Health and Care (Staffing) (Scotland) Bill

The Convener

Agenda item 4 is two evidence-taking sessions on the Health and Care (Staffing) (Scotland) Bill. I expect the sessions to last roughly an hour each to give committee members the opportunity to ask our witnesses about aspects of the bill.

I welcome to the meeting Dr Sally Gosling, who is assistant director of practice and development at the Chartered Society of Physiotherapy; Kim Hartley Kean, who is the head of the Royal College of Speech and Language Therapists Scotland and is representing the Allied Health Professions Federation Scotland; and Patricia Cassidy, who is the chief officer of Falkirk health and social care partnership and is representing the chief officers group for health and social care in Scotland.

We will go straight to questions. First, I ask the witnesses to kick things off by briefly outlining their main concerns about and considerations with regard to the bill’s proposals. Who would like to start?

Kim Hartley Kean (Allied Health Professions Federation Scotland)

I am happy to start, if I could have the opportunity to sort out my papers.

Thank you for the opportunity to speak to the committee this morning. I represent 12 allied health profession bodies, so I provide real value for the committee—you are getting 12 for the price of one. I represent music therapists, art therapists, drama therapists, occupational therapists, dieticians, orthotist-prosthetists, orthoptists, physiotherapists, paramedics, speech and language therapists, podiatrists and radiographers. I am representing a lot of professions.

We account for more than 11,500 staff, which is 8.3 per cent of the NHS workforce. That compares well with the 8.9 per cent of the workforce that is made up of medics and dentists. We work in health and social care—OTs are employed by social services—from birth to palliative care, in public health preventive services and in primary, secondary and community care. It would be challenging to find a care group in which AHPs do not work.

I have five key points that I want to make; I will do so as quickly as possible. We believe that the bill will not achieve its objectives and is not future focused. We have several significant fears about it and none of the 12 professional bodies that I represent can support it as it stands. We will offer some solutions.

First, the bill will not achieve its objectives. Only the right staffing team can provide the highest quality of care that leads to the best outcomes. In that sense, legislating for the right staffing presents a great opportunity, so in principle we like the bill. However, it is not outcome focused but is focused instead on a restricted range of inputs, which is its big challenge.

The bill is not future focused and plays to the old unidisciplinary siloed model of health and social care that seems to go against the grain of modern models of health and social care that are promoted in the general practitioner contract, the national clinical strategy and, most recently, in “National Health and Social Care Workforce Plan: Part 3—improving workforce planning for primary care in Scotland”.

The bill does not reflect the reality of multidisciplinary working: some parts of the bill seem specifically to exclude AHPs. AHPs work in all 11 types of healthcare that are listed in proposed new section 12IC of the NHS (Scotland) Act 1978, which would be inserted by section 4 of the bill. The list of employees in section 12IC, however, identifies only registered nurses, midwives and medical practitioners, along with people who work under the supervision of those staff groups. Allied professions do not work under the supervision of any of those staff groups. For 40 years, we have been autonomous clinicians. The bill does not cover that.

The bill says that it is multidisciplinary, but the financial memorandum is disheartening. It seems to indicate that it will be 10 years plus before we see any multidisciplinary tools. The bill is also not needs based: people need AHPs, but the bill is all about doctors and nurses.

Our fears are shared by the AHP directors who are working in the health service already, trying to run AHP services. The bill will create unintended consequences and will skew resources from the current dire financial distribution. Directors are likely to say: “Sorry, we can see what you mean about needing more AHPs or multidisciplinary teams, but my hands are tied by the legislation.”

Our fears are grounded in reality. No one is saying that the £500 million-plus that has been announced for primary care should not have happened, but compare that to the £3 million that was announced for AHPs in 2015: we have not heard about any more money for AHPs since then.

There is a sense that we have been forgotten; we were excluded from the process of writing the bill, which is indicative of organisational habits. There is one reference to AHPs in the bill papers, in paragraph 93 of the policy memorandum. I am sure that everyone can remember what that says.

The Scottish Government nursing directorate itself says that:

“The potential for resources to be diverted to nursing and midwifery to meet the mandatory requirement could be to the detriment of other professionals’ contribution to the care of patients.”

It is recognised that that is a problem.

As I said, none of the professional bodies that I am here to represent can support the bill, as introduced. We would like there to be an outcomes focus in the general principles and a general presumption that quality and safety are best supported through multidisciplinary teams. We want the list of tools in proposed new section 12IC of the 1978 act to be replaced with a new section that would establish a statutory duty on, for example, Healthcare Improvement Scotland, which would be equivalent to the duty on Social Care and Social Work Improvement Scotland, to annually or biennially review and improve the common staffing method, including the tools to reflect the developing evidence base on multidisciplinary staffing. That same body should make annual or biennial recommendations to the minister on improving the tools.

The Convener

That was a comprehensive answer.

Dr Sally Gosling (Chartered Society of Physiotherapy)

I will add to what Kim Hartley Kean has said. As she said, the CSP is part of AHP Federation Scotland. I will briefly outline some additional issues that relate to our concerns about the bill as it is currently couched.

First, we believe very strongly that a multidisciplinary team approach to staffing levels must be taken. There will be risks to the quality of patient care, in terms of experience and outcomes, unless a multidisciplinary team approach is taken.

The bill also risks focusing on staff levels in one part of the workforce and potentially depleting other parts of the workforce, which would add to staff workload in unhelpful and unintended ways. We think that the bill assumes that looking at staffing levels in isolation will make a difference to the quality of patient care, in terms of experience and outcomes. We strongly believe that looking at staffing levels in isolation cannot address needs. That risks a partial approach being taken that would not look at outcomes for patients; at best, it would look at avoiding negative outcomes or negative incidents.

There is also a risk that the bill would build in rigidity and inflexibility when, as Kim Hartley Kean said, there is a need to focus on future service delivery models. We need to ensure that staffing is responsive and able to meet current and future staffing service delivery models, rather than it being grounded in historical models.

The bill risks being a distraction and creating bureaucracy. Staff groups that come under the legislation would need to invest their time in gathering data about activity, but there would be no real focus on the benefit of that work. The survey that the Scottish Parliament information centre undertook recently seemed to affirm that a lot of time is invested in looking at how the tools are used currently, but that there is no clear sense of how use of the tools impacts on analysis of staffing issues or on accountability for decisions.

On that basis, we think that the existing nurse staffing level tools and workload management tools are an odd place on which to base legislation. Embedding those tools in the legislation would build in rigidity, inflexibility and a lack of responsiveness to changing population and patient needs and service delivery models. Again, that view seems to have been borne out by the survey feedback that has been obtained. Nurses who use the tools reflected that how they are working and contributing to patient care is not being captured. That risks the bill being grounded in historical issues.

We are also concerned that the tools are not in the public domain. We are not able to see—as I understand the committee will not be able to see—what the tools are at the moment. We do not understand how the tools have been evaluated, so we have some concerns on that front.

We believe strongly that a whole-system approach to staffing levels must be taken that reflects changing models of delivery, moving care closer to home, integrating health and social care and delivering the Scottish health and social care delivery plan. The grounding of the bill, as introduced, could work against delivery of Scottish Government’s “Health and Social Care Delivery Plan”. The grounding of the bill, as introduced, could work against delivery of health and social care policy through the bill, for example, taking only a partial approach to staffing.

The bill would also generate the risk of unintended consequences and create perverse incentives and unintended activity. Again, that is because the bill is grounded in a singular approach to one staff group, albeit that it is a very important group.

The bill could also divert resources in order to meet its requirements while not meeting service delivery needs or patient needs. Our strong concerns about unintended activities are borne out by some evidence that, in states where such legislation has been introduced, particularly for nursing its impact has not been what was intended. We are concerned about that.

We absolutely recognise the spirit in which the bill has been introduced and we recognise that it is intended to enhance patient care and to address issues of staff wellbeing, but we do not believe that, as it is couched, it will do that. It needs to be much more responsive to changing population and patient needs, much more in line with health and social care policy and much more focused on being integrated into that.

We are looking for legislation that is much more strategic and integrated in its approach, does not sit in isolation, and introduces a much stronger sense of accountability. Rather than just accountability for demonstrating use of the tools, we need accountability for integrating a strategic approach to workforce planning, workforce deployment and so on.

Patricia Cassidy (Chief Officers Group for Health and Social Care in Scotland)

I welcome the opportunity to come and speak to the committee. I preface my comments by saying that we must remember that the focus of everything that we do is to ensure that we have person-centred care that is flexible, responsive and safe, as well as being of high quality.

I am here representing the 31 chief officers for health and social care across all the integration authorities in Scotland. Our response to the initial consultation in July 2017 made it clear that we did not support safe staffing tools that would protect only one element of the health and social care workforce. Conversely, however, that did not imply that we were in favour of tools being extended to other parts of the workforce. When we responded to the second consultation, we stated that, although we understood both the political and public desire to ensure that our health and social care services are appropriately resourced in terms of staffing, our position remained the same: that we would be cautious about supporting a legislative approach, for several key reasons.

There is potential for a significant additional layer of administration and bureaucracy to be added to existing systems. Our challenge in the system is to ensure that, if people do not need to be in an acute hospital, we have sufficient health and social care provision in the community to keep them out of hospital. If they are in hospital, we need to be sure that we can receive them back into the community and support them to be reabled there. That requires us to service acute hospitals and community hospitals across Scotland and to be able to be quick and responsive in anticipating needs and the volume of care that we need to provide or to commission from other providers. We would be very concerned if the legislative process impeded that as opposed to adding benefit and impact and increasing our ability to respond to that need.

There is a risk that the legislative requirement to use particular tools could stifle innovation. We are in a very exciting policy landscape in health and social care in Scotland, where there is a big transformation in developing community-based needs. The health and social care partnerships are not solely about national health service boards and the councils, although they are important partners. Our key partners are communities—the individuals themselves—and the third sector.

We would be concerned if we became preoccupied with a tool when existing legislative and inspection frameworks are in place, along with the new health and social care standards. That could preclude our innovation and our developments at locality level in working with families, communities and third sector partners to develop a range of supports in communities to enhance people’s wellbeing.

It is not just about providing care and support. Isolation is a main issue in Scotland and we need to work with other providers and communities to provide solutions for that. Any tool that is developed needs to be sufficiently flexible and dynamic to allow the developments that we will lead in the next few years to meet local need. It is very much about that.

We are talking about diverse communities, geographies and landscapes across Scotland. I know that colleagues in the islands and rural areas are concerned about any restriction to their ability to respond to local need appropriately and—I must emphasise this—with safety and quality of service at its heart.

We are concerned that legislation is still quite restrictive. Colleagues from AHPs have laid out their concerns on that, and we are equally concerned. In the health and social care service at the moment, there is quite a lot of development of advanced roles to support general practice and the delivery of out-of-hours and other services. We would like to continue to look at that and to see that nothing is dropping off the end of nursing and other roles. We need to look at the workforce that we need. Is it a blended workforce? Is there a baseline workforce for which we can create pathways to a variety of health and social care professions by offering ground-level opportunity?

We are all facing significant recruitment and retention issues across every element of health and social care. We all face a demographic challenge and we need to be able to develop services that respond to that reduction in the availability of employees and recruitment opportunities and develop innovative solutions to attract people, to retain them, and to develop them into more senior or sophisticated roles to meet need across the whole system.

To sum up, legislation should not create a rigid compliance framework that undermines the new integrated environment for health and social care. Each partnership is expected to work at locality level to identify local needs and then meet those needs. We need to be responsive.

Part 2 of the bill, which is focused on staffing and the NHS, does not take cognisance of the significant overlap of governance responsibilities between health boards, integration joint boards and local authorities. That would require clear guidance.

There is tremendous diversity in the workforce in health and social care across care at home, care home provision and intermediate care. The one-size-fits-all approach to workforce planning simply will not work. We have a potential legislative framework, but it needs to be contextualised within that much broader national workforce plan that is happening nationally across all the professions and, looking forward, with our colleagues in schools, colleges and universities around what could be innovative health and care careers that we could feed people into through various pathways into the professions.

Thank you for the opportunity to speak to the committee and I am happy to take any questions.

The Convener

I thank all three witnesses for laying out your concerns in some detail. Questions and answers will henceforth go through the chair. You do not have to respond to every question, but please do respond when you wish to comment.

Sandra White (Glasgow Kelvin) (SNP)

You have already given me some answers to the questions that I was going to ask about health and social care integration, but I want to tease the issue out a bit more. The bill is meant to enhance the work that is being done with health and social care and integration. You talked in great detail about the effect that the bill will have. What effect will it have if it is passed without due care and diligence in looking at the integration of health and social care? What will happen if we do not change the bill to take cognisance of what you have said today?

Patricia Cassidy

It could drive resource to focus on being compliant with the bill’s requirements, and that could add more administration and avert resources from front-line care. Every day in social care, we receive referrals directly from emergency departments, from hospital discharge teams, from general practitioners, from families and from social workers.

That can involve quite a significant volume of work, and we need to flex our system to make an assessment, to provide that care, to link with allied health professionals in order to provide a rounded package of care and to provide equipment, and to do that across a range of several thousand people on a daily basis. That might require us to commission additional provision from one of our providers if we cannot meet the demand internally. We would need to be assured through a commissioning process that that supplier was also compliant, and we would need assurance in that regard. The thrust of outcome-based care involves an assessment of need with the service user and their family and an identification of what their personal outcomes are, and then agreeing a way in which we will jointly work towards those outcomes.

We already have in place checks and balances to ensure that we are commissioning and employing sufficiently registered and high-quality trained staff and that there is coverage across the people receiving care, but the proposals would bring in another dimension.

Kim Hartley Kean

Our central concern is the outcomes for service users. That skewing of resources towards the professions that are covered by the tools has already resulted in significant cuts for AHP service users. My radiography colleagues say:

“at present departments are running with gaps in the rota due to unfilled vacancies, maternity and sick leave, leading to delays in examinations, reporting of results and radiotherapy treatment as well as increasing stress on the radiographers”.

At present, those absences are treated differently in AHPs from how they are in other professions. Colleagues in another professional body have said that, basically, the situation will mean fewer AHPs on all those patient care pathways. For example, multidisciplinary teams delivering rehabilitation in community settings, which prevents hospital admissions and readmissions, reduces length of stay and restores function, which increases people’s independence, would be in jeopardy. They are the new models relating to prevention and self-management that enable people to live in a homely setting. That is what is threatened.

Dr Gosling

To add to what colleagues have said, the situation risks the issues of skills mix and job-role reconfiguration across health and social care not being addressed. It also risks the assurance being given to the public that staffing-level issues are being addressed when, in reality, the legislation would not address workforce needs in line with population, patient and service demand or deal with the need for increases in workforce supply. It risks appearing to provide a solution while not doing so, which would distract attention from more strategic approaches in line with policy.

Sandra White

I would like to maybe get a one-word answer to this question before moving on to my next question. Are you saying that, if a set of workforce planning tools for nursing were put on a statutory footing, that would have the adverse effect that you are talking about?

Kim Hartley Kean

If you are a director, you might see that there is a need for multidisciplinary team planning. However, if only the needs of the service users of nursing are statutorily protected, the interests of people who are using the other members of the multidisciplinary team will not have the same legislative protection. That means that people will ensure that they have the nursing staff in place first rather than thinking about the necessary skill mix.

Sandra White

Patricia Cassidy mentioned integration joint boards. We know that they do not have a statutory duty to produce a workforce plan, as basically they are not employers. How do you see things working from the point of view of the IJBs? You mentioned that you work with them. Do they need flexibility? Do they need to be involved in the plan and in the bill?

Patricia Cassidy

Integration joint boards are required to produce a workforce plan as part of the integration schemes. We are working very closely with colleagues in the council and the health service. The employees remain their employees, but we jointly create a workforce plan.

Sandra White

I apologise; I missed that wee bit.

As the bill stands, do you think that it gives IJBs less or more authority?

Patricia Cassidy

The bill does not add or detract from the authority of IJBs. It has no significance in that way. We are cited in the bill and we are obviously key stakeholders, but we will always work with our colleagues in the NHS and the councils.

I have some experience of working in education, and I would be concerned if, as my colleague described, one or two professions had legislative protection of their numbers, because we have seen that in education, where classroom assistants, bus escorts and so on are subject to cuts against the backdrop of protecting the pupil to teacher ratio and the teacher numbers in schools. I would like us to learn from that and recognise that there is a complexity of skills required to meet need and that each of those skills is valid. Consideration would have to be given, using professional judgment, as to what combination of those staff members and skills is needed. That is much more subtle than a legislative tool might allow.

Sandra White

Absolutely. If the bill is passed, whose responsibility will it be to ensure the adequate supply of workforce? Who will have a say in that?

Patricia Cassidy

I would need to bow to colleagues who have more detailed knowledge of the legislation to answer that. The integration joint boards, health boards and councils work very closely together and currently share that responsibility.

Dr Gosling

At the moment, it is not clear how the bill would address the workforce planning issue. There is, as yet, no workforce planning process in place in Scotland for the allied health professions. What is important and fits well with the integration agenda is to look at the workforce needs across the whole system—not just NHS workforce need, but workforce need from any part of delivering care to patients, as well as leadership, management, education and research capacity. The bill as drafted does not address that.

However, it is imperative that, above and beyond the legislation, a much more strategic approach is taken to what workforce is needed, how that is best delivered and produced and how investment is made to develop the workforce appropriately to meet changing population and patient needs. That can be done only in a multidisciplinary way in order to meet the blended skills mix that is required.

David Stewart (Highlands and Islands) (Lab)

I thank our three witnesses for their excellent contributions. I would like to drill down into the detail of staff planning outwith nursery and midwifery. The committee frequently hears about major problems in Scotland with recruitment and retention. To what extent will the bill aid your difficulties in dealing with recruitment and retention?

Dr Gosling

I am not clear that the bill as introduced would address those issues, because it is not premised on them, but is concerned with staffing levels of the body that is already in place—in just one profession. We are keen that the broader issues around workforce planning, development and investment are considered, such that recruitment and retention are addressed across all staff groups. As I said, there is currently no strategic process to address those issues for AHPs.

It is possible that there is insufficient data to understand the recruitment and retention issues for AHPs. Just one example from a workforce supply perspective is that, for a number of the AHPs, the workforce comes through postgraduate pre-registration education routes. Those are well established—in physiotherapy, they have existed in Scotland for well over 20 years—but they are not funded, so the students who go through those routes are self-funded. If those routes were funded, that could be a useful way of expediting workforce supply. At the moment, the mixed-economy approach and the lack of data make addressing that issue difficult, but I do not think that the bill that we are considering really touches on those issues, so it needs to be integrated into a more strategic approach.

Kim Hartley Kean

The question touches on the clash between other policy and the bill. On recruitment, part 3 of the national health and social care workforce plan talks about considering increasing or controlling the numbers going into some of the AHPs and increasing the number of paramedics in training, but there is nothing in the bill that will enable jobs to be created for those people to go into. On retention, because the bill is focused on one discipline, investment in continuing professional development and the career structure in others is in doubt. The workforce data that is available across the professions shows that there has been very small growth in the AHPs, and that has primarily been at band 5, which is where new graduates go. There is really nowhere to go, and the bill does nothing to address that.

Patricia Cassidy

To be fair to the bill, it does not purport to be a workforce plan, but there is nothing in it that gives assurance that it will contribute to improving the situation with recruitment and retention.

David Stewart

I will move on to planning tools, which Sandra White touched on briefly. Obviously, that is a big element in nursing and midwifery, but when do you envisage multidisciplinary tools being created for other areas, such as the social care sector? If you think that they will be created, can you give a timescale within which those tools will be of practical use to those in the industry, and particularly to the clients who get the service across Scotland?

Kim Hartley Kean

The only clue in the bill as to the answer to that question is in the financial memorandum, which details the plans for the development of tools in the next five years. It states that the tools take a minimum of three years to develop and will be focused on nursing. Therefore, going by the financial memorandum, we believe that there is a risk that we will not see any multidisciplinary tools for up to 10 years, which will be 10 years behind current policy.

David Stewart

That is a long time.

Kim Hartley Kean

That is 10 years for people to wait for adequate AHP services and for us to establish the vision that we share of prevention, self-management and enabling people to stay and be cared for at home. It goes totally against the grain of what we are trying to do.

David Stewart

Would anyone else like to comment?

Dr Gosling

I agree that it seems a long timescale in which to develop those tools. It might be helpful to make the point that, as the professional bodies for AHPs, we have quite a lot to contribute to the development of multidisciplinary tools. A number of us have done a lot of work on safe and effective staffing levels, which has involved taking a more nuanced approach to the complex issues that are bound up with that. We have done work that we could contribute to the development of a much more multidisciplinary approach.

Kim Hartley Kean

Absolutely. Many of the professional bodies have something. In addition, it is important to point out that AHPs are already using multidisciplinary tools. There is not the same level of publicity about, or knowledge of, those tools, and they do not have the same level of investment as the tools in the bill. There are the six-steps methodology and the Balanced System, which the Scottish Government has recently piloted and which concerns AHP provision in children’s services. Therefore, there is something to build on. It could take 10 years to implement the bill but it does not have to be like that.

David Stewart

If I can come back—

The Convener

Patricia Cassidy wants to respond to your previous point.

Patricia Cassidy

The Government and the Convention of Scottish Local Authorities co-produced “National Health and Social Care Workforce Plan Part 2” in 2017. One of the recommendations in that proposes the development of multidisciplinary workforce planning tools. I am not sure what the timeframe for that work is but I understand that it is under way. The plan also proposes the development of a dependency tool, which considers the acuity of need in the care sector. That work will help to inform staffing models and the national care home contract.

David Stewart

Patricia Cassidy has partially covered my next point. We talk about multidisciplinary teams in hospitals and in the community. How is staffing calculated in reality? It is a complex and dynamic issue. I ask the witnesses to say a little bit more about the tools that can currently be used.

Kim Hartley Kean

I cannot say anything about them as a practitioner. To be clear about your question, are you asking about the tools that people are using, such as the Balanced System?

David Stewart

Yes.

Kim Hartley Kean

Children and young people need services at several levels. They need universal provision so that we develop all children’s capacities; children who are at risk of having poor outcomes need targeted services; and children who have identified disabilities or additional support needs need specialist provision. The Balanced System is a way of considering the assets that are available in the school, the family and the community as well as among all the AHPs so that we can decide together how many AHPs we need in a particular population—for example, in Ayrshire or Lothian. That brings us back to Patricia Cassidy’s point: it is about starting workforce planning by considering population need, not how many AHPs we have.

David Stewart

Some people have asked me why we need legislation to have good workplace tools because good management would normally involve such tools. That question has also come through in submissions to the committee. Although it is probably a simplistic general point about the bill, it would be useful to hear the three witnesses’ views on it.

Patricia Cassidy

I reiterate that, as our submission says, there are tools in place and we do not see the need for legislation. However, we embrace the need for good workforce planning for multidisciplinary teams.

