Commentary on Sections Part 2 – Staffing in the NHS Section 6 – Role of Healthcare Improvement Scotland in relation to Staffing
44.Section 6 amends the National Health Service (Scotland) Act 1978 by inserting new sections 12IP to 12IW, as well as making consequential amendments to sections 10C and 10I of the Act. It creates new functions for Healthcare Improvement Scotland (HIS) in relation to staffing.
45.New section 12IP sets out that HIS must monitor the discharge, by every Health Board, relevant Special Health Board and the Agency, of their duties under the Act. This does not extend to the duty under section 12IB.
46.New section 12IQ places a duty on HIS to monitor the effectiveness of the common staffing method, as set out in section 12IJ(2), and the way in which Health Boards, relevant Special Health Boards and the Agency are using it. HIS must, from time to time as it considers appropriate, carry out reviews of the common staffing method. Subsection (3) sets out who HIS must consult in carrying out such a review, and requires HIS to have regard to the guiding principles set out in section 1 of the Act in undertaking this task. Subsection (4) provides Scottish Ministers with a discrete power to direct HIS to carry out a review of the common staffing method.
47.Following a review, HIS may recommend changes to the common staffing method by submitting to Scottish Ministers, and publishing, a report setting out the summary of the review, its recommendations for changes to the common staffing method and reasons for those recommendations. HIS may take into account the development of a new or revised staffing level tool or professional judgement tool under section 12IR(2) in recommending changes. The Scottish Ministers may then respond to HIS’ recommendations by amending the common staffing method using their regulation-making power under section 12IJ(5).
48.New section 12IR places a duty on HIS to monitor the effectiveness of any staffing level tool or professional judgement tool, including any new or revised tool developed under section 12IR(2), which has been prescribed by the Scottish Ministers under section 12IJ(3). It also provides HIS with a power to develop, and recommend to Scottish Ministers, new or revised staffing level tools and professional judgement tools for use in relation to any kind of health care provision. The Scottish Ministers may then, by regulations under section 12IJ(3)(a) or (b), prescribe the use of said tools. Subsection (3) lists those whom HIS must collaborate with in developing such tools. In undertaking this collaboration, HIS must take into account such guidance published by professional and improvement organisations as it considers appropriate as well as relevant clinical evidence and research. HIS and those who it collaborates with must have regard to the guiding principles set out in section 1 of the Act in doing so. Subsection (5) allows the Scottish Ministers to direct HIS to develop a new or revised staffing level tool or professional judgement tool.
49.Subsection (6) provides a power for the Scottish Ministers to make regulations requiring assumptions to be made by HIS, in the process of making a recommendation to the Scottish Ministers on the development of new or revised staffing level tools and professional judgement tools, on certain matters (for example staff absence and bed occupancy levels).
50.New section 12IS places a duty on HIS, when developing a new or revised staffing level tool or professional judgement tool, to consider whether the tool should apply to more than one professional discipline. It also gives HIS a power to recommend to the Scottish Ministers that an existing staffing level tool or professional judgement tool, prescribed under section 12IJ(3), should apply to more than one professional discipline.
51.New section 12IT requires Health Boards, relevant Special Health Boards and the Agency to give HIS such assistance as it requires in performing its functions under sections 12IP to 12IS.
52.New section 12IU gives HIS a power, in pursuing its functions under new sections 12IP to 12IS, to serve a notice on a Health Board, relevant Special Health Board or the Agency, which it must comply with, requiring it to provide HIS with information about any matter specified in the notice, by a specified date. The notice must explain why the information is required and what function HIS is performing.
53.New section 12IV sets out that HIS, every Health Board, relevant Special Health Board and the Agency must have regard to any guidance issued by the Scottish Ministers about the operation of sections 12IP to 12IU, and that prior to issuing such guidance, the Scottish Ministers must consult with those listed in section 12IR(3).
54.New section 12IW defines key terms for the purposes of sections 12IP to 12IV. Subsections (3) and (4) of section 6 make consequential amendments to the 1978 Act to bring these functions within the ambit of HIS’ “health service functions” for the purposes of the Act, and to extend the existing powers of HIS to inspect services to the pursuance of these new functions.