent the risk occurring again in future, so far as possible.
26.New section 12IF places a duty on Health Boards and the Agency to put and keep in place arrangements for seeking and having regard to appropriate clinical advice in relation to decisions on staffing and when putting in place arrangements in relation to staffing under sections 12IA to 12IE, and 12IH to 12IL, and for recording and explaining decisions where they conflict with that advice. These arrangements must include a procedure, where the Health Board or Agency has reached a decision which conflicts with the clinical advice it has received, for the identification of risks caused by that decision; for the mitigation of any such risks, so far as possible; for the notification of any such decision, and the reasons for it, to any individual who gave clinical advice on the matter; and for any such individual to record disagreement with the decision. They must also include a procedure for individuals with lead clinical professional responsibility for particular types of health care to report, on a quarterly basis at least, about the extent to which they consider that the Board or the Agency are complying with their duties under sections 12IA to 12IE, 12IH to 12IL. Individuals with lead clinical professional responsibility are to enable and encourage other employees to give views on the operation of this section and to record such views in their quarterly reports. Health Boards and the Agency must have regard to the reports they receive. Individuals with lead clinical professional responsibility are to be made aware of how to implement these arrangements and are to be given adequate time and resources to implement them.
27.New section 12IG places a duty on the Scottish Ministers to take all reasonable steps to ensure that there are sufficient numbers of registered nurses, registered midwives, medical practitioners (and such other types of employees as the Scottish Ministers prescribe by regulations) available to Health Boards, relevant Special Health Boards and the Agency to allow them to comply with their duties under section 12IA. In meeting this duty, Scottish Ministers must have regard to the number of people training for healthcare professions and the variation in staffing needs caused by differences in the geographical areas for which Health Boards are responsible. Subsection (3) requires Scottish Ministers to lay an annual report before Parliament setting out the extent to which their compliance with the duty to ensure sufficient numbers of staff has enabled Health Boards, relevant Special Health Boards and the Agency to comply with the general duty.
28.New section 12IH places a requirement on Health Boards and the Agency, when complying with the duty in section 12IA, to ensure that all individuals with lead clinical professional responsibility for a team of staff receive sufficient time, and resources, to discharge that responsibility and their other professional duties. Subsections (a)-(c) sets out that this includes supervising the meeting of the clinical needs of patients; managing, and supporting the development of, their staff; and contributing to the delivery of safe, high-quality and person-centred health care- although this is not an exhaustive list.
29.New section 12II places a requirement on Health Boards and the Agency, when complying with the duty in section 12IA, to ensure that employees working for them receive training which the Board considers appropriate for the provision of safe and high quality health care and the health, wellbeing and safety of patients – and such time or resources, as the Board considers adequate, to undertake this training.
30.New section 12IJ sets out a duty for all geographical Health Boards and the Agency to follow a common methodology when determining staffing provision for certain types of health care. Ministers may prescribe in regulations the minimum frequency at which this common staffing method is to be used – these regulations will be subject to the negative parliamentary procedure. Health Boards and the Agency will have the discretion to use it more often if they wish.
31.Subsection (2) provides further information on what constitutes the common staffing method, including all the separate steps – set out in paragraphs (a) to (e) – which are to be followed. The method includes the use of a staffing level tool and professional judgement tool (designed to provide quantitative information in order to assist in determining the appropriate staffing level based on patient needs) and consideration of health care quality measures, as well as a number of other factors to be taken into account when making decisions about staffing requirements, including the consideration of patient needs, the experience gained from using the real-time assessment and mitigation arrangements under sections 12IC, 12ID and 12IE, and the seeking of appropriate clinical advice (as defined in section 12IO).
32.The final step, set out in subsection (2)(e), requires all geographical Health Boards and the Agency, having followed the steps described in subsections (2)(a) to (2)(d), to decide on any changes required to the staffing establishment (staffing levels) and the way in which it provides care (service redesign) as a result of following this common staffing method. Subsection (4) provides a definition of staffing establishment.
33.Subsection (3) allows the Scottish Ministers to make regulations to specify the exact planning tools that Health Boards and the Agency are to use as part of the common staffing method. These regulations will be subject to the negative parliamentary procedure. Currently these planning tools are accessed via an IT platform hosted by the Scottish Standard Time System, accessible to all NHS sites in Scotland and registered users.
34.Subsection (5) allows the Scottish Ministers to make regulations to vary the detailed steps in the common staffing methodology set out in subsection (2). These regulations will be subject to the affirmative procedure in the Scottish Parliament, by virtue of section 4(4) of this Act amending section 105(3) of the 1978 Act.