Kim Hartley Kean

We must introduce consistency in the intelligence that we need to produce a staffing complement for any particular community. If the approach were more multidisciplinary, it would support the delivery of the new model. The common staffing method in the bill contains many good things that people need to take into account. Because workforce planning is complex, it will be difficult ever to reach perfection, but we want to move away from a wet-finger-in-the-wind approach and people making decisions based only on what their knowledge happens to be and move towards a system that reassures the public that the services that they need and might need in future are being planned for and are not down to some random decision making.

Dr Gosling

Adding to what colleagues have said, I think that the question whether legislation is what is needed or is what will meet the spirit of the bill is very valid. What seems to be missing from the bill as it is couched is accountability. However, if there is going to be stronger accountability for ensuring safe and effective staffing levels to deliver safe and effective care to patients, any such move must be predicated on integrated and strategic approaches that are robust and which focus on the whole system, not just one part of the workforce. I think that the question whether this is the right thing to do is a multilayered one.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Good morning, and thank you very much for your presentations.

I want to pick up on the impact of the proposals on integration. The committee has done a lot of work on the integration agenda—indeed, we have had an inquiry on that issue in the past year—and, with the bill’s introduction, I have a niggle that it might fly in the face of the good work that we have been doing through integration by creating a silo in which primary care gets a different set of rules and is considered in a more focused way than AHPs, social care and all the other arms of integration. Could we remedy that in the bill by including AHPs and social care provision, or should we just tear it up and start again?

The Convener

That is a very good question. Who would like to answer it? Does the bill provide a platform or is it going in the wrong direction?

Kim Hartley Kean

First, AHPs work across health and social care. The bill’s general principles would be okay if they were extended to cover outcomes, and it could create some kind of foundation. As far as the specifics are concerned, however, I would remove the list of tools and, as Sally Gosling has suggested, set up some strategic way of continuously improving the way in which we plan for staffing that reflects the evidence base and new models. The bill provides a foundation, but it needs to be changed radically. I hear what my colleague Patricia Cassidy has said about not having legislation at all, but I think that the bill could be significantly improved instead of its being chucked out altogether.

Patricia Cassidy

It is helpful to think about the bill’s origin, which was about having a uniprofessional model for nursing, and it is to be lauded for that and its aim to secure safe staffing across all care groups in the NHS. Indeed, my colleague, the nurse director in NHS Forth Valley, is a real supporter of the bill.

I think of this as a train that began on a journey; integration happened, and we joined that journey. The development of the tool started about 10 years ago, before the current policies on integration and health and social care were put in place. In an ideal world, we would start from the other end of the telescope by visioning our workforce needs, the services that we want to provide across health and social care and the skill mix from a very low to a very high level, striking a balance across the system and then looking at how we get from where we are now to having a blended, multidisciplinary workforce. Obviously, this is not an ideal world, but that would be one way of finding a solution, and it would not come at the cost of the long and hard work that nursing colleagues have put into the tool. The fact that things have been extended has raised a whole series of questions at this meeting.

Dr Gosling

I agree with my colleagues that the bill is an odd place to start. The introduction of the bill as it is framed seems an odd contribution the delivery of Scottish health and social care policy. It would be helpful and important to take stock of the available evidence about what works and how legislation that is introduced in good faith may have an unintended impact. The perverse impacts of other legislation should be carefully evaluated to take account of other healthcare systems. I highlighted an example that showed that legislation has led to more reliance on agency nursing staff rather than increasing nursing capacity; reduced opportunities for nursing staff to exercise professional judgment when making decisions; and services deciding to incur the penalty fee for non-compliance with the legislation. None of that was intended by that legislation. We should take strong account of the changed context for what the bill seeks to achieve and recognise everything that has been done in nursing. The risk is that the model is outdated, as the nursing staff survey results reflect. The legislation needs a thorough review to ensure that it is not going in the wrong direction.

Alex Cole-Hamilton

You are all in professions that work cheek by jowl with nurses with regard to integration in hospitals and other care settings. Taken in isolation, does the bill achieve what it set out to do? Is it needed?

The Convener

On the back of the previous questions, panellists may be able to give brief answers to that question. If Alex Cole-Hamilton has a tiny follow-up, this is the moment for it.

Alex Cole-Hamilton

We learned this morning about an horrific case in NHS Highland, where a gentleman has had his social care package removed. He is paralysed from the neck down and has been waiting for the package for months. That case is symptomatic of problems across the health service. Should we use our legislative time to tinker with something that is not badly broken—at least in terms of the nursing profession—or should we bring in legislation that overhauls our approach to social care? That is not a little question, is it? [Laughter.]

The Convener

If any witness wishes to respond to that very broad question, they can feel free to do so.

Kim Hartley Kean

The answer to your question whether the bill is needed is yes. Things are broken and we need massive improvement in how we plan our workforce. The fact of one, two and three workforce plans indicates that there is a lot of work to be done.

Brian Whittle (South Scotland) (Con)

A lot of information is flowing in this direction that we need to gather together. The theme of multidisciplinary working comes up every time that we take evidence and the bill could impact positively or negatively on that. I would like to drill down further into the role of allied healthcare professionals in multidisciplinary groups—specifically, their distinctive and crucial role in bridging the two sectors of health and social care. I am interested in how AHPs play into the preventative agenda. For example, how do they ensure that there are fewer unnecessary admissions into hospitals?

Kim Hartley Kean

I can talk in detail about my profession of speech and language therapy. I hope that the AHP colleagues whom I represent will forgive me, but that is what I know most about. I am sure that Sally Gosling will talk about physiotherapists.

Let us talk about people with dementia. Everyone who has dementia will have an eating, drinking or swallowing difficulty at some stage in the progress of their disease. An impairment of the ability to swallow safely is one of the first things that happens to someone with dementia, so they cough and choke, start aspirating, get chest infections and possibly pneumonia. Speech and language therapists work with the individual, their spouse and home-care staff to assess where the swallow is going wrong. They do that in partnership with radiographers, doctors and the screening and monitoring that is done by our nursing colleagues. The speech and language therapists will make recommendations about how to eat and swallow safely, so that the person is not choking or aspirating and needing to be admitted to hospital. That is an example of the work done in speech and language therapy that prevents people from becoming undernourished, from having unpleasant and traumatic experiences every time they try to eat and drink and from having to go into hospital and have lots of medication.

Dr Gosling

A key development in physiotherapy across the UK is physiotherapists playing a much stronger role in delivering care within primary care and general practice settings, particularly to address musculoskeletal disorders. The evidence is growing that the front-line, first-point-of-contact role is helping to ensure more timely care for individuals and avoids issues becoming worse before the individual can gain treatment. It reduces unnecessary referrals and admissions to hospital, as well as unnecessary tests and medications. Physiotherapists can also develop and support patient self-management.

As Kim Hartley Kean said, there is much potential within each of the allied health professions to build on such preventative, more timely, closer-to-home care for patients, which keeps people out of hospital when they do not need to go into hospital. Those kinds of service delivery models are at risk of not progressing under the approach in the bill, because, as we have said, the bill is predicated on old models of service delivery and does not capture the multidisciplinary team approach. We need to consider how primary care teams work collaboratively in the patient’s best interests and the best interests of the service, as well as how we tackle workforce development to meet those changing service delivery model needs.

Those issues of integration and taking a more strategic approach to meeting changing population patient needs are at risk of not being addressed by the approaches in the bill, which, as Patricia Cassidy suggested earlier, are quite rigid.

Patricia Cassidy

I will build on the theme of dementia. Where we have a person at home with dementia, working with speech and language therapists, physiotherapists and community psychiatric nurses, through joint planning and communication we can really improve the level of care that we are able to provide and the consistency of that care.

If someone is being cared for in a care home, it is really important that the care home staff are aware of the level of care that is required. Community psychiatry can be really helpful in coming in and giving training on how to cope with a particular service user’s manifestation of their illness, how to de-escalate situations and how to work around and retain the consistency that that individual requires.

It is about considering how we can blend and work together, rather than having layers of services going in to meet needs. We want to be clear and agree on the need that an individual has at that point in time and who is best placed to co-ordinate that and who is best placed to deliver it. People will come in and out of that care delivery package, but there will be a joint and shared assessment and multidisciplinary discussions about that patient’s progress or otherwise.

Keeping people in care homes or at home, if that is where they want to be, and avoiding unnecessary hospital admissions, is key. If providing nursing care is challenging for colleagues in a care home, we look at how district nurses and others can go in to provide such care and keep a person in a care home who is at the end of their life and wants to be in a homely setting of their choice. Care is very much blended and planned around the person, and that should be done not in a siloed way but in a shared space.

I point out that the allied health professionals who are directly employed in social care, as well as in the healthcare setting, are occupational therapists.

Brian Whittle

So we should start with quality care that brings quality of life. Who should lead such a methodology? Who should be involved in developing that under the bill? The bill says that the Care Inspectorate will lead the development of new methodologies for social care and that Healthcare Improvement Scotland will lead on new healthcare tools. Do you share my concern that that poses a danger of divergence in development?

Patricia Cassidy

I would be concerned about such an approach, because the integration space is about how we plan integrated care together and how we plan the workforce together. That is key to our success in cutting across areas. People care about getting high-quality responsive services, but they do not necessarily care about whether someone’s uniform represents an external provider, the council or whoever.

People want to know that the members of the team who are working with them are working together and can meet their needs. It should not be the case that no conversation takes place in teams; if district nurses and carers go in, they should speak together and plan the care together. Integrated teams provide that approach, because staff speak to each other daily, work together, do joint planning and assessing, and, when it is required, they adjust care or pull in other professionals.

Previously, the GP was often the point of entry for care workers and social workers, so they had to go back to the GP for someone to have access to a service. That took up a lot of GP time. When we establish the shared understanding among professionals of limitations and responsibilities, that takes a lot of the obstacles out of the way of delivering responsive care in a timely manner.

Kim Hartley Kean

The AHP Federation suggested in our submission that HIS should be given an equivalent role to that of SCSWIS. That would offer the potential for consistent integrated planning across health and social care. Having that equivalence and ensuring that we work together, as Patricia Cassidy described, would be innovative and transformative across the two agencies in planning services. Beyond those statutory sectors, the integration joint boards have clear relationships with service user forums and the third sector.

Such an approach offers opportunities for much better integration. It would be good for the bill to enable and facilitate joint working.

Emma Harper (South Scotland) (SNP)

The discussion has been really interesting, and a lot of it has focused on allied health professionals. The Nurse Staffing Levels (Wales) Act 2016 focused only on medical and surgical acute care, but the bill goes further than that by including the community.

My background is 30 years in nursing. The bill says that the guiding principles are

“that the main purpose of staffing for health care and care services is to provide safe and high-quality services”

and

“that, in so far as consistent with the main purpose, staffing for health care and care services is to be arranged”.

The bill goes on to refer to service users’ needs and abilities and all that.

Yesterday, I had a conversation about an upside-down triangle of health and social care, where the broad part at the top represented care that is provided in the community and the pointy bit at the bottom represented acute care. Some care is delivered in acute settings, but most of it should be delivered in the community.

The bill needs to be good at focusing on the differences in communities that require allied health professional input. I agree that we should not be working in silos in health and social care, and that the bill has come about after 10 years of implementing tools, and we have seen a patchy approach to the way that the tools are accessed and used across the whole of healthcare, even in the NHS. Does the bill not support better training and enablement of the use of tools, and could not the professional judgment tool and the quality tool be used as part of that, feeding in to allied health professionals’ contribution to whatever we see as the best way to staff and plan our workload?

Kim Hartley Kean

The short answer is no, it does not feel as if that is going to happen. If we look at what is happening already around attention to the needs of AHP service users, we see that we could not be confident that there would be some kind of hoped-for trickle-down effect, if that is what you mean. It is important to point out that AHPs work in both acute and community provision. The bill as it stands would allow training and enabling use of those specific tools for those specific staff groups.

As Patricia Cassidy noted, the survey that has been published on how the tools are used has noted their patchy use. Patchy use might indicate a lack of training, which is one of the messages, but it might also just indicate that the tools are not any good. We all have a kitchen drawer full of bits and pieces, but we use only the tools that work. I do not mean to be flippant, but are those the right tools? Sally Gosling has made it clear that there is no evaluation of those tools. In fact, none of us can tell how good those tools are, because they are not publicly available to anyone. The CSP has worked hard to get hold of them and we cannot, so you are in danger of putting into legislation something that nobody knows about.

Dr Gosling

It is possible to see the Scottish bill as progress from the Welsh legislation, from the point of view that it is not just focused on nursing in acute adult in-patient wards. As you would expect, we had and continue to have concerns about the impact of that in terms of the risks of staffing resources being focused on meeting the legislation and not on being in line with the direction of health and social care policy.

It is progress from that point of view, but the tools that we understand underpin the legislation are predominantly acute-care focused, and the feedback in the survey results was that nurses who are currently using them found them particularly limited in relation to community-based service delivery and did not seem to have a huge amount of confidence in them. However, as I said, we are not aware that an evaluation of those tools has been undertaken.

As Kim Hartley Kean said, if the legislation were to be progressed, we would want to have some direct involvement, as AHP professional bodies, in how that is done, given the work that we have done around safe and effective staffing levels, on which we have done quite a thorough appraisal of different approaches. We feel that we have a lot to add to how it could be done differently that would be in line with a whole-system approach and could add to a multidisciplinary approach. At the moment, we would be sceptical about the starting points as couched in the legislation.

Patricia Cassidy

For the avoidance of doubt, there is no evidence base to show that those tools will work across health and social care, and no evidence base has been applied to other professions such as social work or social care provision to show that they would work. We need a more thorough evaluation of the success and the evidence base within nursing. We also need to be sure that the impact of any legislative tool is to improve outcomes for people who require our care and support services.

Emma Harper

As far as I am aware, the tools are being revised, because they have been used—or not used—and obviously there needs to be further education on their implementation and use. The tools have been developed by clinicians involved in the specialty areas such as community, mental health and maternity. I agree that any legislation needs to be based on evidence—that is the number 1 priority. I look forward to having clearer evidence, if it is not already out there, to use as the basis for supporting or changing the bill. For me, allied health professionals, especially those who are working in the community, need to be included in the bill. The allied health professional teams are working together with nurses in the community and need to be considered as part of the bill.

The Convener

I see assent from all the witnesses. I think that what is being said is that we need the evidence first.

Miles Briggs (Lothian) (Con)

I want to carry on from Emma Harper’s point and from Brian Whittle’s point about capturing quality, because that is one thing that we have kind of lost. Given that we are told that the idea is to have two speeds for the bill, how do you capture information on quality, outcomes and impact at present without the tools, especially in a community care setting?

Kim Hartley Kean

We are not doing it without tools, but it is left up to the professional bodies. Obviously, we are here for people who use our services and we want the best provision possible. My professional body has developed outcome measurement tools and tested them across the UK, and I am sure that a number of other professional bodies have done so. We have set up a platform that allows speech and language therapy services to record and report the outcomes that they deliver. Therapy outcome measures are a common tool that people use, and we have adapted those to be used by all our speech and language therapy services in reporting.

Rightly, all AHP leaders have to make the case for investment in AHP services, and they will use the data that is developed through those outcome measurement tools to make that case. One of the main drivers of the development of those tools is the need to create a case based on outcomes. There are outcome measures.

Dr Gosling

As we have said throughout, our key focus is on the quality of patient outcomes. As Kim Hartley Kean said, AHPs use tools to appraise, evaluate and demonstrate the quality of their outcomes for patients. To go back to the example that I cited on physio roles in primary care relating to musculoskeletal conditions, with other key stakeholders, we are undertaking a thorough evaluation of the impact of that new model of first-contact practitioners.

Professional bodies have a strong focus on demonstrating value and impact in taking forward service improvements for patients. As currently couched, the bill is focused much more on issues of input and activity of staff than on quality of outcomes or, potentially, quality of experience for patients. We are talking about different aspects of quality. The issue is how we ensure that the bill is focused on quality of patient experience and outcomes and not on input and activity, which is what staffing level tools have traditionally tended to focus on. We have done work to shift that and to focus more on patient outcomes than on things such as inputs, tasks and activity.

Patricia Cassidy

The current legislative framework for social care is set out in regulation 15 of the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011, which has regulations and a scrutiny framework. The Care Inspectorate inspects all the services that are provided and the new health and social care standards that came in this year, which are a key focus of inspections, very much focus on outcomes, particularly outcome 3, which is:

“I have confidence in the people who support and care for me”.

Care homes began to be inspected against the health and social care standards in July this year. That is a whole new filter that is very much outcomes focused.

At a more local level, across the multidisciplinary teams, there are a range of outcome measures. People’s person-centred plans are developed using their personal outcomes and with their carers. Under the Carers (Scotland) Act 2016, we are required to do planning with carers as well.

A range of checks and balances are in place to measure outcomes, safety and quality across the services.

The Convener

I thank our witnesses for their informative contributions, for answering a wide range of questions and, of course, for their written submissions.

We will now take a short break and resume at 11:50 with our second witness panel.

The Convener

We resume our evidence taking on the Health and Care (Staffing) (Scotland) Bill with our second panel of witnesses: Rachel Cackett, policy adviser, Royal College of Nursing Scotland; Dr Mary Ross-Davie, director for Scotland, Royal College of Midwives; Dr David Chung, vice-president, Royal College of Emergency Medicine Scotland; Professor Alex McMahon, executive nurse director, NHS Lothian, who is representing the Scottish executive nurse directors group; and David McArthur, director of nursing, midwifery and allied health professionals, NHS Orkney. I welcome all of you to this morning’s meeting.

As you might know, we have already taken extensive formal evidence on health and social care and allied health professionals and on the tools that are a focal part of the bill. I ask each of you to comment briefly on your overall view of the bill and what it brings to objectives for health and social care. Perhaps Rachel Cackett can start.

Rachel Cackett (Royal College of Nursing Scotland)

I am happy to do so, convener, and I thank you for the opportunity. It has been an interesting morning, and I am sure that the discussions that you have already had will give us a lot to build on.

The Royal College of Nursing has submitted extensive evidence and has been working with the Government—and now through the parliamentary process—to develop the bill for the past 12-plus months. We have heard a little bit about this already this morning, but the first point that I will make is about how far the bill has moved from where it began, as a means of simply putting certain tools in legislation. It is important to note how far things have gone and how complex the bill now is, and there is still work to be done.

There are six areas where the RCN is particularly keen for the bill to be improved. First—and we have heard a lot about this already—the bill must be rooted in positive outcomes for patients and staff, because if we have an overstretched staff and workforce, the members of staff who go the extra mile every single day will struggle. Indeed, that is the situation that we are in. The first panel giving evidence was asked why we need this bill, and that is certainly the reason. There is clear evidence of a link between patient outcomes and nursing staff, and, if it helps, we are certainly happy to provide some of that evidence to the committee.

There is work to be done to increase the level of the strong professional voice in the bill—and I stress that term “professional voice”. I am speaking today for the Royal College of Nursing; as nursing forms our remit and mandate, it is important that nursing has a voice in all of the bill’s elements. That is what we hope to see by the time the bill completes its parliamentary passage. That does not mean that we are trying to exclude other professions; it is just that that is the mandate that we are speaking to.

It is important that decision making about staffing is informed, which means using the best available evidence and data. Obviously, the duty to follow the common staffing method in the bill is limited to emergency medicine as the only area in which there is a multidisciplinary tool, and to nursing and midwifery. The RCN is clear that we have spent a lot of time in Scotland developing a series of tools for the largest workforce in the NHS, which provides 24/7 clinical care. It is often high-risk clinical care and we have to be aware of the patient safety elements that the bill affords us the opportunity to address. However, that does not mean that those tools are set in aspic. They are not and it has never been our position that they are. It was mentioned that the tools are being reviewed. Even for us, not all elements of nursing are included in the available tools. For example, prison nursing—an area on which we have done a lot of work—does not have a tool attached to it.

We would like the evidence to be developed for nursing and other professions, but we do not want what we already have to be dropped, because that would be a retrograde step. Kim Hartley Kean used a helpful phrase when she talked about not wanting to put a wet finger in the air. For a significant part of the workforce, the tools give us the starting point and the opportunity to learn and develop more. It would have helped had provisions for how the methodologies will be developed in the future appeared clearly in the bill—we certainly seek for that to be the case—and had the financial memorandum given a greater, timed commitment to the extension of those tools for nursing and our colleagues.

We want responsibility, accountability, real-time action and long-term planning to be a part of the bill. The paper that the Government shared last night was helpful and clearly sets out areas for development. The common staffing method is a means for setting establishment. It goes beyond the current tools to include far more data about how professional data will inform that establishment. However, it does not deal with real-time risk, which our members need it to do and patients should expect it to do. What happens if a nurse turns up on shift and there are not enough staff, or not the right staff, to deliver the required care? In our submission, we provided a schematic for how that could be better dealt with. My understanding is that the Government’s thinking is that it will be linked to the general duty to provide appropriate staffing. However, we must remember that that duty is for all staff, not just nursing, midwifery and emergency medicine.

There is no scrutiny or sanction in the bill and we would like that to be added. We do not want another measure like the 12-week referral to treatment target to be put into legislation that can be breached as many times as we like without it making any difference. The bill must have teeth. It is a crucial patient safety issue and we need to ensure that there is accountability in the right place.

One issue with the bill is that, in part 2, which focuses on the NHS, accountability is put on to boards to deliver the general duty. That is important, but it needs to be linked to a scrutiny methodology. HIS is reviewing how it undertakes scrutiny to include that, which provides a great opportunity, but there also needs to be an opportunity for public scrutiny when things repeatedly go wrong or something very serious happens. We need to ensure that staff on the ground are enabled to undertake that scrutiny in real time and that the Parliament and others have a role in doing that over the longer term.

We need to ensure that there are enough staff to care. I know that the committee spoke informally to many senior charge nurses this morning. They are crucial to the process. They set the culture for their teams, supervise them and set the staffing to deal with risk. If we do not free up our senior charge nurses and their equivalents in the community, the bill will not be able to do what we expect it to do. It is extremely important to note that, as comes out in the staff survey, they do not have the time to do what they need to do. Therefore, we seek for the bill to make senior charge nurses and their equivalents in the community non-case load holding so that they are freed up from direct patient care to be able to supervise their teams’ work and ensure that it is safe.

We also need to ensure that supply is dealt with, but the bill does not do that. We cannot tie the hands of boards and put a duty on them to provide appropriate staffing if the supply, which is held by the Scottish Government, does not come through. We would like that to be added.

We appreciate that part 3 is complex because of the landscape in which it works. However, our interest in that relates to our clinical nurses who provide clinical care in the care home sector. Our stance is that a patient should expect no difference in the clinical care that they receive whether it is in a care home, their own home or a hospital. That is why we support part 3.

Dr Mary Ross-Davie (Royal College of Midwives Scotland)

The Royal College of Midwives believes that the bill might help to establish a consistent strategic focus on the staffing of maternity services. We have been grateful for the focus that our sister organisation the Royal College of Nursing has given to the legislation. We have been working alongside the RCN to effect change in the nature of the bill and support the developments that are needed to ensure that the planning tools are fit for purpose.

