Briefing: Scotland’s safe staffing legislation

What exactly does the Health & Care (Staffing) (Scotland) Bill do?

Friday 3rd May 2019

Yesterday Holyrood unanimously approved ground-breaking new staffing legislation that covers the health and social care sector. But what exactly does it do?

Simply, the Health & Care (Staffing) (Scotland) Bill introduces a duty for NHS and care providers to set staff levels so services are ‘safe and high quality’ and deliver the ‘best healthcare outcomes’.

It does not directly specify what these staff levels should be.

Instead, the legislation includes a focus on workforce planning calculators – or ‘tools’ – so that staffing levels are based on clear evidence across Scotland – in all care settings.

The approach is slightly different for the two sectors, reflecting different starting points. In the health service, these workforce tools are already used – albeit not consistently – while workforce planning in the care sector is more fragmented.

At the heart of the proposals are ‘guiding principles’ that health and care providers will be expected to adhere to – having enough staff to provide ‘safe and high-quality services’ and ‘best healthcare outcomes for service users’.

These core principles are qualified by a list of other requirements, such as ‘allocating staff efficiently and effectively’ and safeguarding patients’ ‘dignity and rights’.

In a report accompanying the legislation, the Scottish Government says the new law will require health boards and care service providers to ‘ensure suitably qualified and competent individuals are working in such numbers as are appropriate for the health, wellbeing and safety of service users.’

Health boards, councils and integration authorities that commission care will be required to report back annually to the Scottish Government on how this is progressing. Ministers will have to present the findings to Parliament every year, including their response to any concerns.

The health service

Under the proposals, NHS boards will have a number of new duties – including appropriate staffing for patient and staff wellbeing and carrying out ‘real-time’ staffing assessments that lead clinicians will have to respond to, mitigating any shortages ‘as far as possible’.

Boards will also be asked to put escalation processes in place so staff can raise concerns about shortages if they can’t be mitigated.

After an opposition-backed amendment at committee stage, the Scottish Government has a duty of its own – to ensure there are ‘sufficient’ numbers of registered nurses, midwives and other healthcare professionals.

There is also now a requirement to allow staff sufficient time away from work to undertake training for further qualifications.  

Boards also have to follow a common staffing tool set out by Ministers, which calculates the staff numbers needed to serve patients, to be used alongside professional judgement.

The tools are based on average workloads so health bosses can work out how many staff they need to fulfil their duties.

Currently each NHS board does its own workforce planning, taking local circumstances into consideration.

Elsewhere, there’ll be a new role for NHS standards watchdog, Healthcare Improvement Scotland, which will monitor how health boards are fulfilling this duty.

It will also be tasked with reviewing the methodologies used and recommending changes or new ones where required.

Scotland’s care sector

The situation is trickier for the care sector, which is made up of private, public and third sector providers, ranging from small operators to large companies based outside Scotland.

Councils and integration authorities will have to report ‘any ongoing risk’ to them meeting the requirements, ensure there are enough staff for high quality care and provide ‘appropriate training’ for staff.

The Care Inspectorate, the watchdog for care services in the country, will be tasked with developing a new workforce calculator for the sector.

It will be required to collaborate with all boards, councils, integration authorities and representatives from providers, carers and people being cared for.

This will be a cautious process led by the care sector, the Scottish Government stresses:

‘The Scottish Government considers that it will be essential to work with stakeholders to provide reassurance that any and all staffing tools developed for the care sector will only be applicable for, and to, the care sector to reflect the unique demands and pressures of that sector.’

It goes on to reassure:

‘It is also not the intention of the Scottish Government to prescribe approaches to workload and workforce planning, in terms of development of the tools for the care sector on the face of the Bill. The ambition is to enable the further development of suitable approaches by and for the sector where this is considered appropriate and in collaboration with the sector.

‘If and when a tool is developed, the methodology agreed during the tool development process will be prescribed by the Scottish Ministers to ensure consistent application across the sector.’

What it does not do?

It’s worth noting the Bill does not set out minimum staff levels or staff-patient ratios.

The Government says this ‘could potentially undermine innovation…Rather, the legislation will support local decision-making, flexibility and the ability to redesign and innovate.’

Nor does it provide more cash for recruiting health service staff – Scottish Parliament researchers add:

‘The resourcing associated with the Bill only covers the direct costs - the development and implementation of tools and methodologies and training of staff. It acknowledges that there might be a consequential impact on the demand for staff, but that this will be the responsibility of health boards to manage, and the Scottish Government do not see that there will be an overall increase in costs incurred by health boards.’

The Scottish Government has also said the new law ‘will not, in itself, address [health and care recruitment] challenges’ and should be viewed alongside the other measures it is bringing in to boost recruitment.

It’s less clear what will happen if an organisation cannot meet the requirements in the Bill, though the Government has said health boards and care services will not be penalised for ‘factors beyond their control’.