35.New section 12IK specifies the types of health care provision, in conjunction with the location where it is provided and the type of employee carrying out the provision, that are covered by the section 12IJ duty to follow the common staffing method. The list of types of health care mirrors those areas for which a staffing level tool already exists, or is currently under development. Since part of the common staffing method requires the use of a staffing level tool, the method can only be followed where such a tool exists. Subsection (2) sets out that that any references to registered nurses, registered midwives and medical practitioners in the health care settings listed in the table in section 12IK(1) include individuals providing care for patients and acting under the supervision of, or discharging duties delegated to the individual by the registered nurse, registered midwife or medical practitioner. This could for example include health care workers, and means that they are covered by the common staffing method in section 12IJ. Subsection (3) clarifies that student nurses, student midwives and medical students are not included in these references to registered nurses, registered midwives and medical practitioners in the health care settings listed in the table in section 12IK(1). As a result, they are not covered by the common staffing method in section 12IJ.
36.The Scottish Ministers may modify any aspects of the types of health care listed by regulations made under subsection (4). In this way, for instance, new areas can be added to reflect the development of new staffing levels tools in the future. This can include professions not currently covered by section 12IC, including allied health professions included in the register of members maintained by the Health and Care Professions Council under section 60 of the Health Act 1999. These regulations will be subject to the affirmative parliamentary procedure, by virtue of section 4(4) of this Act amending section 105(3) of the 1978 Act.
37.New section 12IL introduces a requirement which all geographical Health Boards and the Agency must follow in turn to show that they have complied with the duty in section 12IJ(1) to follow the common staffing method: namely a requirement that it seeks the views of staff, and gives consideration to those views, when applying the method to the types of health care set out in new section 12IK. It also introduces a duty to train staff on how to use the method, ensure they have adequate time to use it, and provide feedback on decisions made from using it, including how any views provided by staff have been taken into account.
38.New section 12IM(1) places a duty on all geographical Health Boards and the Agency to report annually on how they have carried out their duties under section 2 and new sections 12IA (Duty to ensure appropriate staffing), 12IC (Duty to have real-time staffing assessment in place), 12ID (Duty to have risk escalation process in place), 12IE (Duty to have arrangements to address severe and recurrent risks), 12IF (Duty to seek clinical advice on staffing), 12IH (Duty to ensure adequate time given to clinical leaders), 12II (Duty to ensure appropriate staffing: training of staff), 12IJ (Duty to follow common staffing method) and 12IL (Training and consultation of staff). Subsection (3) of inserted section 12IM sets out that this information must include information about any challenges or risks faced by Boards whilst carrying out the duties under sections 12IA, 12IJ and 12IL, and steps that will be taken to address them. Boards must publish this report and submit it to Scottish Ministers within one month from the end of the relevant financial year, i.e. 31 March, with flexibility afforded on the manner of publication (it could for instance be carried out through existing reporting structures rather than in separate form).
39.Subsection (2) of inserted section 12IM requires the Scottish Ministers to collate the reports provided by the Health Boards and the Agency under subsection (1) into a combined report to be laid before the Parliament, alongside a statement setting how Scottish Ministers have taken this information into account when developing their policies for the staffing of the health service. Subsection (4) of section 12IM places a similar requirement on Scottish Ministers to publish a report, as soon as reasonably practicable after the end of each financial year, setting out how each Health Board and the Agency has carried out its duties under sections 12IA, 12IJ, and 12IL. Subsection (5) of 12IM specifies that the report produced under subsection (4) must also set out any risks or challenges faced by the Health Board or Agency in carrying out these duties and steps that Ministers will take as a result, while subsection (6) of 12IM requires Ministers to lay this report before the Parliament. Subsection (6) of new section 12IM also requires Ministers to lay before the Parliament a summary and evaluation of the information submitted to them by Health Boards and the Agency under subsection (1).
40.Section 12IN empowers Scottish Ministers to publish guidance regarding the duties introduced by new sections 12IA to 12IM. All geographical Health Boards and the Agency must have regard to any such guidance when exercising these duties: in other words they must follow such guidance unless they can show that it is reasonable in all the circumstances not to. In addition, the guidance may include information about the duties introduced by section 2 of this Act and the guiding principles.
41.Prior to publishing the guidance, the Scottish Ministers must consult a number of bodies – geographical Health Boards, relevant Special Health Boards, Healthcare Improvement Scotland (HIS), the Agency, integration authorities, appropriate trade unions, professional bodies and professional regulatory bodies, as well as any other person considered appropriate.
42.Definitions of “employee” and “health care” are provided in new section 12IO, as a result of which the existing section 12H(3) is repealed. These definitions apply to the existing section 12H, as well as to the new sections 12IA to 12IN. The definition of “employee” is narrowly framed and would exclude staff from third party agencies. It also includes those employed by a local authority where an integration scheme under Part 1 of the Public Bodies (Joint Working) (Scotland) Act 2014 applies. This means that, where local authorities are delivering health care functions delegated to them under Part 1 of the 2014 Act, the requirement to comply with the common staffing method flows through to cover the local authority employees delivering the health care. Section 12IO also defines “appropriate clinical advice”, which must be taken account of sections 12IA, 12IC, 12ID, 12IE, 12IF, and 12IJ(2)(c)(vii) as part of the new staffing duties; and ‘relevant Special Health Boards,’ to whom duties apply as a result of section 5.