The committee will have heard from some of my colleagues in the pre-meeting this morning that the existing midwifery planning tool has some weaknesses, and there are issues over how effectively it has been implemented. Implementation has been a bit patchy.

We recognise that the preparations for the introduction of the bill have led to greater focus on the need to amend and develop the midwifery workforce planning tool and to increase the support that is provided in health boards to run the tools successfully.

The bill is part of a much wider picture ensuring that we have safe staffing levels and midwives in all parts of Scotland. We have particular challenges in recruiting and retaining midwives in the north of Scotland and in more remote and rural areas. There are a whole raft of supports and changes needed in addition to the bill.

The committee will know from the SPICe survey that was undertaken earlier this year and from our consultations with our members that there is a range of problems with the current midwifery workforce planning tool. I apologise for not having tabled this before today, but I have copies of a paper for the committee that summarises the challenges that have been identified.

Some areas in Scotland have invested significant time and energy in providing dedicated time for completion of the tool and training. In those areas, there have been instances where a staff shortfall has been identified and a business case could be made for more midwifery staff. We acknowledge the significant amount of national activity now under way to ensure that staff are trained to use the tool effectively and to give on-going support.

Dr David Chung (Royal College of Emergency Medicine Scotland)

The Royal College of Emergency Medicine is broadly supportive of the principles behind the bill. As others have said, it is important to have oversight and integrated planning of the health and social care system within Scotland. The bill acknowledges that. We have an unofficial motto—if it is right for the patient, it is right for the emergency department.

We are the interface between different parts of social care, primary care, secondary care and public health. We see things quickly and issues manifest for us more acutely than for other areas. Most of the times when we feel that patients may be getting a raw deal—when they are waiting for a long time on trolleys in a department trying to get into a bed or to go somewhere to be processed rapidly and have their needs met in a clinic or wherever—are due to staffing issues elsewhere in the system. While we welcome the emphasis on multidisciplinary care within emergency medicine, it is also important that there is an emphasis on care outwith the emergency department. Staffing levels in other areas need to be adequate for the whole process to run smoothly. We are the canary in the mine or, for younger people who cannot remember that, the indicator light on the dashboard telling you that you have a problem in your engine.

As others have said, the principles are good, but we need to accept that, although the concept of the bill is sound, it will be an iterative process and there needs to be feedback from clinicians of all stripes if they find that bits of the bill are not workable, that the tools do not provide what is necessary or that there is a weakness. There must be the ability to rectify matters as soon as possible. That is the same for any process, whether in health, social care, industry or wherever. If people feel that there has been a mistake, we need to be able to correct that. There is no point in doing the same incorrect thing, just because it has been set in legislation.

It is also important that there is transparency in data recording. When the legislation comes in and various organisations show how they have implemented the tools and reached appropriate staffing levels, the process should be in the public domain. I am not sure whether the bill makes that explicit. It is important because it involves the taxpayer’s money and it is important that we are able to say that the process is transparent and open to scrutiny.

In short, the RCEM is broadly supportive. The bill should help speed and provide greater impetus to true integration of health and social care. Although we are making some steps towards that, it could progress at a faster pace. As long as we are mindful of that, it definitely has the potential to benefit patients and staff and improve the human experience of everyone working in health and social care.

Professor Alex McMahon (Scottish Executive Nurse Directors Group)

I will build on some of the comments that people have made, all of which I agree with. No one would disagree with the principles of the bill or the aspirations for patient safety and looking after the staff we employ. Most people would agree that although, as they stand, the tools are not perfect, there is a process to review those tools and their implementation. That has a bearing on the infrastructure that would support the running and analysis of the tools and the implementation of their findings—we have not had that before. We want to address those issues with the Government and others.

The principles of the bill also relate to how health boards, councils and integration joint boards work in partnership. There is already a workforce planning process in place and we need to build on that, and not just from a nursing perspective. In my role, I am also responsible for AHPs in Lothian. I have a duty at executive level to ensure that the voice of AHPs is heard at workforce planning level and professional level.

As the tools progress, I want them to become much more multidisciplinary, because we need to ensure that patients get access to the right staff, across the spectrum, and not just in the nursing profession.

It is important to consider the process around escalation from a public scrutiny point of view, but it must not become bureaucratic and interfere with the daily business of health boards.

David McArthur (NHS Orkney)

I will give an outline of the scale of NHS Orkney, which is the smallest health board in Scotland. A head count of our AHPs gives the princely sum of 40. We have 62 whole-time equivalent community nurses and we have 135 WTE hospital nurses.

Although we are not talking about huge numbers of people, we run into challenges when we apply the staffing tools, for example in our lack of resilience. Our bank nurses are already wholly employed by the board, so there is no spare capacity. We tend to staff up by working towards a worst-case scenario. The tools will be helpful for us because they will provide transparency and will, we hope, support our approach, particularly the professional judgment tool.

I entirely support what my colleagues have already said. It is about transparency and being able to demonstrate that we are doing the right thing and have the appropriate amount of staff. I have some concern about the lack of specificity in the bill on the impact on remote and rural areas. That goes back to earlier comments about the Scottish Government holding the supply. We need that supply coming on to the islands and we need that flexibility in the workforce.

In support of my AHP colleagues, I will say that we need to build a very strong multidisciplinary workforce that can work across barriers and professional boundaries.

On any caveats that we may have about the bill and the tools, I see the bill as a huge opportunity that we can utilise to build that multidisciplinary workforce and to ensure that the workforce tools are utilised properly. One of the issues that we have with the workforce tools is that there is a lack of knowledge in their application. We need to ensure that that educational piece is out there. Where the tools are not working for us, as professionals, we need to put our hands up and say so, but we also need to provide an answer to those questions.

Sandra White

Good morning and thank you for your presentations. As others have said, things have moved on, but it seems that you are saying that you would like the tools to move on a bit more, and for there to be more of them.

I have a question that was raised by the previous panel of witnesses, who said that the bill and the tools are acute-service based. Do you agree? Your answer could be a quick yes or no, but please expand on that if you want to.

Dr Ross-Davie

I can certainly speak from a midwifery perspective. In the original research to develop the midwifery workforce planning tool, some observations were apparently undertaken not just in an acute labour ward setting but in community settings. However, when we speak to colleagues in the service, they make it clear that they feel that the tool is more effective in the acute setting—in other words, in labour wards or antenatal and postnatal wards—and less so out in community settings.

One key problem is that the tool’s community elements allow community care to be provided only in working hours. Obviously, not all babies born out in the community come between 9 o’clock and 5 o’clock, Monday to Friday. There are a significant number of home births and births in midwife-led units all over the country, and there have been real issues with acknowledging that care and ensuring that it is being recorded correctly. That key element is not well covered in the midwifery workforce planning tool, and we hope that the look that will be taken at this issue will improve things.

We are particularly concerned about the issue because, as a result of “The Best Start” review recommendations, maternity services will definitely become more community based over the next five years, with many midwives moving from hospital settings out into the community. As a result, the tool must be robust and fit for purpose to ensure that we have safe staffing levels in the community, particularly in remote and rural areas, where midwives sometimes have to drive four hours there and back just to make one postnatal visit. That needs to be taken into account, and colleagues in remote areas have certainly said that they feel that that is not done effectively at the moment.

Professor McMahon

Many of the tools were developed at a time when many of the services that we currently deliver were not being delivered by healthcare professionals. For example, prisons and police custody have been mentioned. We have only recently delegated to IJBs responsibility for community mental health, learning disability and substance misuse services, and as time progresses, there will be a greater need to look at how we provide that care to people in different settings and the workforce requirements in that respect. There is now much more scrutiny of that issue, and we need to rebalance some of the tools to ensure that we take as much cognisance of the community elements as we do of the acute elements.

For me, the issue is the pathway for patients. Patients are not quite linear—they do not just go into one bit of a system. Instead, they cover many pathways, and we need to ensure that we have synergy and connectedness.

Rachel Cackett

The tools that are currently in the bill include community ones. They are not comprehensive and, at this time, do not cover all areas of community nursing, but they are there. There are more tools that sit in specialties in the acute sector; however, they are not just for that sector, which is to be welcomed.

One area that will be covered in the review of the tools, which the Scottish Government has begun, relates to the fact that the services that nursing is providing in the community are now very different from what they were 10 or 12 years ago. As we change the way in which we deliver services and as new options come online, people will now receive in the community the sorts of services for which they would previously have gone into hospital. That certainly needs work, because there are areas of the community that are not covered.

A linked issue that the committee discussed earlier is the multidisciplinary approach and what that might look like, particularly in the community. We need to pick that apart a little. I do not think that there would be a single person around this table, including me, from the RCN, who would not promote the need for multidisciplinary teams if they are exactly what is required by patients and service users either in the community or the acute sector. The team has to be multidisciplinary where that is the right approach to take.

However, when you come to set your establishment and understand your workforce planning, you have to know how many of each individual profession you require in your team to meet the needs of individual patients. For example, you need to know how many paramedics you need in the back of an ambulance to run an ambulance service, and that might or might not be done on a multidisciplinary basis. Moreover—this brings me back to the discussion about what the changes might look like in the care home sector—you need to know how many district nurses you need to deliver your multidisciplinary community service. It is therefore really important to bear in mind that, when you set establishments—particularly when you think about the number of bodies needed on the ground in one day or, at Scottish Government level, the supply that you are planning for—you have to know how many nurses you need. Of course, that does not mean that that will not then be applied to a multidisciplinary setting.

Often one tool might not be appropriate. For example, I would be surprised if someone who ran a 24/7 nursing service that had sessional input from our AHP colleagues used exactly the same tool to work out whether they had enough physios or OTs as the one that they used to work out whether they had enough nurses. However, they would use a multidisciplinary workforce planning process. We must bear it in mind that the bill does not necessarily deal with everything that has been described.

Dr Chung

It is important to try to lose the distinctions between community and acute settings, because they are part of the problem. More staff might well be needed in the community, which would ameliorate negative effects on acute care, and vice versa. As the tools become better developed with feedback, we hope that the outcome measures will be decided, which will allow us to know whether the tools are working. The community tool should not look only within the community or at the average level—it would be a mistake to use the average to plan capacity, because that would mean that the supply was not enough for half the time.

We support the principle, but we are talking about what we want to happen. Will the community tool mean that no delayed discharges occur? More important, will it enable people to have assessments at home, as they do in East Ayrshire, so that they do not get anywhere near a hospital, which is good for them? Will the tool mean that there are enough acute staff so that, if patients need to come into hospital, they will stay there for the time that they need to, rather than go out into the community? That will ensure that the two sides do not create a constant merry-go-round for patients, which they do not need, because the capacity is not right on either side.

I emphasise that, whatever the tools are, we cannot afford for them to be seen in the next five to 10 years as a community tool or an acute tool. All the tools should be integrated; that is how the system should be developed.

David McArthur

I wholly support that. We mentioned the challenges in midwifery. We support home births from our central base in Kirkwall out to Papa Westray, which can involve a helicopter or a boat ride of a couple of hours. While we wait for a midwife to arrive and for the team to get to the location, we need the ability to provide care, which is where our multidisciplinary piece comes in.

I agree that the workforce tool needs to be based on a holistic view that provides continuity and a continuum of care; otherwise, we will end up siloed and lose the ability to flex. Such an approach also allows the IJB to commission appropriately and to provide the correct services.

Sandra White

Looking to the future, the tools as they stand do not seem to be fit for purpose. The witnesses might not agree, but will they say something about that? All the tools are based on the Scottish standard time system, which deals with pay and staffing. It is difficult to look beyond that to the upside-down triangle that my colleague Emma Harper described. How do we fix that? Everyone wants the bill to work and to do so for the community. Are the tools that are based on the SSTS fit for purpose? How do we get round that to include other issues?

Professor McMahon

The SSTS is simply an e-payroll system; it is not necessarily fit for purpose, because it involves a lot of entry of information and duplication of effort by staff to triangulate information from the system for workforce planning. The Scottish Government is leading a piece of work with NHS National Services Scotland to review the system and consider a better platform and information system.

That is one element; another element is education, training and awareness about the tools and the implementation of their outputs, whether that involves a desktop exercise or running information through an e-system. Latterly, an issue has been the expert capacity in the system to work with people such as me to ensure that the outputs from tools are being interrogated, analysed and turned into robust plans.

All those elements are being addressed. If we have got them right by the time the bill is enacted, that will put us on a better playing field.

David McArthur

I reiterate what Alex McMahon said and emphasise that, when the tools were first established, there was a huge training effort to support them. That cohort of trained people has changed and moved out. We have not kept as up to date as we should have on the tools. The tools provide us with a starting point, and the direction of travel in the way that they are being introduced is correct. That is recognised by the chief nursing officer’s office, which has provided the boards with an expert resource, both from within that office and to be recruited from within the boards, to provide continuity and additional input.

Rachel Cackett

As I said, no one wants tools that are set in aspic, because the world moves on. It is encouraging that the Government has put in a process to review the tools. That process should be on-going; we cannot let the dust settle on the tools at any point. They must be fit for purpose.

That is why the bill should be amended to include a duty to have in place an on-going method of review. We must be able to say when a tool has come to the end of its life and we need a new one, and we need to be able to keep the tools that we have up to date. That important process is missing.

Under the social care provisions, the Care Inspectorate has responsibility for developing new methodologies, but again the bill does not go far enough, because it does not say that the Care Inspectorate needs to keep the tools up to date and set out the process for doing that. Those are important issues that we need to look at to make the bill more fit for purpose.

I go back to the survey and the discussions that we have been having with our members. When you want to run the tools, you need the education, the time and the expertise to do so. Those things matter and have to be in place, and we need to look at where the levers are in the legislation to get that right.

Brian Whittle

This is probably an appropriate time to mention my entry in the register of members’ interests, which states that I have a close family member who is a midwife.

I want to follow on from Sandra White’s questions on the technology. If the bill is going to succeed, it is fundamental that the technology that underpins it will support the tools that are required. I have heard in evidence and again at our pre-meeting this morning that a wide variety of tools are used by midwives and nurses. This morning, some did not recognise the names of the tools that other areas use.

As Alex McMahon mentioned, the SSTS platform was not built for purpose and is therefore not fit for purpose. Are you suggesting that, before the bill can go anywhere, we need a platform that is developed specifically to deliver and better regulation of the tools across the profession?

Professor McMahon

I know that NSS is looking to procure a new system and I believe that it hopes to have that by the end of the calendar year. There is then the issue of how that can be developed and implemented. One would hope that that could work at the pace at which the legislation goes forward.

It is not just about having a system in place; it is about having people trained and educated to use the system. There is a lot of work to be done. The systems also have to be tested. Not to have a new system in place and then to introduce one after we have introduced the provisions in the bill would cause confusion and more work for people. I am not saying that one should prevent the other from progressing, but in an ideal world it would be nice to see both coming in at the same time.

Dr Ross-Davie

The introduction of the bill has focused people’s minds on what is not working. That has certainly been the case for the midwifery workforce planning tool. Views were sought from the heads of midwifery on how effective the tool is. It is clear that implementation was patchy, and at least half of the health boards felt that the tool did not reflect what they needed. The introduction of the bill has helped to move things forward and the work on the new platform is well progressed. It helps to do this in tandem.

Rachel Cackett

What we are hearing and the information that you got back from the survey shows that there is not a uniform picture. Things are working more fluidly in some areas than in others. That is part of the work that the Government is now doing with its additional support. As Dr Ross-Davie said, it will certainly focus minds in boards and elsewhere on rethinking how the tools are implemented. I would certainly be reluctant to say, “Let’s hold off until everything’s perfect” because, as we said earlier, it is an on-going improvement process that should never stop. The health service is built on an improvement focus, as is our social care service.

There are other platforms that we are looking at. The care assurance system that the CNO is developing through the excellence in care approach will give us really important indicators about the quality of care that is being provided and the outcomes for people, and that is being developed in tandem with the bill. It is really important that we do not forget that there are other indicators and platforms out there.

We must remember that the common staffing method is more than just the tools. The RCN lobbied hard for that to be the case and the Government listened. In setting an establishment, it gives those with professional judgment a variety of other means to come up with what the establishment should be. It is not limited to the tool alone; we will look at other things. For example, we would like to see the addition of professional guidance from royal colleges or from peer-reviewed international evidence, which could be brought in by those who have the professional judgment to make decisions on what an appropriate staffing level would be for any particular setting.

David McArthur

I reiterate what Alex McMahon said. Ideally, we would see the new platform and the bill come together—that would be the perfect solution. In my previous employment, it was made clear to me on many occasions that we needed to go with the best current solution rather than holding up the plan, because we will never get the perfect plan, and we need to know whether is it going to survive first contact.

Professor McMahon

I want to pick up on what Rachel Cackett said. I guess there is potential to run with systems that do not necessarily all collect the same data and are not defined in the same way so that we start to select things as we wish in order to try to make the argument. However, what we really need is a like-for-like or an apples being compared to apples situation, not the situations that we might have had in the past, whereby we got different outputs depending on what day of the week it was or what question we asked. We need absolute clarity and consistency.

Alex Cole-Hamilton

Good morning to the panel. I have a large narrative question and then a couple of more detailed questions, which are perhaps more for those who deal with the nursing profession daily.

Dr Chung, I was struck by your reference to the canary in the mine. You described coherently and in great detail how the problem in social care is causing an interruption in flow that is manifest in accident and emergency services. You cannot release people into the wider hospital because there are no beds to receive them. Are we missing a trick by not including aspects of social care? Will that cause us problems for the whole integration experiment because the bill is so siloed and focused on primary care?

Dr Chung

You have summed up quite nicely the points that I was making. It is essential that social care is involved, because that is where a lot of the capacity is. A lot of this is aimed at what is best for the patient, and if patients are getting the right care it should also turn out to be what is best for the staff. The two have to go hand in hand.

As I have indicated, the bill needs to account for integration and the fact that the different parts of the system cannot afford to plan in isolation from one another. They will have to work together. We hope that the effects will be positive, but they could be negative if one bit does not get it right. Whatever tools are developed and whatever planning occurs in a particular area, we must ensure that there is a broader scope and some overview to say, “That’s all very well, but is it going to have a negative unintended consequence somewhere else?” Planning is littered with such considerations. If we make the system one where rapid assessment is possible, we will be able to change and update the tool to ensure that that does not happen.

Your analysis is correct. It is imperative that all parts of the health and social care system are involved. Emergency medicine is called “emergency”, but a lot of it is social medicine as well, in some ways. People come to us because there are issues in their lives and we are available, but we are often not the best place to solve their problems.

Increasingly, we are seeing some very good work in Scotland about using other staff groups to help and signpost people to the right places. For example, there are navigators in big hospitals, including in Arran and Ayrshire, and there are roles such as community connectors and adult support and protection. Those are all integrated groups that can get to the root of the problem. If we apply that to the likes of paediatrics and adverse childhood experiences, that will solve the problem for the next 20 years. If we can get to grips with the early childhood stuff, there will be less work for us to do in accident and emergency.

It is difficult to nail this down with the tool that we have at present. It is easy to look at a defined group but, as the tool develops, it needs to become more sophisticated to reflect where the system is going to get the biggest bang for its buck, for the patients’ benefit and for value for money for the taxpayer.

Alex Cole-Hamilton

Thank you for that. My second question is a bit more detailed. With the toolkit and the other provisions in the bill, it is clear that this is about better workforce planning. I have been struck by the focus in our background briefing on head count and being sure that we have capacity, but it is not always necessarily clear whether that is the right capacity. Should we specify the need for an appropriate skills mix within the staffing that we are planning for?

Rachel Cackett

There are a few points to make in answer to that. First, the duty to provide appropriate staffing is clear that the staff need to be competent and qualified. That is the way in which the bill attempts to deal with the issue of skills mix.

The nursing tools as they stand will not give a skills mix. They will give a number for the average workload. That will give a baseline, and professional judgment will then be applied to work out what the staffing should look like. Going back to a point that was made earlier, I note that, because of the way that the common staffing method is written, it focuses on a number for the average workload based on a certain set of assumptions such as bed occupancy, which may be well off the current situation for the NHS in Scotland. It does not deal with risk, and that is the big bit that is missing in the bill, for us, along with the other things that I set out earlier.

On the risk management process, we can have a number and a skills mix, but if there is a sudden outbreak of flu that affects both the staff group and the acuity of the patients who are coming in, we need to be able to adjust that and do on-going risk assessment. Only part of this is about an evidence-based number. We need that for workforce planning and to get the finance right, but we need to have professional judgment in place, with the support for that, in order to consistently, every day, adjust that according to patient need, whether that is in the community or in the acute sector.

Alex Cole-Hamilton

Is there sufficient provision for that in the bill?

Rachel Cackett

No. It needs to be added. I know that the Government is looking at work to do that. We will not see what that looks like for a while, but discussions are going on, and we have put forward proposals on how it could look. That would address many of our members’ concerns. It is fine to set a number and get the budget right for the establishment—that is an important process and it needs to be based on the best available evidence, which is why we need the tools—but there is also a need to be able to deal with risk in real time.

Dr Chung

Like all issues, this tends to get more complex the more we look at it. It is just one of those things. That’s life. Using an average to plan capacity is a fool’s errand because, by the law of averages, there will not be enough half of the time. There are certain ways to plan. The perfectionist would say that we need to plan to have enough reserve to cope with 95 per cent. That is probably not far off, and maybe 85 per cent is the minimum. However, using the average will cause problems because it is not going to work. People will be unhappy half of the time and will lose engagement. There needs to be some modification around that.

Head count is too crude a measure in itself because of differences in skills mix. The time of day, day of the week and season of the year all create different pressures. Most tools and workforce planning appear to have been based on historic numbers of staff and how to divide them to put them where they need to be. We need to do some work on how many staff we need, and the Royal College of Emergency Medicine can certainly give some help on that.

On national benchmarks, we should ask what kind of health service model we are aiming for. In Australia there are not twice as many, but certainly 70 or 80 per cent more beds, more doctors and probably more nurses. We are at about the level of the United States. Compared with our European neighbours, our levels are lower than those of many countries. I have the figures here. I mentioned the issue to the committee last time I was here, and I have the figures to hand.

We could ask whether the tool will reflect the need for certain numbers of different staff on, say, a Monday evening, which is the busiest time in an emergency department, compared with the need at a less busy time, which might be a Saturday morning. Does a paediatric assessment area need a different number of staff in the middle of the bronchitis season? Every area has different peaks and troughs and different advantages to having different staff levels. A certain volume might be able to do stuff, or having more senior people who can move from one task to another might be more efficient, although they might appear to be more expensive.

As I have said, the position is complex. Thought is needed about how the tools can adapt to give more detail and reflect complexities, which might vary from area to area or according to the time of day, the day of the week or the season.

Unexpected pressures are another aspect. We have done a lot of work to create a very efficient system—by international measures, the NHS in the UK and in Scotland is very efficient—but an increasing body of thought, which is starting to be backed by evidence that is not just in healthcare but more to do with industrial processes, is that getting very efficient means becoming more fragile. That might be what we see when we are squeezed in periods when there are pressures on the system, as in winter.

