Summary of Proposals
The overarching intention is for the legislation to be a further enabler of high quality care and improved outcomes for individuals. Given the importance of ensuring the right people, in the right place at the right time to deliver sustainable and high quality services with improved outcomes for service users, irrespective of setting, and of enabling integrated workforce planning, the intention is that the legislation will – in an appropriate and proportionate way - span the health and social care landscape. However, in taking this broader approach, the legislation will not be restrictive or prescriptive but rather will seek to be appropriate and enabling for the social care sector, and in particular support the recommendations in the co-produced Part 2 of the National Health and Social Care Workforce Plan.
1. A workload and workforce planning duty applicable to Health Boards and care service providers.
Regulation 15 of The Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011 (“the 2011 regulations”) places a duty on care service providers, having regard to the size and nature of the care service, the statement of aims and objectives and the number and needs of service users, to ensure appropriate numbers of suitably qualified and competent staff are in place to ensure the welfare and safety of service users. Care service providers are those listed in section 47 and described more fully in Schedule 12 of the Public Services Reform (Scotland) Act 2010 who are required to register with the Care Inspectorate and include support services, care home services, school care accommodation services, nurse agencies, child care agency, secure accommodation services, offender accommodation services, adoption services, fostering services, adult placement services, child minding, day care of children and housing support services.
Health Boards have a duty to put and keep in place arrangements for the purposes of workforce planning (section 12I(c) of the National Health Service (Scotland) Act 1978).
In order to create a coherent overall legislative framework for workforce planning across the health and social care sector, the intention is that this legislation will place a duty on Health Boards and care service providers to consider the need for the provision of appropriate numbers of suitably qualified staff, similar to and learning from the current requirement for care service providers set out in the 2011 regulations.
For care service providers, this duty would maintain but replace the existing requirement placed on care service providers through regulation 15 of the 2011 regulations. Other requirements under those regulations would be unaffected. However, individuals who do not employ staff would be excluded.
For Health Boards this duty would be required as part of their existing duty to put and keep in place arrangements for the purposes of workforce planning in section 12I(c) of the National Health Service (Scotland) Act 1978. While it might replace section 12I(c), it would be an expansion of that existing duty.
Requirements on Health Boards will be linked to the planning and provision of health care services, so where those services (i.e. functions) are delegated to an Integration Authority, as per the requirements of the Public Bodies (Joint Working) (Scotland) Act 2014) – whether an Integration Joint Board, Health Board or Local Authority - then that body must also comply with them when planning and delivering those services. It is section 25 of the Public Bodies (Joint Working) (Scotland) Act 2014 that has the effect of making the requirements flow through to Integration Authorities.
As set out above, the legislation will not impose minimum staffing requirements.
Organisations’ progress in meeting requirements would be monitored through a duty to report which could be incorporated into existing local and national reporting and regulatory mechanisms including Local Delivery Planning, Annual Reviews and HIS and Care Inspectorate scrutiny processes, including inspections and Quality of Care Reviews, and through the reporting processes required of Integration Authorities. The Care Inspectorate currently assesses staffing levels for all social care providers it registers and inspects and this function would continue.
Question 1a: Do you think it is important to have a coherent legislative framework across health and social care to underpin workforce planning and appropriate staffing in health and social care? [Yes/No]
If you answered yes, how important
1 = extremely important,
2 = very important,
3 = moderately important,
4 = slightly important,
5 = not at all important
Question 1b: How should organisations’ progress in meeting requirements be monitored and facilitated, taking account of what currently works well?
Question 1c: Please provide any other comments you may have. [Text box]
2. Overarching principles applicable to health and social care service providers
Overarching principles will apply to Health Boards and care service providers (those care services required to register with the Care Inspectorate excluding individuals who do not employ any staff) who will be required to take them into account in carrying out their general workload and workforce planning activities. The general workforce planning activities and overarching principles will apply to all staff groups delivering health and care services, from commencement of the Act which results from the Bill.
The inclusion of principles is in response to views expressed in the initial consultation that enshrining the nursing and midwifery workload and workforce planning process alone would be insufficient, given the recognised importance of ensuring the right people, in the right place at the right time to deliver high quality care, irrespective of setting or staff group. It is also intended to mitigate the risk that resources may be diverted away from staff groups and settings not covered by existing workload and workforce planning tools.
Initial proposals are that the principles will set out the factors to be considered when carrying out workforce planning, notably that workforce planning must ensure
- high quality services
- effective and efficient use of resources
- services that meet service user need
- services that respect the dignity and rights of service users.