When we do workforce planning, we must decide where the balance will lie. At the moment, it is very much about efficiency, but perhaps we need to think about our reserve and the level that we need to plan for. I say for the third time that using the average would be the wrong approach.

Professor McMahon

We must remember that such tools are run at best once a year, so they give a snapshot at a point in time. As Rachel Cackett said, they do not deal with the skills mix or the risk element, which we address day to day in a ward or a community setting. We often start a day by asking whether we are safe to start; there are huddles and discussions about patient and staff safety, and none of that should be taken away. The issue is how we plan that into a process that involves the tools; another issue is the frequency with which the tools are run. We will need to marry the day-to-day activity with an annual process, if that is the way that we decide to go.

Many submissions on the proposals support giving band 7s a supervisory role. That is an important conversation that we should have. It should not be the case that everything falls to them, but they have a key role to play in day-to-day staff and patient safety. They could also become experts in running the tools and educating and training others in the tools.

I stress that we look at risk day to day—and hour to hour in some departments—but it is a key element that needs to be built more rigorously into the overall process.

Dr Ross-Davie

We support the thoughts about risk and the use of averages. In maternity care, we have peaks—one is often nine months after Christmas—that we cannot necessarily plan for. As has been said clearly, basing the workforce on averages would mean that midwives were running short a lot of the time.

Midwifery workforce planning tools were some of the first such tools to be developed, to try to cope with the peaks and troughs that we see. The rest of the UK uses a workforce planning tool that is called Birthrate Plus but, in about 2010, it was felt that that was not appropriate in Scotland, because it did not take into account some of our remote and rural issues. People down south are trying to evolve that tool; they are looking at new models of care that involve continuity and have realised that the tool needs to develop to reflect the new ways of working.

As Rachel Cackett clearly said, we will need to continue to develop tools as services change so that they reflect new practice. We do not know yet what that will look like, because that model of care has never been applied at scale—it has been used only in small research projects and randomised controlled trials. The tools cannot replace day-to-day risk management.

David McArthur

I wholly support that view and I will pick up on the skills mix. We have 23 beds in an acute ward in the Balfour hospital in NHS Orkney, which can at any time accommodate acute surgery, acute medicine, renal, gynaecology, ear, nose and throat, and orthopaedics patients—and the list goes on.

We are very much in the business of being the specialist generalists. I fully support the approach, but we need to ensure that any skills mix package takes due cognisance of the fact that not only do we need to be able to provide those specialist generalist people, but also that we do not have the critical mass to call on. For example, when I was theatre manager of Glasgow royal infirmary, I could call on colleagues from the intensive treatment unit and any one of the 27 operating theatres that we had. We lack that critical mass in remote and rural areas.

For us, there is not only the question of assessing skills mix and managing that risk, but also the knock-on training element and training margin. Those margins should be increased as well.

Emma Harper

I welcome our second panel of witnesses.

Alex McMahon talked about not having another level of bureaucracy, as it would lead senior charge nurses to say, “No way—this will impact my clinical supervision abilities.” I support there being no more pieces of paper that simply reflect an additional workload.

The letter from Fiona McQueen, the chief nursing officer, includes information from NHS Lothian on the number of rosters and staff that have applied the tool, which suggests that it is pretty successful. Can you tell us about the success of applying the tool and what you have done in that respect? After all, training will be key to engaging the staff in taking on board something like the workforce tool.

Professor McMahon

As with any data, there are always more questions than there are perhaps answers. That information came from the CNO late last evening.

I have been in my post for only two years, but I am very fortunate in having a deputy director who is steeped in the tools and has been involved with them right from the very beginning. The deputy director is an expert and works with associate nurse directors, clinical nurse managers and charge nurses across the system. However, that does not negate the fact that more education and training need to be done.

During a recent internal audit of our own processes, we found that, although it feels like we use the tools—and use them well—we are not as good as we could be in the implementation of some of their outputs. Sometimes there is an issue with closing the circle. As I have said, it is about using and building on what we have.

Picking up on the SSTS issue, I think that my deputy director would say that the current system makes implementation clunky and cumbersome. She has to spend a lot of time working with others to try to get the data out of the system. We might want to use it more often, but many of the things that are in her way relate to infrastructure and having the time and expertise to be able to do that. That said, I welcome the Scottish Government’s commitment on the adviser posts; they will help her, and they will work with us to build up that awareness, education and training.

We are all in slightly different places. Some people might use the tools, but they might do so as a table-top exercise, or it might be that they sit outwith the reporting system in Ayrshire. When I saw the information that you mentioned, I thought that it raised more questions than we know the answers to at the moment.

Emma Harper

E-rostering was mentioned as something that could pick up the competence or skills required. Depending on who is on shift, you might need someone who is central-line trained, intravenous trained or catheter trained—the list goes on—and is able to give competent care wherever needed. After all, IVs are now delivered in the community, too. Is that part of the development process?

Professor McMahon

Absolutely. NHS Lothian has almost completely rolled out the electronic rostering system, but it has not been without its challenges. Bedding in a new system always creates challenges.

E-rostering allows us to see the acuity of the patients and the skills mix that is required for any particular shift, but it does not mean that you can always respond to that as effectively as you might want. However, it gives the charge nurse and others the ability to see on a day-to-day basis whether the staffing and skills mix meets patients’ needs at that point in time.

The bit that sits behind all that is called SafeCare. As we have said, there are different systems in use; NHS Lothian uses SafeCare, and it is proving to be successful, but not without challenges.

David Stewart

I thank the witnesses for their contributions. I am particularly interested in rural, remote and islands issues, so I will address my questions to Mr McArthur.

Your submission contains the stark conclusion that the philosophy behind the Islands (Scotland) Act 2018 is not fully reflected in the bill. Will you say a little more about that?

David McArthur

The 2018 act refers to having

“regard to the distinctive geographical ... and cultural characteristics”

of the islands, and I would ask whether that is wholly reflected in the bill. I think that a clear reference would be useful—that reflects the opinion of my IJB and council colleagues, too. It is a crucial element in our move to a new hospital, which you are probably aware of. The philosophy behind that is that we will roll out more and more to our community and use all the facilities that are out there, including Attend Anywhere and other video systems.

Our perspective is that the bill must give due recognition to the fact that some things will differ. We are asking not for allowances to be made but for that kind of recognition, so that we can test and adjust systems. For example, although our staffing tool might tell us to have X staffing for a given period, perhaps the figure should be X+1, because we do not have the same resilience.

David Stewart

The philosophy behind the 2018 act is about island proofing, so every piece of legislation needs to be conscious of the islands. Your submission says that the existing tool is not sufficient for use in small hospitals. Does that represent a lack of island proofing?

David McArthur

I am sorry—I meant small wards rather than small hospitals. The tool applies nationally across the country, and I wholly support the approach in the bill. However, for the remote and rural element, we need to look at something slightly different. The letter from the CNO that came out last night referred to areas of non-compliance, which are not just in the islands. I know that Shetland has been mentioned; we applied the tools only late last year, when I joined the staff in NHS Orkney. However, there is also non-compliance in remote rural areas such as the Borders. Some areas are taking the view that the tools do not really meet their needs or apply to them; I would counter that by pointing out that some of that arises from a lack of understanding and training. However, it is difficult to apply the concepts to very small units.

David Stewart

I do not want to be flippant, but I note the famous military quote that every plan collapses on first contact with the enemy. Are you suggesting that the plan is not sensitive enough to deal with rural and remote areas?

David McArthur

I think that the quote is that no plan survives first contact, but such tools can be made to work for remote and rural areas. As I have said, the tools are not at their perfect point, but we can make them work by giving people appropriate education and training. We have support from the Scottish Government—and I would ask that you bear it in mind that my submission predated the additional support that was made available. I am confident that we can make the tools work for us, but they need to be nuanced.

David Stewart

You made an interesting point about the tension between using a tool as a financial workforce predictor and using it as a safe staffing predictor. Will you say a little more about that?

David McArthur

I go back to risk and the skills mix. The way in which the tool was used did not produce the skills-mix sensitivity. As Alex McMahon has said, a tool is run once or twice a year, so the sensitivity is not built in for us to make day-to-day changes. We have huddles every morning; in some ways, that is probably easier for us, as it is about half a dozen people sitting round a table, saying whether we are safe. However, the situation is also challenging, because we do not have the critical mass of people to move about. The tool does not facilitate the piece of work that needs to be done on the skills mix and risk.

The Convener

Clearly we have not had time to cover every aspect of the bill in detail, but do the witnesses have any final brief comments on the financial memorandum, particularly the absence of funding for any additional staffing, and on whether there is adequate funding for full implementation of the tools as they exist across health boards? Finally, is there a risk of creating a perverse incentive, in that running the tools might demonstrate that you do not have adequate staffing and that the way to balance the tool might be to reduce the number of beds? Is that a live or real risk in this context?

Rachel Cackett

In our evidence to the Finance and Constitution Committee—I know that this committee is now considering the bill’s financial elements—we were critical of, as we read it, the assumption in the financial memorandum that the bill would not necessarily result in more staffing. Our members are certainly under extreme pressure. With the vacancy rate that we now hold, I think that the assumption that the new models of care that are arriving and the greater demand from the public will not result in any change in that rate seems an interesting place to start. After all, the bill is supposed to be about improving the safety and quality of service to people and, from our point of view, where that is delivered by nursing across health and social care.

I would be deeply surprised if that were to be the result of the bill. The submission that we received last night seemed to address some of that by talking about the need for any additional staffing to go into the annual uplifts and for that to be a discussion in the budget process. If that is where we are going with this, that would be helpful, but whether it will be sufficient for the boards to be able to do what they need to do, I do not yet know.

With regard to creating a perverse incentive, I guess that one of the things that we need to say—and which might not have been said clearly enough—is that nurses go into work to do a really good job. That is why they join the profession. It does not matter whether that person is a healthcare support worker or a director of nursing; their aim is to do a good job and to make sure that the safety and quality of the nursing care that is provided, wherever it is provided, are good.

I hope that the bill provides an important balance to the financial positions that boards are under—which brings us back to the governance discussions that we had around this table some time ago. That is crucial, but I certainly hope that things are not gamed in that way. From a nursing perspective, it is certainly not why nurses go into the profession.

Professor McMahon

We have not really touched on workforce planning. Although the numbers for student nurses and midwives have increased this year—and might increase next year, too—they will not be out for the next three or four years, so there will be an overlap with the legislation coming into effect. There are and will continue to be vacancies, particularly in areas such as where David McArthur comes from, where it is incredibly difficult to recruit staff. From that point of view, more of the same will not do it, so we need to look at the skills mix. That is not about denuding or putting down nursing—it is about how we grow a workforce that better meets the needs in different areas.

We often look to advanced nurse practitioners as a solution to many of those problems. However, sometimes when we do that we are actually robbing Peter to pay Paul, because we are taking them from one area and are not able to replace them. There are also areas of medicine that are difficult to recruit into, and sometimes the answer to that is nursing. From a workforce and skills-mix perspective, we need to look at the issue in the longer term. It should not distract us from the principles and aspirations around the bill, but it is a reality.

As for any unintended consequences, we are aware that there is a need for clarity in the process of escalation. If we have done everything that we can to ensure that things are safe from a staffing view, but we then have to consider putting two wards into one, that has to be supported. It is not that we are fudging things; it is just that nothing else is available to people. The focus must be on looking after patients and staff.

David McArthur

I entirely agree. If we look at beds as currency, the only variable that we have in Orkney—and this is reflected throughout the health service—is the availability of beds and the need to do things safely. We therefore have to be very careful. We have not hit that issue yet but, looking to the future, if we found that we did not have enough staff, would we need to close beds and start moving our patients to the mainland?

I am not saying that that is going to happen, and it sounds like scaremongering, but that is where the Islands (Scotland) Act 2018 and the idea of island proofing come in. We need to be able to attract students to the island. We have issues with affordable housing, transport infrastructure and broadband, and those things, especially communications, are important for young people coming out of training. I therefore agree whole-heartedly with Alex McMahon. I would point to the Islands (Scotland) Act 2018 and put a remote, rural spin on it.

Dr Chung

There is a fear that the tool might be used to justify what many perceive to be inadequate staffing levels. If the bill is to progress, it is important that we replace that fear with the hope that we will provide evidence-based engagement with professionals in order to plan and implement proper staffing and provide proper patient care across the entire health and social care network.

The Convener

That is a strong message on which to finish our meeting, and I thank all the witnesses for answering such a range of questions so succinctly.

We now move into private session.

The Presiding Officer (Ken Macintosh)

The next item of business is a stage 1 debate on motion S5M-15055, in the name of Jeane Freeman, on the Health and Care (Staffing) (Scotland) Bill.

The Cabinet Secretary for Health and Sport (Jeane Freeman)

The people of Scotland rightly expect safe, effective and person-centred healthcare. Ensuring that we all have continuing and improved access to the right care at the right time has been the guiding principle of our approach to health and social care services, but that is a significant and complex task.

In common with users of healthcare systems elsewhere in the world, we are living longer but not yet healthier lives. That brings the challenge of more complex health conditions to more of our citizens. In meeting the increasing demand on our services, it is essential that we act to make sure that our whole system of health and care has the capacity, focus and workforce to address the needs of our changing society.

I have set out my expectations for improved mental health services, improved access through the waiting times improvement plan, and continuing pace in the reform of our health and social care services, underpinned by improvements in primary care. However, those improvements can be secured only through the hard work and dedication of our health and care staff.

There is a compelling argument that having sufficient staff working in a psychologically safe environment is integral to good patient outcomes. That is why we need to put in place measures to ensure that, at all times, we have evidence-based safe levels of staff.

The Health and Care (Staffing) (Scotland) Bill is grounded in, and builds on, the excellent approach to workload planning that has been led by our nurses and midwives. The development of the staffing methodology and specialty-specific tools has been an innovative, evidence-based and—importantly—professional-led approach. The approach has led to the use of those tools in the Welsh legislation on safe staffing and in the development of workload tools that are used by NHS England. Recognising the value of such an approach, we made a manifesto commitment to secure it in legislation. This bill now goes further than that commitment, putting in place a framework to systematically identify the workload that is needed to improve outcomes and deliver high-quality care.

In developing the bill, we carried out two consultations and held 10 public events. My officials, my predecessor and I have worked with representatives of nurses, doctors, allied health professionals, health boards, local authorities, care service providers, professional bodies, trade unions and others to enable an approach that works in one part of our health and care system to spread across the whole system.

Throughout the process, we have worked hard to listen to ideas and views and to look at how we can make this work. I recognise that there can be competing interests, that our integration agenda is ambitious and that the approach that the bill encapsulates will require a significant cultural shift in our health and care organisations. We saw that reflected in the evidence that was taken by the Health and Sport Committee.

However, I believe that, throughout the process, it has also been clear that the bill is an opportunity. It is an opportunity to create a rigorous, evidence-based approach to decision making on staffing that takes account of patients’ and service users’ health and care needs. It will identify the workload that is required to meet those needs, assist the exercise of professional judgment and promote a safe environment.

The bill is an opportunity to ensure that the professional judgment of our staff who deliver health and social care is heard. It is also an opportunity to create transparency around staffing decisions—which will aid Healthcare Improvement Scotland and the Care Inspectorate in supporting improvement across our health and care services—and to give staff and patients the confidence that, at all times, decisions are made on staffing that support safe, effective and person-centred care.

Healthcare Improvement Scotland and the Care Inspectorate will play crucial roles in implementation of that approach. Both will be responsible for facilitating the development of staffing tools and methodologies in collaboration with the services that will use them. In doing so, they will identify, develop and implement continuous quality improvement rather than focus solely on compliance with minimum standards.

The matter of our giving HIS a specific function in the bill has been raised. I will lodge an amendment at stage 2 to make the role of HIS absolutely clear.

The bill puts in place a methodology and procedures to ensure that health boards and care service providers have appropriate staffing. The bill is not about nurses alone, nor is it about setting a minimum number of staff to deliver any particular service. It is founded on the innovative approach that our nurses and midwives have developed, which starts with a robust, evidence-based assessment of the care that the people using our services need and want. Only when we understand that can we be sure that we understand the workload we need, the skills that are necessary to meet it and what staff need to have in place to deliver that care to a high quality.

The voice of the professional must be heard as part of this process. The increased transparency that the bill requires will make obvious the workload that exists and the corresponding skills that are required to deliver high-quality care. That will assure health boards, HIS, the Care Inspectorate, health and care staff, professional bodies, trade unions, this Parliament, this cabinet secretary and, importantly, the public that we have the right staff with the right skills in place. I believe that that is exactly the right thing to do.

Monica Lennon (Central Scotland) (Lab)

I agree that it is important that staff be listened to. Recent figures reveal that, in the past three years, there have been 1 million days of stress-related absence in the national health service, not counting those in social care. What is the Scottish Government doing outwith the bill to address that situation and to make sure that the concerns that staff have now about safety and pressure in the workplace are being addressed in real time?

Jeane Freeman

I am grateful to Ms Lennon for raising the matter. I know that she has raised it before. Like her, I take stress-related absences—indeed, any absences in our health service—very seriously. Our boards are putting in place a number of measures relating to mental health support for staff. We need to recognise that not all stress arises from workplace issues; sometimes, it arises from personal or domestic issues that nonetheless impacts on an individual’s performance and enjoyment of their work. The measures that we are beginning to put in place across our health boards do not distinguish but simply ask how we can help staff. I am happy to give Ms Lennon more detail on that matter and to discuss further with her, if she wishes, how we might improve on that.

It is clear from my conversations with representatives of staff groups that the bill could be improved by placing a more explicit duty on health boards to ensure that there are clear mechanisms for day-to-day assessment of staff needs and clear routes for the professional voice to be heard in those assessments. I am pleased to confirm that I will lodge an amendment at stage 2 to include that duty.

The effective application of the legislation will also support the wider workforce planning processes. Providing that evidence-based information on workload at a local and service level will enhance the planning of workforce needs locally, regionally and nationally.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Will the cabinet secretary give way?

Jeane Freeman

If the member does not mind, I will come back to him.

I know that each and every profession contributes to the delivery of positive outcomes for service users, which is why the legislation applies across all staff who deliver health and social care services. The general duty to ensure that there is appropriate staffing and the overarching principles will span all staff groups, not just nursing and midwifery. That will support multidisciplinary planning and service delivery and will mitigate the risk of unintentionally diverting resources to nursing and midwifery at the expense of any other staff group.

Alex Cole-Hamilton

Although the bill is worthy, it is nothing without adequate workforce planning underpinning it. We cannot legislate to make staffing safer and expect that just to happen. Can the cabinet secretary confirm that the move towards the methodologies and toolkits that are described in the bill will not see staff moved out of non-acute services to ensure that acute services are staffed safely?

Jeane Freeman

Yes, I can confirm that. As I am in the middle of explaining, as a legislative framework around a methodology, the bill applies to all staff groups across health and social care. To do anything other would, indeed, be to risk unintended consequences such as moving resource to one area at the expense of another.

Workforce planning is absolutely critical, but good workforce planning is based on sound evidence. As I will come on to say later, the bill is an important component of producing that sound evidence at a local and service level and will feed into the workforce planning of health boards and integration joint boards and, through them, into national workforce planning.

In taking a broader approach, the bill achieves the legislative coherence across the health and social care landscape that is demanded by integrated health and social care and that rests on the important recognition of value across all staff groups. As I have just said, it is another lever to join up services, support innovation and redesign and deliver sustainable high-quality care. In taking that broader approach, the bill will not be restrictive or prescriptive but will be appropriate and enabling for the social care sector. In particular, it will support the direction of travel that is set out in the co-produced part 2 of the national health and social care workforce plan. Any new tools and methodologies will be developed specifically for and by the professionals who will use them. The current suite of tools will not remain unchanged but will continue to be reviewed and renewed to effectively support multidisciplinary approaches to the delivery of care. Where appropriate, we are taking a multidisciplinary approach, and I will look to amend the bill at stage 2 to make that clear.

The Government is committed to ensuring that Scotland has the appropriate staffing for the delivery of safe, high-quality care. The bill will contribute to that aim by placing a duty on health boards and care services to ensure that appropriate numbers of suitably trained staff are in place to provide safe and high-quality care. It requires health boards to apply evidence-based and professional-led approaches to nursing and midwifery workforce planning. It promotes a continuing culture of transparency and engagement with staff, and it facilitates the future development of that approach across health and care settings, with tools being developed through partnership and taking account of the size and complexity of the services.

I believe that we can all agree that the framework that the bill offers to put in place the right number of staff in the right place at the right time and with the right skills is the right thing to do.

So far, I have addressed many of the issues that were raised by the Health and Sport Committee in its stage 1 report. I welcome the committee’s support for the general principles of the bill and I thank the committee members for their full consideration of the complexity of the approach, especially in the integrated landscape. In particular, I thank them for the view—which I assuredly share—that the professional voice must be heard at all levels.

I acknowledge that we are not all in agreement on every part of the bill, and I have welcomed the challenges and the constructive discussion that we have had so far. I commit to continuing to work with those who deliver health and social care, and with members on the committee and in the Parliament, to do all that we can to have the right statutory basis for the provision of appropriate staffing in health and care service settings

This is an ambitious piece of legislation that will provide a critical contribution to driving the necessary and important cultural and organisational change that we need to meet the challenges to and expectations of health and social care in Scotland—all with the paramount objective of providing improved, safe, effective and person-centred service and outcomes for people in Scotland.

I move,

That the Parliament agrees to the general principles of the Health and Care (Staffing) (Scotland) Bill.

The Presiding Officer

I call Lewis Macdonald to speak on behalf of the Health and Sport Committee, as its convener.

Lewis Macdonald (North East Scotland) (Lab)

As convener of the Health and Sport Committee, I am pleased to report on stage 1 of the Health and Care (Staffing) (Scotland) Bill. Our report, which was agreed unanimously across all the parties, makes a number of what we hope are constructive suggestions to enhance the bill.

I thank all those who assisted the committee with our scrutiny, those who responded to our call for views and to our survey, those who gave oral evidence, and the many staff who participated in our plenary session at the NHS anniversary event in Glasgow in the summer. Many front-line health and care staff gave up time from their very busy schedules to engage with the committee. I record our thanks not only for their invaluable input, but—of course—for the very important work that they do.

The cabinet secretary responded to our report in writing yesterday. Her offer to keep the dialogue going is welcome, as are the commitments that she has made this afternoon on areas in which the Government intends to lodge amendments at stage 2. However, the response also indicated that the Government has yet to be persuaded on a number of areas and about a number of specific points that the committee made. However, persuasion is, of course, what committees are all about, so I will lay out some of the areas on which I hope that ministers will think again.

As the cabinet secretary said, the bill seeks to ensure more integrated workload and staff planning across health and social care. The question for the committee has been whether it will ensure that there are appropriate staffing levels to deliver high-quality care in health and social care settings. Part 1 establishes the guiding principles for staffing, which apply to the bill as a whole. The committee agrees that those principles should work to ensure equity and parity across all staff groups. Most of the evidence supported those guiding principles; few would argue with the aim of providing safe and high-quality services.

As has been said, the bill will replace existing methods for assessing the adequacy of staffing levels. Professional judgment is part of the current staffing methodology, but it is not yet part of the bill: the committee heard pleas that the input of professional judgment should be much more prominent in the bill. Workplace leaders are best placed to take decisions about staffing requirements on the day, and whether there are enough suitably qualified staff on duty to meet patient needs.

Alex Cole-Hamilton

Does Lewis Macdonald agree that the professional voice is important not only when it comes to safe staffing, and that the best ideas can stem from the ward and be disseminated outwards as best practice for the country?

Lewis Macdonald

I absolutely agree with that. It is fair to say that the committee’s approach to the bill and other things has been to seek the broadest possible input from professional groups. I hope that NHS management and the Government will take that approach, as we proceed with the bill. The committee agreed that the bill should reflect existing practice and give a prominent role to professional judgment.

We also concluded that the judgment of allied health professionals and social care workers, as well as that of nurses and midwives, should be considered. To achieve equity and parity across services, all staff groups that are involved in delivering care should be involved.

The Government’s policy memorandum says that

“high quality care requires the right people, in the right place, with the right skills at the right time to ensure the best health and care outcomes for service users and people experiencing care.”

We can all agree with that. Our report suggests that the bill should clarify the role of professional judgment, and strengthen the commitment to staff wellbeing in the provision of safe and high-quality services. I was therefore pleased to hear the cabinet secretary commit a few moments ago to lodging an amendment on that at stage 2. Many of our witnesses from the caring professions asked that those principles be made clear in the bill. In the committee’s view, such changes would not weaken the bill; they would strengthen it.

Although the Government believes that the bill will support the desirable outcome of increased integration of health and social care services by providing a consistent framework for staff planning across the sectors, we heard considerable evidence about concerns that the bill could inadvertently have the opposite effect. Some witnesses suggested that the bill risks separating healthcare from social care and of not including significant groups of staff. That could imply that different expectations will continue to apply to different parts of a system that, in other contexts, the Government—as we all do—says should be seen as a whole.

We also heard concerns that the bill is very much process focused, which is at odds with the priority of the integration agenda to provide better outcomes for patients. We were keen to ensure that the bill’s focus on process would not be at the expense of outcomes, so we stated our view that that should be in the general principles of the bill. The Government’s response, accompanying the cabinet secretary’s letter, said that including an outcomes focus in the general principles of the bill

“would represent unnecessary duplication.”

I was surprised to read that. I am sure that ministers will think further about it before stage 2.

Jeane Freeman also mentioned Healthcare Improvement Scotland, which is undertaking work, as part of its excellence-in-care approach, on provision of information on expected staffing levels and actual staffing levels by ward. That is now happening in some places: the committee agrees that it is a good idea to roll out that initiative nationwide. Again, we encourage the minister and the Government to consider whether that could be done.

Part 2 of the bill will apply the general principles to national health service staffing in particular. Health boards are already required to do workforce planning and to ensure provision of high quality care. To support those duties, a suite of 12 workforce planning tools has been developed over the period since 2004. The committee decided that we should survey health boards to find out about use of existing tools, and we discovered that their use is patchy. Boards have been subject to a mandatory requirement from the Scottish Government to use the tools since 2013, but that has clearly failed to have the desired effect.

The bill would replace a “mandatory requirement” with a “statutory requirement”: we asked the Government how that change would deliver compliance in the future. The cabinet secretary’s written response this week noted that

“a number of measures are already in place to monitor Health Boards’ compliance with their legal duties”,

and it suggests that no change to monitoring will therefore be required. It is difficult to square that with the current inconsistency in compliance, so it would be useful to hear more about how a statutory duty will differ in practice from a mandatory requirement.

Although the workforce planning tools have been in use for up to 14 years, the committee heard concerns about levels of training. Witnesses were keen that staff be given dedicated time to attend training, rather than being expected merely to acquire expertise as part of continuous professional development. Again, it would be useful to know whether the Government agrees with that.

Part 3 of the bill relates to staffing in care services. The policy memorandum notes that the purpose of including care services in the bill is to allow the sector to build on and strengthen existing statutory mechanisms, in order that it can create a cohesive framework across all health and social care settings. The bill provides a power for the Care Inspectorate to develop workforce planning tools for application in care settings for which a need is identified and agreed.

Much of the evidence that we heard on part 3 of the bill questioned whether the bill is actually necessary in social care services, which are provided in environments that are very different from hospital settings. We recognise that that must be factored in to development of any new tools, but we concluded that the care sector should not be treated differently from the NHS. In both, we should expect enough suitably qualified staff to be present to deliver high-quality services. Patients and their families will expect no less.

The Government made it clear to the committee that the staffing methodologies in the bill are not linked directly to national workforce planning, although the “National health and social care workforce plan” is mentioned throughout, and has been mentioned by the cabinet secretary this afternoon. Witnesses were concerned about how the outcomes of the bill could be achieved without a firmer link to wider national workforce planning. If there is insufficient skilled labour available nationally to fill vacancies, health boards and care services may be unable to meet the requirements of the bill. We need to know, and they need to know, what would follow, if that were to be the case.

One concern that was raised was the possible skewing of resources away from social care at a time when the planning tools exist only in the NHS. Staff and other resources might be concentrated in the acute sector in order to meet the statutory requirements in part 2 of the bill, while tools are still under development for social care under part 3.

A similar issue was raised by allied health professionals, who were concerned that directors of finance could be put in an invidious position when it comes to deciding priorities: funding going to the nursing side, for example, at the expense of AHPs and multidisciplinary working. We need to ensure that those fears are not realised by ensuring that the essential role of AHPs is reflected in the legislation, particularly for the early years before part 3 of the bill comes fully into effect. An amendment at stage 2, as was suggested by the cabinet secretary today, would be widely welcomed.

The committee unanimously supports the general principles of the bill, while seeking clarification on the issues that we have raised and a positive response to the concerns that we highlight in our report. Many of the witnesses to our stage 1 inquiry were looking for reassurance that the Government is listening to their concerns.

I hope that the cabinet secretary will reflect further on our report, this debate and the concerns that were raised by witnesses, so that the bill can be made better and stronger at stage 2.

Miles Briggs (Lothian) (Con)

I thank all the organisations that provided extremely useful briefings ahead of today’s debate. The most valuable resource of any organisation is its people, and our Scottish NHS in no different. There are more than 162,000 NHS employees across Scotland, who work tirelessly day in and day out to deliver and support our health and social care services for the people of our country.

The question that they are asking is this: what will this bill do to help to support those people working in Scotland’s health and social care services? I and the members of the Health and Sport Committee have been asking questions about that from day 1. I hope that the committee’s report has been useful to the Government in trying to answer such questions—specifically, questions on the unintended consequences of the bill. For help to answer those, we need look no further than the Royal College of Nursing Scotland’s member survey on staffing.

When RCN Scotland carried out a survey of its members last year, it received 3,000 responses from care and support workers across Scotland, who delivered some very concerning responses. Fifty-one per cent of respondents said that their last shift was not staffed to the level planned and 53 per cent said that care was compromised as a result of that; 54 per cent reported that they did not have enough time to provide the level of care that they would have liked to; 47 per cent said that they felt demoralised; and 61 per cent worked extra time—on average, 46 minutes—at the end of their shift. More than a third of respondents said that, because of a lack of time, they had to leave necessary care unprovided.

The most important evidence from the survey was in the statements from NHS staff and in their world view on the current workforce crisis in Scotland. I have picked out three points. NHS professionals said:

“The only reason we had enough staff today is because we had bank staff.”

“We had enough staff for the patients. But in mental health we have attack respond situations and, no, for most of the night we wouldn't have been able to assist staff if a colleague had been under threat of physical violence.”

“When you’re short staffed, the workload is the same, you have to get round everything. You are constantly chasing your tail; you’re anxious; you’re rushed. Having the right staff changes that.”

All of us in the chamber know and recognise that our NHS staff go the extra mile every day of the week to deliver the care that we value so much, but what tools can they have at their disposal when the level of risk to the safety and care of staff and patients in the environment and wards in which they work is unsafe? I want to outline some of the areas in which I think the bill needs to be improved.

In relation to process, the Law Society of Scotland stated that the stage 1 guiding principles were too general. It fears that there could be scope for subjective judgment, leading to the inevitable juggling and compromising of competing priorities. Some stakeholders were concerned that the bill could undermine care by focusing on process and narrowly defined settings, rather than outcomes. Certainly, what we heard at committee was that we need to make sure that our health service is outcome focused.

In relation to accountability, the bill places a general duty on health boards and care service providers to ensure that there is appropriate staffing and states that health boards, commissioners and providers will be accountable. A key concern that was raised with the committee was the need for greater clarity in the bill on where accountability will sit. If no one is named as an accountable officer, there is a risk that responsibility will be felt by the people who are running the tools, who will become exposed if adverse events arise. It is still not completely clear to many members how that will feed in higher up the NHS management structure.

Professional judgment is a key part of the bill that we should seek to improve, and we will be seeking to improve on that. Witnesses called for the input of professional judgment to be more prominent in the bill, and I welcome some of what the cabinet secretary said. It was felt that professionals should be involved in the process and that views should be taken at a local level, below executive and senior management level, as the committee’s convener outlined. Although professional judgment is part of the new common staffing method, it is not included in the bill.

The Royal College of Nursing believes that it is essential that the bill enables the empowerment of nurses, and I agree with that. As the cabinet secretary has outlined, the bill presents opportunities, and I hope that we can realise those opportunities in order to empower our NHS staff and the staff who work in health and social care settings.

The bill aims to ensure that there are adequate staffing levels where health and social care are delivered. As Alex Cole-Hamilton said, the bill could provide a much-needed focus on workforce planning. The social care setting is a key area and the committee would like more clarity on how the bill will impact that area and how the tools will be developed and delivered.

Ahead of today’s debate, I noted the concerns and reservations that were expressed by the Convention of Scottish Local Authorities, the Scottish Council for Voluntary Organisations and other organisations about the bill’s proposals in respect of social care. Social care accounts for more than a quarter of the third sector’s turnover, and 34 per cent of voluntary organisations in Scotland are involved in delivering social care-related activities. The provisions of the bill that relate to social care and the development and introduction of standardised workforce tools to the sector, which currently has no single governance structure and is made up of hundreds of diverse organisations, clearly represents a major challenge. I hope that the Scottish Government will work on that to build confidence and the support of the sector.

I welcome much of the Scottish Government’s response, which the cabinet secretary outlined in her letter yesterday to the Health and Sport Committee. The “unintended consequences” of the bill have been outlined by many organisations ahead of the stage 1 debate and I hope that they will be addressed as the bill progresses through Parliament.

In conclusion, the Scottish Conservatives recognise that our health and social care workforce faces a number of key challenges. With or without legislation, unless we urgently resolve the staff shortages across NHS Scotland, safe staffing levels will remain a dream instead of a reality.

In her response to the committee, the cabinet secretary stated:

“This Bill is about workload planning not workforce planning.”

However, for those people who work in our NHS and social care services, those are the same thing. We need to see progress in addressing the staffing challenges in our health and social care services.

Karen Hedge, the national director of Scottish Care, told the committee that the bill will not

“magically create nurses”.

Therefore, we need to be clear that working to deliver a full staffing complement must be the priority of the Scottish Government and the Scottish Parliament.

The Scottish Conservatives support the general principles of the Health and Care (Staffing) (Scotland) Bill and we will work cross party to amend the bill as it progresses through Parliament.

Monica Lennon (Central Scotland) (Lab)

I am pleased to open for Scottish Labour in the debate and I thank the Health and Sport Committee for its carefully considered report. From listening to the convener, Lewis Macdonald, it is clear that the committee went to great lengths to gather evidence and to scrutinise the Health and Care (Staffing) (Scotland) Bill. The committee’s recommendations reflect that rich body of evidence and I agree that the Scottish Government would do well to remain open to persuasion, because there is clearly room for improvement. Some of the committee’s recommendations were reinforced by the many stakeholder briefings that we have gratefully received ahead of the debate.

This has been a milestone year for health. This summer, the Parliament and the country came together to mark the NHS at 70: we had a lot to celebrate. Our health service has saved and transformed countless lives—everyone in the chamber will have a close, personal affinity to the NHS.

Moving forward, the integration of health and social care has the potential to be transformative, but we must get to grips with the underlying challenges in order to reduce the levels of ill health and health inequalities that persist. Under this Government, we have not yet seen enough progress on that front. The cabinet secretary said that we are living longer, but we are not yet living healthier lives and that matters because all of us have a right to health and want to live good, healthy lives.

That is a matter of urgency also because our health and social care services are struggling to cope. In her response to the committee’s stage 1 report, the cabinet secretary says that the Scottish Government

“understands the pressure staff are facing”.

We know that the cabinet secretary inherited the bill and I am not convinced that, given all the pressures facing the NHS, this is the bill that she would have wanted. However, as she is sticking with it, Scottish Labour will play its part in improving and strengthening it. We are eager to work with the cabinet secretary and her team in the widest terms possible.

However, as we debate the Health and Care (Staffing) (Scotland) Bill today, our focus has to remain on outcomes and the difference that the bill could make to the health and wellbeing of our constituents and our loved ones. Scotland’s health and social care workforce is working tirelessly to provide the very best of care; it cannot work any harder and it is far from easy.

Miles Briggs spoke about nursing and we know that, according to the RCN, there are times when staff are not able to meet the needs of their patients because of staffing shortages, because of issues with the skills mix of teams and because of ever-increasing demands on services. In the past few weeks, I have seen that at first hand, because my mum has spent far too much time in hospital. None of us is detached from that; it is very real and it is happening now.

It must concern the cabinet secretary that Audit Scotland warns that the NHS in Scotland is not financially sustainable and that its performance has continued to decline. Today, we have had another extremely serious section 22 report on NHS Tayside. We have a health board that is facing perpetual financial crisis, and the buck stops with the Scottish Government.

Jeane Freeman

In order to ensure that we have the absolutely correct context, I am sure that Ms Lennon will agree that the section 22 order on NHS Tayside refers to the previous financial year and that, by the Auditor General for Scotland’s own acknowledgement, the Audit Scotland report did not take account—because it could not at that point—of the medium-term financial framework that I published. In order to ensure that we are getting an accurate picture of the current state of play, perhaps we just need to add those extra bits of context.

Monica Lennon

I am glad that the cabinet secretary has put on the record that information about her medium-term framework, but there is no denying the fact that, again, we have a very serious report from the Auditor General. I am sure that the Public Audit and Post-legislative Scrutiny Committee will pick it up and scrutinise it in due course.

Currently, there are enough job vacancies in the NHS to fill staff numbers for two Scottish hospitals; the British Medical Association says that the true number of consultant vacancies is double that of the official figures from the Information Services Division; Scottish Care points to a shocking 32 per cent vacancy rate for nurses in social care; and the Royal College of Physicians of Edinburgh says that unless staffing gaps are resolved,

“safe staffing levels will remain a dream rather than a reality.”

What will the bill do to address the staffing crisis? The cabinet secretary is clear that the bill is about workload planning, not workforce planning. However, to put it simply, there must be enough staff available to deal with the high workload that NHS staff are experiencing. The Scottish Government has plenty of work under way—for example, there is the work that the Minister for Public Health, Sport and Wellbeing is focusing on in relation to alcohol and drugs—all of which is important because, to go back to my earlier remarks, the issue is prevention; and we have not seen enough preventive action to reduce the pressure on the NHS.

We hope that the bill is part of a new, wider, radical approach to health and social care workforce planning that is person centred. From Unison to the BMA, the message is loud and clear that just putting existing duties into statute will not in itself change anything. The committee stage 1 report highlights several areas of concern about the bill and the RCN highlights ongoing monitoring and the escalation of risks. If safe staffing levels fall below requirements, there must be a quick, clear and effective route to escalation of staffing levels; and those tools must work in real time so that any health professional who finds themselves on an understaffed ward can alert someone to the problem.

We have had dozens of briefings about the bill. For example, the Royal College of Physicians and the Royal College of Speech and Language Therapists highlight the importance of workforce planning supporting the new multidisciplinary models of care. The bill aims to give parity between health and social care by also setting out staffing duties in care services. However, we have heard from COSLA, the Coalition of Care and Support Providers and SCVO that they are all concerned that the bill is unsuitable for the care sector and could undermine integration. We have to be alive to those concerns, and I know that my colleague Alex Rowley will want to say more about that.

In conclusion, Scottish Labour welcomes all efforts to improve safe staffing and we support the general principals of the bill. However, the bill will not fix the health and social care workforce crisis by itself. NHS staff are facing burnout. I was grateful to the cabinet secretary for taking my intervention on that point; I know that she takes such matters very seriously. The social care sector needs to be overhauled because the conditions for many social care staff are simply not good enough.

Scottish Labour believes that health and social care should be focused on achieving the best outcomes—

The Deputy Presiding Officer (Christine Grahame)

No, when you say, “In conclusion”, that means that you are concluding, not saying, “In conclusion, here comes another chapter”.

Monica Lennon

In conclusion, we must focus on the outcomes and we will work with the Government and others on amendments to secure that.

The Deputy Presiding Officer

I know that trick—I have used it myself.

Alison Johnstone (Lothian) (Green)

The Greens support the general principles of the bill and we will vote accordingly at decision time. However, concerns have been raised by many groups, including the Royal College of Nursing, allied health professionals and COSLA, and we encourage the Scottish Government to give those concerns sufficient and careful consideration.

It is not surprising that there is a well-established link between safe staffing levels and the delivery of good-quality care. A study by Professor Anne Marie Rafferty found that both patients and nurses in hospitals with favourable patient to nurse ratios had consistently better outcomes than those in hospitals with less favourable staffing ratios: patients in the hospitals with the highest patient to nurse ratios had 26 per cent higher mortality, while the nurses in those hospitals were approximately twice as likely to be dissatisfied with their jobs, show high burn-out levels, and report low or deteriorating quality of care on their wards and hospitals.

That being the case, it is a concern that Scotland continues to experience serious challenges in the recruitment of health and social care staff. Audit Scotland reports that vacancy rates for nursing and midwifery staff rose from 2.7 per cent in 2013-14 to 4.5 per cent in the past year. Currently, 30 per cent of nursing, midwifery and allied health professional vacancies remain open for three months or more, which is an increase of a quarter on the previous year.

Although there has been a national increase in nursing and midwifery staff over the past four years, staff numbers in the year to March 2018 have fallen in some health board areas. Of the nearly 20,000 nursing and midwifery staff who responded to the 2017 iMatter staff experience survey, barely a quarter said that there were enough staff to allow them to do their jobs properly, with less than half saying that they were able to meet all the conflicting demands on their time.

The provisions in the bill may well play a role in ensuring that our health and social care services are appropriately staffed. The Greens welcome the guiding principles for health and care staffing: respecting the dignity and rights of care service users; ensuring the wellbeing of staff; and being open with staff and service users about decisions relating to staffing.

The duty of health boards to ensure that staffing is appropriate for the health, wellbeing and safety of patients is also welcome. However, in her closing speech, will the cabinet secretary elaborate on whether it is the Government’s intention to further extend that duty to cover the wellbeing and safety of staff? Below adequate staffing levels have an impact on staff as well as on patients—I know that we all agree on that.

The staff survey presented in the report “Safe and Effective Staffing: Nursing Against the Odds” paints a disturbing picture of the physical and mental toll on staff when staff levels are below what is needed. An accident and emergency nurse who was surveyed said that because of low staffing levels and lack of resources, they felt, “exhausted, stressed and dehydrated”. That is consistent with the 51 per cent of Scots nursing and midwifery staff surveyed who reported feeling “exhausted and negative”.

I ask the cabinet secretary to consider whether the terms “health”, “wellbeing” and “safety” could be more explicitly defined. I draw her attention to NHS Orkney’s submission to the committee at stage 1, which said:

“The perception of what is safe and what has been agreed may differ and we need to ensure that this doesn’t in turn become an area of tension between staff and managers.”

The duty on health boards to report on how they have ensured proper staffing and how they have followed the common staffing method, and trained and consulted staff is welcome. However, I ask whether that could be made more specific, to give boards additional requirements to report when the duty has not been met. Individual board reports would be welcome, but accountability might be improved if the Scottish Government had a responsibility to collate a report that covered all boards and lay that before Parliament. That would allow for transparency and consistency of reporting and therefore for better public scrutiny.

With others, the Royal College of Nursing seeks a wide range of amendments to the bill, and I look forward to working with all those organisations as we move to stage 2. I encourage the Scottish Government to continue to engage with those bodies on the issues that they raise. I will focus on enabling senior nurses to discharge their management duties fully by being non-case holding and on adding provision that will allow nursing staff to undertake continuing professional development.

The inclusion of the care sector is a crucial issue on which there is not yet a clear consensus. I note that COSLA released the strongly worded statement that the

“Scottish Government has yet to demonstrate the Bill will improve outcomes for people in receipt of care and for social care staff.”

It is important to note that the bill’s provisions will play only a small role in ensuring appropriate levels of staffing. Many of the briefings that we have received have raised issues about the scope of the bill. If it does nothing to address the supply and availability of trained staff, boards and social care providers alike will find it difficult to meet the duties that are placed on them.

The Royal College of Nursing has questioned

“whether this legislation can be implemented fully, and in a way which will improve the quality of care that patients receive, without significant investment—particularly in the workforce—and without recognition of the reality of current workforce pressures, and with the likely future increased demand on services.”

I ask the cabinet secretary to outline what investment is being made in the health and social care workforce and where the bill sits in a broader strategy to address the supply of staff. I also ask her to consider the RCN’s suggestion of a duty on the Government to ensure that there is a sufficient supply of nursing staff to meet current and future demand.

Alex Cole-Hamilton (Edinburgh Western) (LD)

It is my privilege to offer the Liberal Democrats’ support for the bill’s general principles. I tread in the footsteps of my friend and colleague Kirsty Williams who, as a Liberal Democrat Assembly member, stewarded a similar piece of legislation through the National Assembly for Wales some years ago.

Whenever we talk about staffing, it is important to reflect on how much we rely on our NHS staff, our staff who work in social care in the community and our allied health professionals. Particularly at this time of year, they deserve the thanks of a grateful Parliament and a grateful nation.

When any committee is charged with looking at a bill, it is incumbent on it to ask the question that is top of considerations: is this needed? When I asked exactly that question of Sarah Atherton, who works for the Royal College of Nursing, I was struck by what she relayed of a conversation that she had had with a senior nurse on a psychiatric ward. Sarah Atherton had asked the nurse whether the ward was safely staffed the night before, and the nurse said that there were two answers to that question—the ward had enough staff to treat its patients but, because the system has to operate on an attack response basis, the ward was not safely staffed, as it would not have had enough staff if a crisis had occurred. That epitomises why the bill is needed.

For years, we have ignored the anxieties and expertise of staff on the ground. It is a fair criticism of all parties that have been in government in this country that financial targets have often taken priority over safety. We probably all know of examples that mirror the experience of the psychiatric ward that I referred to.