These principles are still in development and will be informed by wider stakeholder engagement.
What is your view of the proposal that there should be guiding principles for workforce planning to provide NHS Boards and care service providers with a foundation on which to base their staffing considerations?
Neither agree nor disagree
Do you have a view on whether/how application of these principles should be monitored?
Please rate the following examples of potential principles on a scale of 1 to 4, where 1 is very important, 2=important, 3=not very important, 4=not important at all (note that the following do not represent draft wording for the principles to be included in legislation).
i. Workforce planning must ensure an appropriate number and mix of staff to provide high quality services.
ii. Workforce planning must ensure an appropriate number and mix of staff to provide effective and efficient use of resources.
iii. Workforce planning must ensure an appropriate number and mix of staff to provide services that meet service user needs.
iv. Workforce planning must ensure an appropriate number and mix of staff to provide services that respect the dignity and rights of service users.
Are there other principles you think should be included?
3. Requirements applicable to Health Boards
The legislation will include more specific requirements where a validated workload planning tool and methodology exists – in the first instance this will only be applicable to nursing and midwifery services and to medical services in emergency medicine settings.
For settings where a validated workload and workforce planning tool exists, NHS Boards and, as appropriate, Integration Authorities, will have to evidence that they have followed a common methodology prior to making decisions about staffing requirements, including:
- Application of the specialty specific and professional judgement tools
- Consideration of nationally agreed quality measures
- Consideration of local context
- Consideration of staff and service user views
- Consideration of the need to redesign services.
These settings and tools will be specified in the Bill so it is clear where these additional requirements apply. The legislation will also allow for the development of new tools, including multi-disciplinary tools.
To ensure that staff understand the staffing decisions made, Health Boards and, as appropriate, Integration Authorities, will have to provide staff with information about the use of the methodology and the staffing decisions reached, as well as encouraging staff to submit views about the use of the methodology; and to train staff in the use of the tools and methodology.
Health Boards and, as appropriate, Integration Authorities, will be required to report on the requirements placed under the Bill – in practice, this reporting will be done through existing reporting mechanisms of local delivery plans, annual reviews and quality of care reviews undertaken by NHS Healthcare Improvement Scotland.
The Executive Nurse Director must be enabled, by the NHS Board and Integration Authority, to inform, influence and advise on nursing and midwifery staffing requirements, risk analysis and mitigation and prioritisation prior to corporate decisions being made.
Scottish Ministers will be able to issue guidance to Health Boards and Integration Authorities setting out further detail around the requirements contained within the Bill.
Requirements on Health Boards, and, as appropriate, Integration Authorities, will be linked to the provision of health care services, so where those services (i.e. functions) are delegated to an Integration Authority – either an Integration Joint Board or Local Authority - then that body must also comply with them when delivering those services. It is section 25 of the Public Bodies (Joint Working) (Scotland) Act 2014 that has the effect of making the requirements flow through to Integration Authorities.
What is your view on the proposed requirements for Health Boards?
Neither agree nor disagree
Are there any other requirements you think should be included?
Please provide any other comments on the proposed requirements set out in section 3.
4. Development of validated tools and methodologies for the social care sector
The legislation seeks to be appropriate, proportionate and enabling for the social care sector and to be supportive of the recommendations in Part 2 of the National Health and Social Care Workforce Plan (published December 2017). It does not seek to prescribe an approach to workforce planning, but rather to enable the development of suitable approaches for different settings in the future.
The proposal is that the legislation will build on existing legislative functions by providing:
- A function for the Care Inspectorate to work with the social care sector to develop and validate workload and workforce planning tools for use in specified settings, as agreed with and produced with the sector.
- A regulation-making power for Scottish Ministers so that they can subsequently confirm the use of any validated tools or methodologies developed by the Care Inspectorate for specified settings within the sector, following appropriate consultation with the sector.
- The ability for Scottish Ministers or the Care Inspectorate to issue guidance to care service providers setting out further detail around the duties contained within the Bill, as well as setting out requirements around reporting and compliance.
Do you agree with the proposed role for the Care Inspectorate in leading work, with the social care sector, to develop workforce planning tools for application in specified settings, where there is an identified need?
Neither agree nor disagree
If you answered Disagree/Strongly disagree, who else do you think should lead this work?
Do you think that social work  should be included within the scope of this legislation (while there is currently no proposal to include social work, this could be considered for inclusion at a later stage).
Neither agree nor disagree
Please provide any other comments on the inclusion of social work within the scope of the legislation.