The bill offers us the opportunity not only to fix the numbers but, I hope, to ensure that we get the right balance of skills and experience in every staff team in every care setting. Getting the right skills mix and the right number of staff has an empirical link to safer outcomes. We need more in the bill to link methodologies, tools and practice to outcomes and draw the golden thread right through.

That is why I was grateful to hear the cabinet secretary’s remarks about strengthening the professional voice in the bill. We must listen to and act on the suggestions of those who are at the coalface. As I said in my intervention, innovation comes from the grass roots most of the time, and best practice is germinated in wards.

We need the staff voice, but we also need clear accountability—we have always regarded that as a slight gap in the bill. That accountability needs to be held at several levels, because when it is everybody’s job to make sure that something happens, it suddenly becomes nobody’s job to make sure that it happens. I endorse what Alison Johnstone said about the idea that senior charge nurses should be non-case holding, that they should have that strategic overview and that, as clinical leaders, they should not be included in the head count of a safe staffing cohort. Every care setting—whether that setting is acute, non acute or in the community—should be encouraged to catalogue and display their staffing levels, so that they can benchmark success and aspire to greater things. Having a staff member who is unencumbered by operational issues is vital to ensure that accountability.

We need to trust the expertise of our staff. We are blessed with some incredibly gifted staff. It is vital to recognise that correlation between staff wellbeing and patient safety. I fear that there is still scant detail in the bill as to how we will ensure that staff in cohorts within any care setting are themselves supported psychologically with regard to stress and stress management. There is a direct causal link to what we are doing through the on-going discussion in the chamber and in the Parliament’s committees about whistleblowing to make sure that we support our staff, including supporting them to raise concerns.

When we talk about staff, we are not talking only about nurses. Initially, there was a myopic view that the bill was about only nursing. I thank nurses for their strengths and for the fact that they have driven the agenda, but they recognise that the bill has to encompass social care staff and allied health professionals. Each of those professions provides a vital and important part of every patient’s care pathway. In particular, we talk about delayed discharge from hospital and the lack of social care provision. That care pathway can interrupt flow throughout the health service. Therefore, it is important that those professions that do not have methodologies that are as established as those of the nursing profession are afforded the space by the bill to grow those methodologies in their own toolkit, in order to interconnect with the methodologies of their multidisciplinary colleagues.

I made this point to the cabinet secretary in an intervention: as with the Child Poverty (Scotland) Bill, we cannot just legislate and make something happen. We can legislate for aspiration, but we must back that up with culture change and empirical policy change on the ground. We have to recognise that the bill will not end nursing shortages or the social care staffing crisis in our communities. Those problems will not be solved by the bill, but it is an absolutely vital part of the jigsaw for ensuring that we have sustainable, safe and attractive professions for people to enter and it is part of that drive to increase provision within those sectors.

Nor should attempts to deliver safe staffing in one sector come at the expense of another sector. The other point that I made in my intervention on the cabinet secretary was about ensuring that we do not just have a gold-plated service in a gold-plated safe-staffing culture in acute settings at the expense of community and non-acute settings. Those settings are equally vital in patient pathways. The bill is needed and it will enjoy the support of the Liberal Democrats tonight.

The Deputy Presiding Officer

We move to the open debate. We will have speeches of six minutes as usual, but there is a little time in hand for interventions, which I would encourage.

Emma Harper (South Scotland) (SNP)

We are here in the chamber to debate and, I hope, agree to the general principles of the Health and Care (Staffing) (Scotland) Bill, as introduced by the Government. As deputy convener of the Health and Sport Committee, I agree with the general principles of the bill and I support the Government’s motion today.

In June 2016, I was a new MSP for the South Scotland region when the First Minister announced, at the Royal College of Nursing Scotland congress in Glasgow, the Scottish Government’s intention to enshrine safe staffing in law. I was a new MSP and I had been providing direct patient care as a clinical nurse educator for NHS Dumfries and Galloway just a month before the First Minister’s announcement. I enjoyed my work as a nurse educator and as a perioperative nurse. My 30 years of clinical experience in America, England and Scotland helped inform my scrutiny of the proposed bill at stage 1. Along with colleagues, I acknowledge the amazing work of the health professionals who provide care across health and social care settings 24 hours a day, seven days a week. The people who are professionals are truly amazing.

Since the bill’s introduction in May, the committee has taken evidence from a range of stakeholders, including the Royal College of Nursing, allied health professionals, the British Medical Association and the Convention of Scottish Local Authorities, and I thank them for their input.

There are, of course, issues with the bill that need to be addressed, and I would like to bring members’ attention to a number of them. I highlight the fact that the purpose of the bill is to set out the principles for ensuring that there will be appropriate staffing to deliver high-quality care to patients, clients and service users across a complex care system. The intention is to enable an evidence-based approach to be taken so that safe, efficient and person-centred care can be provided.

It is important to make it clear that although the bill does not focus on national workforce planning, it includes a focus on the development and application of workforce planning tools. The fact that some of those tools have not yet been developed was raised when representatives of the allied health professionals gave evidence to committee. One of my former colleagues in NHS Dumfries and Galloway made it clear to me that the bill must cover the whole multidisciplinary team. As the integration of health and social care progresses, we must make sure that all specialties that provide care, whether in primary care, acute care, the home environment or the community, are covered by the bill.

I am interested in the development of the workforce planning tools. We have heard that current common staffing methodology uses a triangulation approach and includes workforce tools on professional judgment, as well as specific tools that are aimed at areas such as the operating room or neonatal intensive care units. There is a difference between the delivery of care in rural south-west Scotland at Galloway community hospital and the delivery of care in the city centres of Glasgow and Edinburgh, where trauma services and the delivery of different kinds of specialty acute care are essential.

It was interesting to hear in evidence that the development of new tools might take up to 10 years, but I note from the financial memorandum that two further tools are in development and that more will be developed within five years. I would like to ask the Scottish Government what work is being done to speed up the process of developing appropriate tools—especially with allied health professionals—across multidisciplinary teams. As a former nurse who comes from a family of nurses, I know that it can take a long time to implement change in the national health service.

The fact that we are pursuing an integrated health and social care system means that we are having to take on board the fact that many different types of professionals support health and social care needs across Scotland. I welcome the briefings from the RCN, the Association of Anaesthetists, the Royal College of Physicians of Edinburgh and others. Yesterday, when I spoke to a senior RCN representative, I discussed the RCN’s proposal to allow senior charge nurses not to have their own case load, which would allow them to focus on supporting the co-ordination of care, the management of staff and other time-consuming duties for which they are responsible. Alison Johnstone made similar comments, which I welcome. The importance of that approach applies in many healthcare situations.

I support that ask in principle, but I recognise that it is inevitable that there will be circumstances in which senior charge nurses will provide direct patient care—for example, in the operating theatre. I support the principle of charge nurses having no direct case load, and I would like the Scottish Government to explore options for that as we move forward with the bill.

I have been in an operating room in which everything was going smoothly until the patient’s aorta was punctured during a straightforward minimal invasive surgery procedure. That is when the professional judgment of staff and their ability to react immediately to a fast-changing situation to save a life are paramount. Flexibility must be built into the legislation to allow immediate staffing judgments to be made. I welcome the fact that the bill takes into account the professional judgment tool that was described to the committee in written and face-to-face evidence from experts.

I welcome the bill, and I put on record my thanks to all those who attended the committee’s evidence sessions on it and, indeed, all who have been involved in the process. I thank the Scottish Government and ask it to look at some of the issues that have been highlighted, including that of the workload of senior charge nurses. I look forward to participating in the progress of the bill.

Annie Wells (Glasgow) (Con)

The importance of NHS staff goes without saying. At some point, most of us will have had our lives changed for the better thanks to the personal dedication of those providing high-quality care. We understand the immense pressure on staff, who work under extremely difficult conditions, sometimes to the detriment of their own health. That makes the bill all the more important.

Although the Scottish Conservatives support the bill in principle, we have concerns, which are shared by a number of organisations. As my colleague Miles Briggs said, we will look to strengthen the bill at stage 2 with amendments that focus on giving professionals a strong voice and making sure that decision-making data is robust and up to date.

I want to focus on the value that the bill places on the importance of staff wellbeing. It is clear that staff are being pushed to their limits and that staffing shortages are taking their toll. As we heard from Monica Lennon, in the past three years the number of NHS staff absences due to staff suffering stress has increased by nearly 18 per cent, resulting in more than 1 million working days being lost. In Glasgow, the increase in absences is even higher, at nearly 25 per cent. It is clear that staff are struggling to cope. I am pleased that the importance of staff wellbeing is a guiding principle of the bill and hope that the bill will, in some way, provide the basis on which we can improve the situation.

However, it is worth mentioning that the majority of witnesses raised concerns that the bill is being introduced at a time when the workforce is under pressure from a general recruitment and retention problem. For example, statistics show that hospitals are short of 2,400 nurses and midwives, and that NHS boards are in need of 750 more doctors.

Keith Brown (Clackmannanshire and Dunblane) (SNP)

I am sure that Annie Wells has read the Health and Sport Committee’s report and will realise that witnesses are concerned about the current and future effects of Brexit, and the role that Brexit plays in the recruitment issues that they face. Does she agree with them?

Annie Wells

The recruitment and retention problem has not happened overnight; concerns have been raised for quite a while. We have to look at the problem in the longer term, because it is not just in the past two years that we have needed 750 doctors.

In response to the bill, the Royal College of Nursing stated that it was important not to

“tie the hands of boards and put a duty on them to provide appropriate staffing if the supply, which is held by the Scottish Government, does not come through.”—[Official Report, Health and Sport Committee, 11 September 2018; c 28.]

In the third sector, the Scottish Council for Voluntary Organisations has expressed concern that, given that 34 per cent of voluntary organisations in Scotland are involved in social-care related activities, additional duties placed on organisations cannot be considered in isolation of the resource provided. Linked to that, greater clarity must be given on where accountability lies—a concern that was noted by the Chartered Society of Physiotherapy.

A general duty has been placed on health boards and care service providers to ensure appropriate staffing, but if no one is named as an accountable officer, senior charge nurses and team leaders will be left exposed should an adverse event arise as a result of shortages in staffing. That view was shared by those in the care sector.

Unison Scotland highlighted the precarious situation of accountability, given the fragmentation of delivery of care services. Who will be responsible for safe staffing levels and reporting on them in the third sector? That will be especially difficult to answer when care provision is commissioned from a third party.

Although we support the principles of the bill, the Scottish Conservatives believe that professional judgment plays an important role. I was pleased to hear the cabinet secretary address that point. As the Health and Sport Committee has commented, it is believed that professionals have to be involved in the process, with views taken at local level to take account of the day-to-day dynamic staffing of health settings. Existing tools must be made to accommodate absence levels, differing staff and skill mixes and the needs of patients. The Royal College of Nursing stated that

“Without nurses of appropriate seniority ... exercising their professional judgement”

each day, safe staffing levels will not be reached, and the SCVO has said that, given its importance in delivering social care, it, too, must be consulted on legislative proposals.

As well as the need for staffing models that allow decisions to be made on the ground, there is a need for decisions to be based on the most accurate data. While they are in among the moving feast of real-time decision making on wards and across community teams, healthcare professionals need to be confident that they can trust data as being reliable and up to date. Only with that data can they make strategic decisions that enable safe high-quality care and services.

To finish, I again express my support for the bill’s principles. Ultimately, the bill puts an existing but enhanced workforce planning method on a statutory footing with principles that are “unobjectionable”. We all want the highest-quality care being given to patients consistently across health boards, with the wellbeing of staff always in mind. At stage 2, the Scottish Conservatives will work on a cross-party basis to lodge amendments that seek to strengthen the bill, and I hope that some of the comments that are made today will be taken on board.

Keith Brown (Clackmannanshire and Dunblane) (SNP)

The aim of the bill is to be an enabler of

“high quality care and improved outcomes for service users”

of the health and care services by helping to ensure appropriate staffing for their care. It is important to state that again, because although we started off with what I thought was a very balanced and fair account of the committee’s work from the convener, Lewis Macdonald, the debate has since gone into a number of related areas—and quite legitimately so. It is therefore important that we bear in mind the bill’s purpose.

For me, this is the latest development of the efforts that we have made—and by “we”, I mean everybody—to try to drive high standards in the health and social care sectors and to make best practice the standard to be achieved across the board. The bill’s policy memorandum states:

“The aim of the Bill is to provide a statutory basis for the provision of appropriate staffing in health and care service settings, thereby enabling safe and high quality care and improved outcomes for service users. Provision of high quality care requires the right people, in the right place, with the right skills at the right time to ensure the best health and care outcomes for service users and people experiencing care.”

Although we have in general heard support for the bill’s general principles, I have found it a little odd to hear some witnesses, when asked whether they supported the bill, say that they did not and that they did not see how it could be improved. I was particularly concerned to hear that view from people whose focus was, quite rightly, on the needs of the care sector. To my mind, the bill presents an opportunity to have the right staffing, so it strengthens the arguments of those who want staffing in the care sector to be improved. I am not sure on what basis people would not want to support that. They could, by all means, seek to improve it, but they should at least support the aim.

The aim is that, at a strategic level, staffing in our NHS and associated social care and care home provision will be planned to maximise the effectiveness of available resources, to deliver for clients and to ensure that their experience of health and care is always the paramount consideration. The systems that we put in place must help to ensure that practice in health and care in Scotland is the best that it can be and that the patient experience is positive.

With regard to recruitment, it is evident that there are pressures because of Brexit and that they have been building for some time. I cannot evidence this from what we heard, but I think that those pressures are more acute in the care sector than in the health sector. However, they are evident in both, and they are building day on day, week on week, month on month. Brexit is a substantial issue as far as recruitment is concerned; indeed, paragraph 206 on page 34 of the committee’s report says:

“Brexit uncertainties mean that it is challenging to meet the existing requirements and staffing establishments currently set by health boards and social care providers.”

The bill is intended to deliver a number of things. For example, at its heart is the promotion of safety in the health and care sector—and by “safety”, I mean safety for clients and the health and care staff. The mechanism for delivering that is the creation of a statutory duty with regard to the staffing levels to be applied to territorial and special health boards, but that will require appropriate staff planning and risk management. In the recent round of consultation on the bill, the committee asked stakeholders for their views on how the bill could best achieve that aim. In its submission, my own local health board, NHS Forth Valley, stated:

“The positive outcomes for patients and staff must be at the heart of the decision making process. The workforce tools will run consistently with health and social care boards having to act upon the results.”

NHS Forth Valley also proposed the need for a formal reporting structure to be part of any processes, and was among a number of consultees who stressed the need to clearly identify who is responsible for undertaking that. I have some sympathy with that. The one thing that I would say, however, is that, in relation to talk of outcomes, sanctions and targets, many of us stand up in this chamber and talk about the problem with bureaucracy in the health service, but there is a real danger that we could end up creating new forms of bureaucracy through what is being suggested. It is important that, as we go through the different stages of the bill, we bear that in mind.

Clackmannanshire and Stirling health and social care partnership also commented on the general principles of the bill, stating that it welcomed

“the guiding principle of a rigorous transparent approach to decision making about staffing in health and social care.”

That is what we should be aiming for. If, at the end of that process, people can point to deficiencies or ways in which the situation can be improved, the bill will have achieved its purpose. For example, Clackmannanshire and Stirling health and social care partnership also said that

“There are concerns regarding the additional expectations on planning and commissioning departments”,

but that should be a good thing. Additional expectations on commissioning departments should help to address some of the perceived issues in relation to staffing in those departments.

The concerns that have been raised are entirely fair to raise at this stage of our consideration of the bill, but I welcome the general acceptance in the many consultation responses that were submitted that the principle and direction of travel of the bill are right. In our detailed consideration of the issues, we must take due cognisance of those views.

The points that were raised in the briefing on the bill that was sent to MSPs by the Royal College of Nursing were valuable, and, given the central part that the RCN’s members will play in dealing with the legislation when it is enacted, I think that it is certainly worth considering the points that it makes. It suggested six tests—before Labour MSPs get too excited, they have nothing to do with Brexit. First, the RCN is looking for positive outcomes and for staff to be put at the heart of decision making. The bill seeks to do that; it tries to ensure that professional judgment—some have called it objective judgment—can be brought into play. We are looking for the professionals to make judgments. That is a vital part of what we are doing, and I believe that the cabinet secretary gave us assurances today and when she appeared before the committee that suggest that that will happen.

I welcome the general principles of the bill and I welcome some of the points that have been made by members. It strikes me that we have a good basis on which to take the bill forward, not least because of the assurances that the cabinet secretary has given in her response and because she has said that she intends to listen to what is being said as we move through the process. With that kind of co-operation and constructive engagement, we can get the right bill at the end. I am happy to support the bill.

Alex Rowley (Mid Scotland and Fife) (Lab)

I begin by congratulating and thanking Lewis Macdonald and the Health and Sport Committee for producing this detailed report, which will be useful as we move into stage 2.

I know that the Cabinet Secretary for Health and Sport, Jeane Freeman, issued a response to the report yesterday evening. I have not had a chance to read it properly yet, but I think that it, too, will be useful.

I take Keith Brown’s point about focusing on the purpose of the bill, which he says is about appropriate and safe staffing. However, it is a bit like the emperor’s new clothes: if we do not have the staff, it will be difficult to ensure that staffing is appropriate and safe. The situation reminds me a bit of what sometimes happens with legislation. For example, we can legislate to give people a treatment guarantee, but we know that having a treatment guarantee does not guarantee people treatment when they need it. That brings into question the very purpose of legislation. We need to ask that question in terms of this bill and, perhaps, some other bills that are making their way through Parliament.

I know that the Royal College of Physicians raised a few issues about the bill. It says that legislation alone will not fill the rota gaps and vacancies in the workforce. The recognition in paragraph 97 of the policy memorandum that there are currently

“significant challenges in recruitment in both health and care service settings”

needs to be addressed.

Jeane Freeman

I am sure that Mr Rowley will acknowledge that I have never, at any point, said that the bill will automatically by itself produce the numbers of professionals across health and social care that we need. What I have said is that it is an important additional tool to help us workforce plan as well as we can. Getting the information via the application of this legislation will allow us to ensure that we have robust evidence that will enable us to identify how exactly we should continue to increase the numbers of people we have in training in nursing, medicine and allied health professions. It is one of the tools that we have; it is not a magic bullet that will automatically fix the problem.

Alex Rowley

I think that Monica Lennon acknowledged that when she opened for Labour and said that although we support the bill in principle, we need to do quite a lot of work on it. Some serious questions have been raised by the third sector, by COSLA and by others that need to be addressed going into stage 2.

Nevertheless, I am sure that as parliamentarians we all know that our constituents are asking what we are doing about staff shortages to ensure that people are guaranteed the healthcare that they need, when they need it. For example, in Fife, there are seven GP practices that are registered as being in difficulty or in high-risk situations. NHS Fife says that it cannot recruit the general practitioners. There are practices that are having to close their lists and 16 practices are full. That is not just about accessing GP services, as the cabinet secretary knows; it is about accessing a whole range of community health services as part of a holistic health service. Those services are struggling right now; my constituents are asking me, “What are you doing about that?” and I ask myself, “Where does this legislation provide that support?”

We need to be honest with the public and we need to start addressing the big issues in the health service. COSLA makes a point about social care. By the way, COSLA has produced a two-page briefing that is highly critical of the bill, and we need to address that. COSLA states that the bill is poorly timed, as

“The social care workforce is ... experiencing challenges in terms of recruitment and retention.”

We need to look at social care. Monica Lennon spoke earlier about 70 years of the NHS. In 2020, the NHS will be looking very different from when it was established back in the late 1940s and I do not think that we have asked what a modern-day NHS in Scotland looks like. Part of the answer is, of course, about social care and that is why we would not necessarily sign up to what COSLA has to say about social care being separate. However, the fact is that social care is provided through local authorities and health boards; it is provided through the third sector, and that is why we have so many third sector organisations coming in here with concerns; but it is also provided through the private sector and there are major problems in recruiting for the social care sector because of lack of job security, poor pay, and poor terms and conditions.

What would a national health service look like in 2020? A national health service is not just built around hospital buildings; it is also about caring for people in their own homes. Why should the social care part of the workforce be on the minimum wage or the living wage when other parts of the workforce get more decent pay, have decent terms and conditions and have job security? What does the workforce of the NHS look like moving into 2020? Should all those social carers be part of the health service or are we going to allow the modern health service to be split, with a private sector provision that pays lower wages and has poorer terms and conditions?

We need to invest in our workforce and we need to ask some fundamental questions about what that workforce looks like. Labour will work with the cabinet secretary on this, but we think that we need to be bolder and more radical in considering what a modern health service in Scotland should look like.

Sandra White (Glasgow Kelvin) (SNP)

I thank my fellow members of the Health and Sport Committee, the witnesses who gave evidence and, of course, the clerks for their guidance to me and others and the hard work that they put in to produce the stage 1 report.

The bill’s remit is intended to cover staff planning in health and social care services, with the aim that staffing in both sectors is organised and planned to ensure that providers have appropriate staff in place to enable them to deliver safe and high-quality care. The safety of staff is of course paramount, too.

Alex Cole-Hamilton and Emma Harper said that, at the beginning of the process, the RCN was seen to be the driver of the bill, but it was quickly recognised that the bill is not just about acute services; it is about all health and care providers, which all have a part to play in furthering the integration of health and social care in particular, which is very important. I thank members for raising that issue and I thank the RCN for recognising that the bill does not just cover acute care.

I will concentrate on the integration of health and social care. I note the concerns of COSLA and I picked up what Alex Rowley said about them. However, the COSLA briefing says:

“The Bill is a potential threat to the integration of health and social care.”

It is rather sad that COSLA used that as a headline. I am sure that the committee, the cabinet secretary and the minister will look at that issue.

The integration of health and social care is paramount if we are to get the healthcare that we want, which every other member has spoken about. The bill is not just about acute care, and we should not be focusing on acute care; we need to look at integration. Alex Cole-Hamilton and the cabinet secretary said that we need to see a culture change. That point was raised by witnesses at the committee, too. This debate about the bill could be the starting point for people to listen to the argument that there should be cultural change within the various providers.

I turn to the evidence that we received. I thank the cabinet secretary and the Scottish Government for their responses to the committee. In paragraph 194 of our report, we state:

“We can see the attractions and advantages from treating all parts of the delivery of health and care in the same manner. We can see no rationale to ultimately treat this sector any different from the NHS, both are providing services to the public and the public should be assured they and their relatives are being looked after adequately with care, professionalism and dignity.”

The Scottish Government’s response to that states:

“It is our intention that the development of any new tool and methodology would be carried out in a similar manner to the way in which the existing tools were developed in health. A clinical reference group is established prior to the development of any new tool. All Health Boards are invited to contribute to the clinical reference group.”

I hope that that allays some of the fears that COSLA raised about other allied health professionals.

Integration is one of the great things that we can move forward with the bill. I know that the bill is a work in progress, but that is one of the areas that we should cover. I am perhaps being a little selfish in mentioning that, because I am the convener of the cross-party group on older people, age and ageing. There has been lots of interest from our members and other organisations in the integration of health and social care, particularly the provision and staffing of community care and care homes.

In fact, the cross-party group will be hearing from Brian Slater, who is head of partnership support in the health and social care integration directorate of the Scottish Government, at our meeting next week. I am sure that members of the group will be interested to hear what was said in this debate and to hear what Mr Slater has to say about the progress that is being made in integration of health and social care. I know that members will want to find out the implications of the bill and what levels of staffing will be, particularly given that we are dealing with an ageing population, with the pressure that that puts on the system. It is important that we look at that issue.

As I said, I understand that the bill is still at stage 1 and so is very much a work in progress. I look forward to seeing how it progresses through Parliament. I hope that when we get to stage 3 we will all agree with it and that COSLA and others will say that integration is really important and that the bill is not just about acute services but about all provision of health and social care.

Edward Mountain (Highlands and Islands) (Con)

I join my colleagues in supporting the Health and Care (Staffing) (Scotland) Bill in principle. I thank the committee at the outset for its in-depth report; I know how much work goes into such reports.

I would like to reiterate a word of caution for the Government that has already been raised this afternoon. To paraphrase the Royal College of Physicians of Edinburgh, we cannot legislate staff into existence. Making new laws can identify work frameworks and targets for staffing. However, frankly, we need action on recruitment to make the bill meaningful.

Let us look at another bill in relation to this issue: the Patient Rights (Scotland) Act 2011, which sets down a 12-week treatment time guarantee in law. That is workload planning, or it should have been when it was established. The problem is that, for many of my constituents in the Highlands, that law is broken on a weekly if not a daily basis. I mention in passing that we found out this week that two constituents have waited 72 weeks for chronic pain treatment in NHS Highland. Frankly, that is not acceptable.

The Scottish Government must accept that legislation alone will not reduce waiting times or resolve the recruitment crisis that is affecting our NHS. The bill in itself will not ensure greater delivery of service.

The bill can make a difference, but only if it is used as part of a wider range of measures to tackle workforce planning across our NHS. If it is to make the difference that it needs to, it needs to be strengthened significantly. We have already heard from my colleague Miles Briggs that the Scottish Conservatives will lodge amendments to give professionals a strong voice in the staffing process, based on workloads, and to ensure that the decision-making process data is robust and up to date—that is critical. Why do those amendments matter? On this side of the chamber, we believe that hard-working doctors and nurses know better than anyone when it comes to safe staffing levels to deliver the service that is required. I believe that their voices have often been ignored in the past.

I will give an example of where workforce planning is failing. In August 2017, more than 50 doctors and consultants signed a letter to the board of NHS Highland stating that

“the crisis in radiology staffing, especially acute in the Highlands, has reached an unprecedented level.”

You would think that that would be a clear warning about workforce planning and delivery. A year on and the situation in NHS Highland is far worse; there is no substantive interventional radiologist in post. That means that patients need to travel to NHS Tayside and NHS Grampian which, frankly, is unacceptable. It is a failure of workload planning that has come about because of poor workforce planning.

Keith Brown

Edward Mountain commended the work of the committee and the witnesses who gave evidence to it. Brexit was one of the issues that were raised by witnesses, particularly—if I recall correctly—in relation to radiographers. Does he concede the point that Brexit is having a detrimental effect on recruitment in the NHS, especially in rural areas of Scotland?

Edward Mountain

It is very easy to find something that is going on at the moment to blame for the problem, but the problem goes back a lot longer than that—it goes back to poor workforce planning, probably up to 10 years ago. If the First Minister were here in the chamber, I would ask her about that as well.

There has not been enough planning either by the Government or—in the case of my constituency and region—by NHS Highland to resolve the problem. From speaking privately to healthcare professionals, which I do almost weekly, I know that they have come to the same conclusion as me.

I hope that the bill will address the need to have safe staffing levels to deliver the services that are required. It is a question of which we put first. I believe that doctors and nurses know what is needed to provide the services that are required. The problem is that they are often constrained by those in administration, who believe that they know better. We know that, when staffing levels are low, pressure on existing staff increases, which leads to unrealistic expectations that the same service can be delivered with reduced numbers—it cannot. That often leads to unrealistic demands that become overbearing and unachievable, causing staff to feel bullied and undervalued, with the result that they leave.

It has become clear that that leads to a problem with recruiting. For example, the orthodontic department in NHS Highland has not functioned for two years, and the oral and maxillofacial surgery department has not functioned for three. Those are definitely needed and the situation has been identified as a problem, but there is no one to man them. That creates a perfect storm, and I am worried that the bill in its current form will not address that. That is why it needs to be amended, with strong input from those on the ground and not just those in offices.

The bill also needs a provision to protect staff welfare. Not to do so would be a failure. Certainly with my colleague Miles Briggs and other Conservative colleagues—and I hope with members across the chamber—I will be looking to find a suitable amendment that takes that into account.

I support the bill, knowing that it does not go far enough at this stage; with amendments, it can perhaps do that. At the moment, it is not sufficiently aspirational or inspirational, but there is a good opportunity with proper amendments, which should come from across the chamber, to make it both of those things.

David Torrance (Kirkcaldy) (SNP)

I thank everyone who has contributed to the process—in particular, the committee clerks for all their hard work, and the healthcare professionals and representatives who gave up their valuable time to participate in our evidence sessions.

NHS Scotland’s workforce is growing, and the demands on our health and social care sector have never been greater. We need to be flexible in relation to those demands. We have seen a 48.3 per cent increase in consultants, an increase of 5.7 per cent in training places for nurses and midwives, with a further 2,600 training places to be created by 2021, and overall workforce growth of 9.5 per cent since 2006. Currently, staffing levels are set locally by health providers. The bill does not seek to change that by prescribing minimum staffing levels or fixed ratios; rather, it will continue to support local decisions, which is a flexible approach that gives the ability to redesign and innovate across disciplinary and multi-agency settings.

The issue of staffing levels is not new. The Royal College of Nursing states in its staffing guidance that the question

“What is the optimal level and mix of nursing staff required to deliver quality care as cost-effectively as possible?”

is a perennial one. In order to forecast the workforce that is required to meet future care needs, workforce planning needs to consider the changing balance between types of care and the anticipated different models of delivery. The bill will provide a consistent process with validated workload and workforce planning tools, which will support our healthcare workers as they continue to provide world-class care to patients.

It is widely recognised that, although it has since 2013 been mandatory for health boards to utilise the tools and methodology, there are inconsistencies in how tools are applied and the extent to which the existing methodology is utilised to make informed decisions about staffing requirements. Enshrining the process in law will help to ensure a more consistent approach to staffing across all service areas, which in turn will contribute to better outcomes for patients and provide public assurance that the right numbers of staff are in place to deliver person-centred care.

I welcome the comments of Ann Gow of Healthcare Improvement Scotland, who stated during one of the committee’s evidence sessions:

“It really should not matter where in the social sector people are looked after: they should be entitled to good care and high-quality outcomes, and to an assurance that the right levels of staff will be in place to look after them.”—[Official Report, Health and Sport Committee, 25 September 2018; c 3.]

It is vital that we have the right number of staff, with the right knowledge, in the right place and at the right time to provide safe and effective care.

I thank Helen Wright, who is NHS Fife’s executive director of nursing, for taking the time to share her thoughts about the bill directly with me. The most important people in the process are those who work in our health and social care services. It is imperative, if we are to deliver successfully a robust and sustainable statutory framework, that staffing methods are profession led and developed in collaboration with the sector.

The safety of patient care must be paramount, so we have to focus on delivering high-quality care through a systematic and responsive approach to determining staffing levels. An effective and stable staff team is the backbone of high-quality care. An objective evidence-based statutory process that builds on the current model, integrated with professional human judgment, will better equip services with tools that are flexible and can take into account the varying needs of the sector, without becoming an obstacle to either integration or innovation, thereby restricting the opportunity for varying standards of care to exist across different services, or in different areas of a service.

A number of members have mentioned the difficulties of recruitment in the health and social care sector, so I consider it important that I highlight today the current threat to the health and social care sectors from Brexit. At this point in time, it is anything but certain that there will be business as usual beyond next March, because the invaluable contribution of European Union workers all across Scotland is being jeopardised by the ill-conceived and short-sighted immigration policies of our United Kingdom Tory Government. Figures show that there are 26,000 people from the European Union working in health, social care and public administration in Scotland.

Miles Briggs

As David Torrance knows, the committee also heard concerns about the policy of new recruits potentially being sent into child social care instead of adult social care, and the impact on workforce planning that that has had. We have also heard that Nicola Sturgeon’s spectacular error of judgment in cutting the number of training places has had an impact on our health service. Would he like to highlight those points as well?

David Torrance

Brexit is having that impact right now as we see, for example, a UK transplant surgeon who has performed more than 1,000 operations leaving and citing Brexit as the problem. When we see the number of specialist doctors dropping to an eight-year low because of Brexit, we know that we have real problems right now and that there will be more problems in the future.

We have already seen that Brexit is having an impact on recruitment and retention of EU nationals and, as the Brexit shambles continues, it will have very real and far-reaching implications for health and social care. The contribution of EU nationals to our workforce must not be underestimated. Our health and social care sectors will both face a considerable shortfall if there is restriction of EU migration. Changes to the residence rights of EU nationals will also have a significant impact on the sustainability of our health and social care sectors. We have long relied on EU nationals across all parts of our healthcare system: as the demands on our services increase, we will continue to need them in the future. Brexit is a very real threat to the health and social care sector that cannot be ignored, as uncertainty hangs over adult social care, which puts more stress on services.

In conclusion, I thank everyone who has been involved in the committee’s work. I fully support the principles of the bill.

Anas Sarwar (Glasgow) (Lab)

I start, as the cabinet secretary and many other members have done, by thanking all our NHS and social care staff who continue to go above and beyond in increasingly difficult circumstances. I offer a sincere “Thank you” to each and every one of them.

However, our thanks are not enough: those staff need more. Staff representatives have made it clear that they are under extreme pressure. They feel that there are too few of them to deliver the care that they would like to give their patients, and they fear that patient care is being compromised because of a lack of staff. In short, they feel overworked, undervalued and underresourced.

At the same time, while public appreciation for the NHS and its staff is rightly high, it is also the public’s number 1 concern. I want to say at the outset that I accept that the problems are not of Jeane Freeman’s making, although she must accept that her Government has been in power for 11 years and that she now has responsibility for fixing the problems.

We support the principles of the bill, but I believe that it needs major surgery. I also sincerely believe that the bill would have been a very different bill indeed if the cabinet secretary had designed it from the outset. She has said that the bill is about workload rather than about workforce planning, but I think that the two are interconnected. If we do not have adequate levels of staff, that puts an increased workload on existing staff, so I would like the bill to be more than a public relations exercise. I am sure that that aspiration is shared by the cabinet secretary. We have to accept that the bill will provide not one extra member of staff and will not, in itself, solve the workforce crisis.

I know that the cabinet secretary does not like the term “workforce crisis”, but we have to accept reality. In our NHS, we are short of 3,500 nurses and midwives, 540 allied health professionals and almost 400 consultants. NHS staff lose 1 million days a year to stress, and we spend £100 million a year on medical locums and £25 million a year on private nursing agencies. We have to be honest: if that is not a crisis, what is?

What we need, alongside the bill, is a credible and deliverable workforce plan, sufficient training places and a recruitment and retention strategy. We need to look at how we can bring the vacancy rate down, how we can reduce pressure on existing NHS and social care staff, and how we can help to boost their morale.

We also have to accept a fundamental issue and problem. We cannot magic up the people—3,500 nurses and midwives, 540 AHPs, 393 consultants and more. In the acute sector alone, we are short of almost 5,000 people. If we were to add the social care sector, that would be many more thousands, on top. We will not find the 5,000-plus people whom we need right now, so we have to have an honest and serious conversation about what we can deliver, how we can deliver it and how we will find the right skills mix to deliver an NHS that is fit for purpose.

I want to give some practical suggestions about additions that I would like to see to the bill, but first let me emphasise the point that Alec Rowley made. This must not become like the Patient Rights (Scotland) Act 2011, which is all great in principle and we all agree on it, but which in reality does not fit the word “guarantee”. That is why the bill requires some serious amendment.

The first amendment would concern safe wards. I note that the word “safe” is no longer in the title or the bill. Who decides whether a ward is safe and what happens when a ward is not safe? When a ward is not safe, the ward manager has a decision to make. They can employ a member of staff straight away, but they more often than not turn to agencies, which could lead to increasing agency fees. They can shut the ward—I doubt that that is what we would want—or they can close beds.

If a ward is judged to be safe, but is in a difficult situation, or it is judged to be unsafe but continues to operate, that poses severe risks for existing NHS staff. If we look at the example of the Bawa-Garba case, we see that staff are under increased pressure and are worried about the implications of an adverse incident and about who will be held responsible. We need to define what is “safe” and we need to build into the bill protections for staff.

We also need more robust data. What data will be made available through the bill to allow greater scrutiny by Parliament and greater public scrutiny? I have already mentioned agency staff. I think that the bill should go further: we should look to cap agency fees. I am not talking about the overall amount that a health board can spend on agency staff, because that would have unintended consequences, but about how much an agency can charge for a shift or a board can pay for a shift.

Let me give you some examples. We have heard in the Public Audit and Post-legislative Scrutiny Committee that there are examples of medical consultants being paid up to £400,000 in a single year, and we have heard from Audit Scotland that, on average, a full-time equivalent agency nurse costs three times what an NHS nurse costs. If we connect those costs, that means we can have one agency nurse for three NHS nurses and one agency consultant for four NHS consultants. The cabinet secretary should look seriously at an amendment to the bill that would cap how much an agency can charge and how much a health board can pay for a shift.

We also need to go further on scrutiny and sanctions. I do not mean financial sanctions; I am talking about accountability. What sanctions can be imposed on health boards? It should be written into the bill that health boards must publish when they fail to meet their obligations, and there should be a commitment that, if the intentions of the bill are not met, the cabinet secretary—whoever it is at the time—should come to Parliament to give a detailed statement about why the intentions have not been met and what steps are being taken to address that.

Finally, greater co-ordination with social care is needed. I accept COSLA’s concern about social care being separate: if we are truly to talk about integration we cannot isolate social care. We have to be careful not to go back to thinking about just doctors, nurses and midwives, but to recognise that we need a multidisciplinary team—especially if we cannot find adequate numbers of doctors and nurses. How do we build into the bill greater protection for the multidisciplinary team?

All those matters need explanation by the next time the bill comes to Parliament. I hope that this will be an opportunity for the cabinet secretary to work with other political parties to deliver a truly transformative bill, so that we have an NHS that is fit for purpose for the future.

Alex Neil (Airdrie and Shotts) (SNP)

It is good that we have general agreement across the chamber on the principles of the bill, and that there is wide recognition that the role of the bill is not to solve the problem entirely but, as the cabinet secretary rightly said, to be an additional tool in the box to help solve the problem of planning and implementing a workforce development plan.

There has been a lot of talk about acute services and the care sector, but I emphasise that the bill also covers the primary sector. That is important because 90 percent of all patient contact with the health service is through the primary care sector and because we are, quite rightly, planning—and I think that there is cross-party support for this—to shift the emphasis from acute care to preventative care, primary care and social care in the community.

Some of the ideas come from Alaska, which I mention not only because it is the source of a number of the current reforms that we are implementing in the primary care sector, but because there has been a very successful reform of the entire health service there. As a result of the reform, Alaska has closed down some of its hospitals. It now provides so many services in the primary care sector that demand on the acute sector has reduced to the extent that it no longer needs as many hospitals. That is clearly a good thing, as it is never good to have to be treated in hospital. The chances of catching an infection and all the rest of it, even with a very successful patient safety programme, are still much higher than they are in the primary care sector. The point is, that we should not plan the workforce by looking at today’s vacancies and deciding that the workforce plan must replace certain people and find people for certain vacancies, although that is part of it. What matters is the demand forecast for the future profile of services that are going to be required. We should base our workforce plan on our estimates of future demand, not on existing vacancies.

Alex Rowley

I am aware of the Alaskan model because Councillor Andrew Rodger, who was on the board of NHS Fife for many years, championed it. However, the difficulty is the transformation that is involved in getting the resources to the community side—into primary care—while still maintaining acute services. The Government’s idea that the money will somehow just go across and the demand will fall off has not happened. Does the member agree that there has to be bridging in place to provide more resources for community care in order to take the pressure off acute services?

Alex Neil

That is a very fair question. I will make two points. First, the provision for set-aside money in the Public Bodies (Joint Working) (Scotland) Act 2014 has not worked as well as planned and we all know the reasons for that. It was intended to be the modern equivalent of the bridging fund that was used when the Victorian so-called asylums were emptied and people were treated for mental health issues in the community. Secondly, if we get every penny of the Barnett consequentials that we are supposed to get, as a result of the very substantial increase in health spending that is planned for south of the border, I imagine that a fair proportion of that will go into building up the primary and community care sector facilities that we need in order that we can shift the balance from the acute sector to those sectors.

I take the member’s point and I think that the set-aside money approach has not worked as well as the bridging funding method that was used when mental health services were modernised. I am sure that the Cabinet Secretary for Health and Sport will look at the issue for the future.

However, there is no doubt at all that we have to look at the profile of what health will be like in three, four, five or 10 years’ time. There was an announcement two weeks ago by the health secretary and the University of Glasgow about a brilliant £15 million joint project that will look at how artificial intelligence can improve prevention and diagnosis. Part of that will be about being able to identify, in the not-too-distant future, what disease people have before they show the symptoms of having it. The manpower requirements for that kind of diagnosis are completely different from the manpower requirements for how we diagnose today. In fact, the first priority for the future will be to get people who can operate artificial intelligence. I imagine that there is nothing in workforce planning at the moment for artificial intelligence engineers and the like. However, that project is a good example of where we should be thinking of a workforce plan that is not narrowly about filling existing vacancies, but about providing for the kind of 21st century, leading-edge health service that we are planning.

I should say that Scotland is ahead in the application of artificial intelligence and associated technologies to the health service. I hear all the concerns, moans and groans on a daily basis, but sometimes we have to start shouting about the things that we are doing really well in Scotland. Being ahead on artificial intelligence technologies is one of the huge benefits that we have in our health service, and I believe that that £15 million project will transform things even more. That is how we must think about the workforce, because the workforce in five years’ time in terms of numbers, locations, job descriptions and training requirements will be completely different from what it has been in the past five or 10 years, and I think that we are all agreed that we need to plan accordingly.

The bill is an additional tool for the health secretary and the health boards to help us get it right in both the primary and acute sectors. We can never be absolutely accurate in workforce planning—anybody would tell us that—but I am sure that if we do it on the basis that I have suggested and the direction of travel is right, we can get it as near as damn it to right.

Bill Bowman (North East Scotland) (Con)

I welcome the Health and Care (Staffing) (Scotland) Bill in principle, but it should be acknowledged that there are important points to raise about it. I suspect that I might repeat some points that have already been raised in the debate.

In its programme for government 2017-18, the Scottish Government committed to introduce a safe staffing bill during the 2017-18 parliamentary year to deliver on the commitment to enshrine in law the principles of safe staffing in the NHS. That commitment resulted in the introduction of the Health and Care (Staffing) (Scotland) Bill, with its aims of enabling safe and high-quality care and ensuring better outcomes for service users through making the provision of appropriate staffing in health and care a statutory requirement. The bill covers both health and social care services, with the aim of ensuring more integrated workload and staff planning. It has been noted that that broader approach seeks to ensure that there will be appropriate staffing to deliver high-quality care whatever the setting.

As has already been mentioned, it is important to be clear that the bill does not focus on national workforce planning. The bill focuses on the development and application of workload planning tools that aim to ensure that health and social care providers have adequate numbers of suitably qualified staff to provide safe and high-quality services. Although the Scottish Government has overall responsibility for NHS workforce planning and decides on most of the numbers of health service training places, it should be noted that that does not necessarily cover the number of training places for those entering the allied health professions, such as occupational therapy.

The Scottish Government undertook two consultations on the bill’s proposals—in 2017 and in 2018—and the general feedback was that the proposals seemed too narrow. There was a fear that the focus and resources would be directed at nurses and midwives rather than at all groups, including occupational therapists, for example. In addition, it was felt that the proposals did not consider safe staffing in a system-wide way in the context of national workforce planning and training numbers, and current workforce challenges.

The bill currently does not provide guidance on how to identify, monitor and mitigate staffing risks in response to differing daily needs. Additionally, the proposals must go further to strengthen the role of the nurse to make the professional judgments in regard to staffing.

The second consultation on proposals, which took account of earlier responses and focused on how the legislative framework would cohere across health and social care, ran for four weeks in February 2018. The respondents felt that any new methodologies should work across health and social care, that there should be flexibility in how new tools were developed, used and reviewed and that there should be recognition of the new challenges across sectors in recruiting and retaining staff.

The Finance Committee also issued a call for views on the financial memorandum of the bill, and received several responses. The issues that were raised included training costs, costs associated with reviewing the staffing tool and costs to other social care providers. It is important that we use all our resources wisely, and the goal of the bill should be to do just that.

We can all agree that a well-researched and evidence-based staffing framework would be ideal to ensure that the right staff are helping the right patients. It would have a legislative framework for health boards that is methodologically sound. That would include the use of specified staffing and professional judgment tools, consideration of quality, local context and risk, and a requirement to report on how boards use the tool and methodology when making decisions about staffing requirements. For example, what might be right in Ninewells in my region might not be right for Stracathro.

However, the bill provides no concrete examples of how legislation will actually achieve that. The Scottish Government claims that that practice is based on methods that are implemented by nurses and midwives, yet it fails to produce data that demonstrates the success that caregivers have had with the methods. If the bill is to be effective, it must require constant reporting. That would not only maintain data to measure effectiveness but ensure that the guidelines are followed.

It is important to consider how the bill will deal with the real problems of staff shortages and budget cuts in planning teams. There has been little information about the costs of implementing those changes. The social care workforce is currently experiencing challenges in terms of recruitment and retention. We must be sure that the bill will not add further processes and pressures to a system that is already under strain, or increase the reliance on agency staff and undermine the financial stability of the sector. A move to a new system will create new up-front costs before any of the promised savings can be realised.

Although it is already the duty of health boards and care service providers to ensure appropriate numbers of staff, the guiding principle of the bill is acceptable. As has been said, having the right people with the right skills in the right place at the right time to ensure that the highest quality of care and outcomes are delivered across health and social care is a principle that we all share.

The Scottish Government is undertaking a reform of the planning system 12 years after the last reform. However, it has been clear from the beginning that there are problems in planning that are caused by cuts to budgets and staff shortages. The Royal College of Physicians and the Royal College of Nursing Scotland have both raised concerns that staff shortages are a key issue. As others have commented, it is resources, not reorganisation, that are needed.

Bob Doris (Glasgow Maryhill and Springburn) (SNP)

I have not been involved in the scrutiny of the bill at stage 1, because I do not sit on the Health and Sport Committee. However, I note that the policy memorandum says:

“The policy intention of the Scottish Ministers is to enable a rigorous, evidence-based approach to decision making relating to staffing requirements”,

and the stage 1 report says that the

“overall aim of the Bill is to ensure safe and appropriate care staffing levels based on clear, evidence-based methodologies, regardless of setting”.