5. Role of the sector in identification of the social care settings for which there may be a need for development and application of validated tools and methodologies and for inclusion within legislation.
The aim of the legislation is to build on and strengthen existing mechanisms and create a cohesive approach to workforce planning across health and social care.
In Health Boards, the Nursing and Midwifery Workload and Workforce Planning Programme has taken an evidence based approach to workload and workforce planning. The ground-breaking approach, tools and methodologies have been developed over a number of years with investment of considerable time and resource. It is recognised that similar effort and investment will be needed for the development of approaches suitable for specific social care settings.
It will be important that, as for the Nursing and Midwifery Workload and Workforce Planning Programme, the sector itself is fully engaged in development and validation of tools and methodologies that are appropriate for specified settings. It will also be important that the sector supports any future use of legislation through regulations to require use of newly developed tools.
The following question sets out some possible suggestions for how, in practice, the sector could be engaged in the development and validation of an approach appropriate for a specified setting. Understanding views on how the legislation might work in practice will help inform approaches to legislative provisions.
In delivering the function described under 3 above, the Care Inspectorate could be required:
i. To work with employers/service providers and commissioners  from the sector to identify and agree specified settings where there is a need for the development of workforce planning tools and methodologies
ii. To work with service providers and commissioners from the appropriate parts of the sector to develop and validate workforce planning tools and methodologies to demonstrate that they are practicable and beneficial for specific settings
iii. To consult with the sector before a requirement to use validated workforce planning tools and methodologies is confirmed in regulations.
How important do you consider the suggestions above are in providing possible routes for the sector to be fully engaged in the development and validation of approaches appropriate for a specified setting?
Mark each requirement on a scale of 1 to 4, where 1 is very important, 2=important, 3=not very important, 4=not important at all, 5= not desirable
Are there any other routes you think should be considered to ensure appropriate engagement with the sector?
Please identify any settings where you think the development of appropriate workload and workforce planning tool or methodology is most important; and any care settings where you think this is not relevant or required.
6. Support for the development of validated tools and methodologies for the social care sector.
As identified above, the Nursing and Midwifery Workload and Workforce Planning tools and methodologies that will be specifically included in the legislation have been developed over a number of years with investment of considerable time and resource. We acknowledge that development of similar approaches for the social care sector will require support, both for the proposed role of the Care Inspectorate and for those service providers who engage with the Care Inspectorate in developing and validating approaches, tools and methodologies.
Question 6: What support do you think will be required / most useful to enable the development of validated tools and methodologies for the social care sector?
Please mark each suggestion on a scale of 1 to 4, where 1 is very important, 2=important, 3=not very important, 4=not important at all
i. Dedicated central expertise for the identification of specified settings where the development of workload and workforce planning tools and methodologies would be practicable and beneficial.
ii. Additional resource for the Care Inspectorate to enable the proposed functions
iii. Training for key personnel in the sector in the development of workforce planning approaches.
iv. Dedicated resource for service providers who engage in the development and validation of approaches, tools and methodologies.
v. Training for key personnel in specified services once validated tools and methodologies are confirmed through regulations.
7: Risks and unintended consequences
Question 7a: What risks or unintended consequences might arise as a result of the proposed legislation and potential requirements?
Question 7b: What steps could be taken to deal with these consequences?
8. Conclusion & Next Steps
This paper has summarised refreshed proposals for the ‘Safe Staffing’ Bill, building on the responses to an initial consultation (April 2017) and more recent engagement with the health and social care sector. We would welcome views by 20 February 2018 on the refreshed proposals.
Please email SafeandEffectiveStaffing@gov.scot or telephone 0131 244 5669 if you have any queries regarding this written engagement exercise, require any further information or would like to discuss the proposals in more detail before providing your views.
We will consider responses and continue to work closely with stakeholders, including the Bill Reference Group and the legislation’s Strategic Programme Board, to inform the development of the legislation and ensure the legislation and underpinning policy are effective and proportionate and applied in a meaningful way in the correct settings.
In tandem with this written engagement exercise, we will be holding three regional events in February 2018 (Aberdeen on 5 February, Glasgow on 7 February and Edinburgh on 8 February) which will provide further opportunity to discuss the proposals. If you wish to book a place at one of the regional events please email SafeandEffectiveStaffing@gov.scot indicating which event you wish to attend. A Webex or video conference will also take place on 12 February for those not able to attend one of the events in person.
The intention is for the Bill to be introduced to the Scottish Parliament later in 2018.