We can all agree with those underlying principles. I associate myself with those intentions.

Some interesting parts of the stage 1 report have come to my attention. Paragraph 57 says:

“We believe there must be more clarity on where accountability for the provision of appropriate staffing in health boards and care services lies. Whilst the Policy Memorandum advises it will lie with organisations we believe unless there is a named accountable officer there is a high likelihood, particularly in health board settings, for those at ward level to be held or feel accountable.”

I note that the cabinet secretary has since said that clarity in NHS wards around the country will be important, and I welcome the assurances to the committee that health boards will have corporate responsibility for compliance. I also note that senior charge nurses will be expected to run the current adult in-patient tool.

To be fair, I am not sure whether that provides full clarity, given that establishing safe staffing levels at any snapshot in time is not an exact science. I declare an interest, as my wife is a nurse. Clinical co-ordinators use significant data more generally to determine what staffing is required at any given time. Even large events such as football games in a city, predictions of icy weather and trends of peaks and troughs in demand over the past few years can have implications for safe staffing levels in accident and emergency units, high-dependency units, intensive care units and beyond. Predicted demand and surge demand all have to be fed into the mix.

Depending on demand, complexity and the conditions that nurses in particular often have to deal with, nurses are transferred regularly between wards. A nurse often has to decide whether it is safe to transfer a nurse from their ward. By the same token, a nurse might have to decide whether it was appropriate to take an additional patient into their ward. Those nurses would consider whether staffing levels would be safe with an additional patient or if they allowed a nurse to go to another ward that was experiencing surge demand.

The nurse in charge is not always a senior charge nurse, although I appreciate that the final decision would be taken by a senior charge nurse. At every organisational layer in NHS hospitals, professional judgment is exercised. For corporate compliance, the buck must stop somewhere. Greater clarity about that is required.

It is positive that, if conflict arises when a nurse in charge tells a senior charge nurse that taking an additional patient on a ward would not be advisable or when a senior charge nurse disagrees with the board on the professional judgment of safe staffing levels, there will be an opportunity to review, revise and enhance the workload and staff planning tools. However, we need clarity about where responsibility sits.

The extension of the bill to the care sector is powerful and will strengthen the sector—particularly in relation to third sector providers. Operators of third sector care homes in my constituency have told me that the national care home contract has been unfair to them. They have asserted that it gives council care homes preferential treatment and that social care services that have been procured from the third sector are not always funded as appropriately as those in a local authority setting might be.

Surely developing and agreeing—with professional judgment—what a multidisciplinary skills mix would look like in the care sector would be a key strength in the care sector’s negotiations with councils and integration joint boards. Ensuring a level playing field across the care sector, irrespective of where care is delivered, is welcome.

My mum was in a care home that was—fortunately—wonderful. The building was old, but the staff were fantastic. We want to empower people to ask how they can know that the staffing mix in a care home is safe. When they ask that, they are given general reassurances that it is okay and that the care and the skills mix are suitable for their mum, dad, brother or sister.

Such reassurances would be much better if people knew that there was a robust, consistent and reliable evidence-based safe workload planning tool to ensure that the skills mix was correct. Such a tool does not exist consistently across the country, but having one would empower not just the care sector but staff on the front line to say that they do not believe that staffing is sufficient and that providers must do better. In the care sector, we must empower families to be sure that their loved ones are suitably looked after.

I welcome the bill’s general principles.

The Deputy Presiding Officer (Linda Fabiani)

We move to the closing speeches.

David Stewart (Highlands and Islands) (Lab)

This has been an excellent debate, with insightful and well-informed speeches from across the chamber. As a member of the Health and Sport Committee, I was present and took an active part in the questioning of all our witnesses, including the cabinet secretary. Therefore, I feel that I have some background in the subject.

To paraphrase the conclusion of our stage 1 report—which many members have mentioned today—no one can object to the guiding principles of the bill, which is about having the right people with the right skills in the right place at the right time, to ensure the highest quality of care. As we have heard, Labour supports the general principles of the bill. However, as Monica Lennon, Anas Sarwar and Alex Rowley made clear, there are areas of concern, and we believe that addressing those areas could strengthen bill.

This morning I got the cabinet secretary’s response to the committee’s stage 1 report, in which she said:

“This Bill is about workload planning not workforce planning.”

Critics might argue that that is about how many angels can dance on the head of the pin. Many territorial boards in Scotland, such as my own in Highland, have a workforce crisis. Anas Sarwar talked about the consultant who is employed for £400,000 a year—a horrendous amount of money—which, in turn, fuels the flames of financial instability. Scottish Labour believes that health and social care policy should be focused on achieving the best outcomes for people and protecting staff wellbeing.

As COSLA has argued, the overreliance on processes could make the bill just another bureaucratic box-ticking exercise. However, I have heard the cabinet secretary say that she will lodge some amendments at stage 2, and I believe that other members will do that, too. There are opportunities to strengthen the bill.

We need to learn lessons from history. As I said a few weeks ago—during our debate on bullying at NHS Highland—we need to look at the Francis report on bullying and whistleblowing in the NHS in England. It concluded that losing trained talent from the NHS led to inadequate staffing levels and poor quality of care.

As we know from the stage 1 report, a set of 12 workforce planning tools has been developed for nursing and midwifery. As the cabinet secretary will know, the committee conducted a survey on the tools. Some respondents said that the tools were not helpful in a community setting and were time consuming, and that staff were not sure how the tools could help to develop safe staffing for patients. A third of survey respondents had received no training in how to use the tools, and there was no consistency in how training was delivered.

As Audit Scotland has said, there is a risk that the time taken to train affected staff could put extra pressure on the workforce and impact on services and quality of care to patients.

This useful debate was kicked off by the convener of the committee, Lewis Macdonald, who talked about the committee’s constructive suggestions in a unanimous report. He also mentioned allied health professionals’ views, which we must listen to in the debate. As the cabinet secretary will be aware, some evidence suggested that the bill is perhaps too process focused.

Miles Briggs made good comments about the crucial point—it is self-explanatory—that people are the most valuable asset in the NHS. He asked what the bill will do for those working in health and social care on the front line. He also mentioned the RCN survey, which gave us some very useful raw materials.

Just about every member made the obvious point—it must be made—that every single day, NHS staff go the extra mile to help patients. My colleague, Monica Lennon, talked about the fact that we are living longer, but she also asked whether we are living healthier, particularly if we look at health inequality within Scotland. She talked about how a focus on outcomes is key and she made the interesting point that there are enough vacancies in the NHS to staff two moderately sized hospitals.

Alison Johnstone made an excellent point about research finding links between good, safe staffing levels and favourable health outcomes. She also touched on the 4.5 per cent vacancy level for nurses and midwives.

Many members have made the point that the Scottish Government must have a duty of care for the wellbeing of all staff. That duty may be mentioned in some historical legislation, but perhaps there could be an amendment in that regard from the committee at stage 2 that the cabinet secretary would look on favourably.

Alex Cole-Hamilton started with a rhetorical question: is the bill needed? He stressed the importance of protecting hard-working staff on the front line and made a key point about the need to get the right balance of skills and experience.

Anas Sarwar made an interesting point about whether there should be a cap on agency staff costs, which I hope that the cabinet secretary will consider.

The other day, I was reading the British Medical Journal, in which Dr David Oliver, who is a consultant in acute general medicine, wrote:

“Without adequate staffing in clinical roles NHS performance will decline, and services will become unsustainable. Morale will worsen, and staff will leave or choose to do less—a vicious circle.”

As Nye Bevan would have said about that,

“You don’t have to gaze into a crystal ball when you can read an open book.”

Brian Whittle (South Scotland) (Con)

I refer the chamber to my entry in the register of members’ interests, which states that I am a director of an IT company that is developing communication and collaboration platforms for sectors including the healthcare sector. I receive no remuneration for that post. In addition, a close family member works in the Scottish NHS.

It has been a good debate on an extremely important subject. When the bill was first proposed, it was to be called the safe staffing bill. The word “safe” was dropped because of the connotations of a safe level of staffing not being met. As Anas Sarwar said, if we had safe levels of staffing, by default, we would also have unsafe levels of staffing. That probably tells us how important the bill is.

The bill allows us to focus on our healthcare professionals, their health and the quality of the healthcare that we receive from the NHS. The guiding principles and overall purpose of the bill are about reassuring people in hospital or social care that they will receive safe and high-quality care.

There was a concern among members of the committee that the work on the integration of health and social care, which is already well under way, could be negatively affected by the bill, so I think that the cabinet secretary needs to reassure the committee that that will be avoided.

Edward Mountain was right in his summation when he said that although the welfare of all our healthcare professionals is mentioned in the bill, it does not say—David Stewart made the same point—how that will be achieved, given the ever-increasing demands on the health and social care sector, which the cabinet secretary herself mentioned. Conservative members have consistently stated that, when it comes to creating an environment in which patient outcomes are a priority, looking after the health of our healthcare professionals must be the first step to consider. As the Marie Curie charity highlighted, staff safety and wellbeing contribute to safe and high-quality care.

The bill will require to be underpinned by the appropriate technology. That was a thread that I was keen to pursue during the committee’s evidence taking. My concern in that regard is that a replacement platform to deliver on the bill’s objectives was not developed prior to the bill’s introduction, even though the development of appropriate technology is fundamental to the success of those objectives. The committee was surprised to learn that a review of the current tools to assess their efficacy had not been undertaken prior to the bill’s introduction.

The starting point for any bill should be consideration of the end objectives, and the Scottish Government has not been particularly successful in rolling out technology. To be successful in developing technology, it is essential that the project is fully scoped and that tight protocols are in place. Understanding that step should have been a prerequisite for the bill’s introduction. The implementation of the current tools is patchy at best.

I always enjoy listening to Alex Neil’s contributions to health debates, and he was right to say that there are wonderful technology companies in Scotland that are developing fantastic products. However, we fall down when it comes to integrating those products into the health service; we are not particularly good at that. The use of those tools and their integration into the NHS must be considered.

As things stand, the technology that the Government is relying on for the nurse and midwifery workforce tools is bolted on to an existing platform. That is a recipe for confusion and does not seem to deliver a patient-medical practitioner outcome focus. As Miles Briggs said, we need to look at outcomes versus process. COSLA said that it saw the bill as focusing on “inputs rather than outcomes”. Indeed, the committee noted that the Scottish Government did not consider that outcomes should be mentioned in the bill.

If outcomes were the primary objective, allied health professionals, occupational therapists and social care would be intrinsically woven into the software development before it ever launched, because an outcomes-focused solution must involve that multidisciplinary team. It is inconceivable that any health care plan could be effective without physiotherapists, radiographers, speech therapists, mental health practitioners, social care professionals and so on. It is very welcome to hear the cabinet secretary suggest that stage 2 amendments will be lodged to address that, and we look forward to seeing and assessing those amendments.

I was pleased to hear that NHS National Services Scotland is undertaking work to procure a new platform to replace the Scottish standard time system platform, but that is being done without the development plan for the workforce planning tools required for a multidisciplinary team approach. That work needs to be done in conjunction with the introduction of the bill, if patient and staff outcomes rather than process are to be the main drivers.

Many members have highlighted the unintended consequences of the tools applying only to nurses and midwives. It might squeeze out the other disciplines, such as allied health professionals, occupational therapists, social care professionals and so on.

Annie Wells highlighted the third sector’s concerns. Given that a third of the voluntary sector is already involved in social care, that sector needs to be persuaded. The SCVO suggested that no particular benefit would come from the bill, while the Law Society of Scotland said:

“It is difficult to assess from the face of the Bill whether the main policy objective of appropriate staffing will be met, as the Bill is largely a vehicle for more legislation to come.”

The Royal College of Surgeons of Edinburgh warned:

“There is a danger that individuals are held accountable for not being able to provide ‘safe’ levels despite circumstances being out of their control.”

Other sectors, such as the care sector, have raised similar concerns. Unison Scotland noted that if the Scottish Government decides to proceed with the bill in a fashion that requires adherence, it needs to make it clear who is responsible for delivering that policy. If the Government cannot clarify specific lines of accountability, the bill will become redundant.

With regard to social care, if commissioners are introduced into the process without being referred to in the bill, how will they be required to adhere to the guiding principles?

I am sure that all members would agree that the Scottish Government’s objectives are not only laudable but essential, but if the bill is to succeed there is work to do. In supporting the bill at this stage, we recognise that the elephant in the room is the shortage of staff across all medical professions. Unless we address that, the potential of the bill will be eroded.

The Deputy Presiding Officer

I call Jeane Freeman to close the debate. We have a little extra time, so a generous 10 minutes should take us to decision time.

Jeane Freeman

Thank you, Presiding Officer.

I agree with other members that this has been a good debate, which has encapsulated the complexity of the legislation and the importance of ensuring that the bill acts as an enabler for the development of more evidence-based, professional-led methods of assessing the workload that is associated with the delivery of care for the people of Scotland.

I thank all members who have taken part in the debate, and I take this opportunity to thank the Delegated Powers and Law Reform Committee, the Finance and Constitution Committee and, in particular, the Health and Sport Committee for their work to inform Parliament’s consideration of the bill.

Before I turn to specific points that members have raised, I thank our key partners across the health and care sector for their constructive engagement with us and for their considerable input to the bill so far. I have listened very carefully to all the views that have been expressed—I will return to that later—and will continue to work with those key partners to ensure that the bill delivers what we want it to deliver.

I will turn to some of the points that have been made, but I have to say that, even with a generous 10 minutes, I will not be able to cover them all. Before I start, though, I will say this: after the debate has been concluded and Parliament has—I hope—agreed to support the bill at stage 1, we will look carefully at the Official Report of the debate and I will carefully consider all the points that have been raised and how we might address them. I will then deal with those issues when I come to the Health and Sport Committee at stage 2.

I am certain that members across the chamber will want to lodge amendments at stage 2. As was my approach when I had responsibility for social security, I will offer an opportunity to discuss those amendments before they are lodged to ensure that, where we can reach agreement, we do so in advance. I would hate to be in the position where the Government agrees with the principle and spirit of an amendment but cannot agree to its being passed simply because some of the words are not quite right in legislative terms. We have managed to take that approach before and I am certain that we can manage to do so again. I am not seeking to subsume everyone else’s amendments into Government amendments, but I want to work as hard as I can to reach consensus on the bill. That is because I believe that we all agree on the bill’s principles and recognise its importance, and we all want to make good law that will aid us in our work.

First, I want to address some of the points that Lewis Macdonald made when he spoke on behalf of the committee. I should say that I am grateful for the considered report that the committee has produced for us and for the contribution that Mr Macdonald made. On the point about the bill being too focused on process at the expense of outcomes, I know that others have made the same comment—indeed, COSLA has raised it as a concern—but I do not believe it to be the case. The bill recognises a focus on outcomes, but I am perfectly willing to look at whether we can strengthen that aspect and make it even clearer.

That said, I cannot understand the thinking here. Surely having an evidence-based, robust approach and a clear methodology that are consistently applied across our health and social care sector, which are appropriate to those settings and which allow us to identify workload and, in turn, ensure that professional judgment can be exercised with regard to the staff and skills mix that is needed will lead to the provision of high-quality outcomes for patients and staff. As I have said, if that is not clear enough, I will be very happy to look at it in more detail.

I am grateful to Mr Macdonald for recognising the importance of rolling out excellence in care and for raising the point about monitoring and guidance. In his speech, Anas Sarwar made some useful points about how, once the bill is, as I hope, passed and enacted, the public and, indeed, the chamber can be advised of the work that will go on and the results that will be produced and can compare and contrast that information with work on workforce planning and the recruitment and training of appropriate levels of staff in all areas. Again, I am happy to look at how that aspect might be strengthened in the bill.

I do not believe that the bill will skew resources because one set of tools is ahead of the other. We have made it very clear that, as the tools are developed for the settings in which we will want them to be put in place, we will work with stakeholders to ensure that they are appropriate to those community-based settings. The existing tools already cover both acute and community settings, but I strongly take Alex Neil’s point that, when we talk about community settings, we are talking about not only social care but primary care.

Anas Sarwar

I realise that the cabinet secretary cannot respond to all the requests that have been made, but can she respond to the specific point about a cap on agency fees and charges?

Jeane Freeman

I say to Mr Sarwar that I am getting there—trust me.

On the question of why we need legislation as opposed to the current mandate, one member—I think that it was David Stewart—made it clear why we need to move from a mandate to legislation. It is because we have the mandate but we do not have sufficient training, we do not have time for training, we do not have support for staff and we do not have support to ensure that the information that is produced is analysed and then applied, and the legislation will enable us to do that.

With regard to who is accountable, the bill, if passed, will add to the National Health Service (Scotland) Act 1978 and will make it a duty for the health board to be accountable. That includes the chief officers of IJBs. Similarly, the existing powers of the Care Inspectorate would apply. I therefore think that the question of accountability can be answered, although I am happy to discuss that further.

Before I run out of time, I will turn to the proposed cap on agency charges. I agree with Mr Sarwar in full that the current situation, of which he gave examples, is unacceptable. I am not certain that the Scottish Government has the powers to do what he asks in terms of capping the agency charges, but I am happy to continue to discuss that further with him and his colleagues to see what more we might do. Certainly, the application of the legislation should lead to a continued reduction in the requirement for agency spend. I should make the point that, in the current year, that is down by 7 per cent from what it was previously, and the application of the legislation should allow us to drive that down even further.

I take this opportunity to thank Mr Sarwar for his contribution, in which he said what he thought was wrong with the bill and then offered concrete suggestions for its improvement.

I need to make a point about Brexit. I am not standing here and saying that our current issues with recruitment and retention are exclusively down to Brexit, but there is no question but that Brexit will exacerbate the problem that we have. So, too, will immigration legislation that does not meet the particular needs of Scotland, the Scottish economy and the Scottish population. That is why we must seriously consider the issue of immigration powers coming to this Parliament and not simply residing in Westminster, where they are skewed.

David Stewart

The cabinet secretary will be well aware of the UK Government changes that were made this week, which will double the non-EU staff levy that has to be paid. That will affect the health service in Scotland. Has the cabinet secretary made an assessment of the effect that that will have?

Jeane Freeman

I cannot think that it will be a good one. I have not yet made an assessment of that in detail but, once I have done so, I am happy to let Mr Stewart know how it might add to the difficulties that we are facing.

Mr Mountain and others talked about looking at the issue of wellbeing in the bill. Again, I am happy to consider an amendment that might strengthen that area and to discuss that issue further. We need to be careful that we do not stray into health and safety or employment legislation, because those areas are reserved.

I do not think that it is an either/or proposition when it comes to assessing workload and workload planning. We should not wait for one to be got right before we address the other; the two need to go hand in hand. However, I believe that the bill, significantly strengthened at stage 2, as it undoubtedly will be, will greatly contribute to our capacity to increase the performance and efficacy of our workforce planning and, from that, the number of people who we support through training across a range of professions.

As always, I am open to further conversations as we go into stage 2 in order to see the extent to which we can reach consensus on this important piece of legislation. There will undoubtedly be areas on which we disagree, but I am certain that, with good will from across the chamber, we can get a piece of legislation that is not only fit for purpose but fit for the needs and expectations of the people we serve.

The Presiding Officer (Ken Macintosh)

We move to decision time. The first question is, that motion S5M-15055, in the name of Jeane Freeman, on stage 1 of the Health and Care (Staffing) (Scotland) Bill be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Health and Care (Staffing) (Scotland) Bill.

The Presiding Officer

The second question is, that motion S5M-14969, in the name of Derek Mackay, on a financial resolution for the Health and Care (Staffing) (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Health and Care (Staffing) (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.

The Presiding Officer

That concludes decision time.

The Convener

Agenda item 2 is stage 2 consideration of the Health and Care (Staffing) (Scotland) Bill.

The Cabinet Secretary for Health and Sport, Jeane Freeman, is accompanied by Diane Murray, who is associate chief nursing officer; Louise Kay, who is the bill team leader; Julie Davidson and Johanna Irvine from the Scottish Government legal directorate; and Jonathan Brown, who is a parliamentary counsel. The officials at the table will change according to which amendments are being debated. I welcome you all.

I also welcome Monica Lennon, and welcome back Alison Johnstone, who are here because they have lodged amendments to the bill. I welcome in advance of his arrival Anas Sarwar, who will join us for the same reason.

Members should have with them a copy of the bill as introduced, the marshalled list of amendments, which was published on Thursday, and the groupings of amendments, which sets out the amendments in groups in the order in which they will be debated.

It might be helpful to members and others if I briefly explain the procedure. There will be one debate on each group of amendments. I will call the member who lodged the first amendment in the group to speak to and move that amendment, and to speak to all the other amendments in the group. I will then call other members who have lodged amendments in the group. Members who have not lodged amendments in the group, but who wish to speak, should indicate that by catching my attention in the usual way. If the cabinet secretary has not already spoken to the group, I will invite her to contribute to the debate just before moving to the winding-up speech. I will conclude the debate on the group by inviting the member who moved the first amendment in the group to wind up.

Following the debate on each group, I will ask the member who moved the first amendment in the group whether he or she wishes to press it to a vote, or to seek to withdraw it. If the member wishes to press the amendment, I will put the question on it. If a member wishes to withdraw their amendment after it has been moved, that must be agreed to by the other members of the committee. If any member present objects, the committee will move to a vote on the amendment.

If a member does not want to move their amendment when it is called, they should simply say, “Not moved.” Please note that any other member present may move the amendment. If no one moves the amendment, I will immediately move on to the next amendment on the marshalled list.

Only committee members may vote on the amendments. Voting in any division is by show of hands. I remind members to indicate their intention clearly and to keep their hands in a position in which they can be seen, so that their votes will be recorded fully by members of the clerking team.

I will ask the committee to approve each section of the bill at the appropriate point.

We will make whatever progress we can make today and seek to get through as much of stage 2 as we can by 12 o’clock.

Section 1—Guiding principles for health and care staffing

The Convener

Amendment 81, in the name of Monica Lennon, is grouped with amendments 82, 1, 83, 2, 8 to 12 and 14.

Monica Lennon (Central Scotland) (Lab)

Amendments 81 to 83 would ensure that the definition of the purpose of staffing includes a reference that it should achieve the best possible outcomes for patients. Together, the three amendments would ensure that individuals, whether they are national health service patients or people using social care services, would be placed at the heart of what the bill is trying to achieve.

I am sure that we all agree that staff are the backbone of the NHS, but they are not there to deliver a service for the sake of it; they are there to look after and care for patients and users of its services. That is also reflected in amendment 1, which is in Alex Cole-Hamilton’s name. The health and social care sector operates with that mindset, and the policy memorandum for the bill states that the bill’s aim is to be an enabler of

“high quality care and improved outcomes for service users.”

However, if that is the intention, it should be explicit in the bill, especially as the rest of the duties in the bill are to be interpreted and implemented through the lens of the guiding principles. Otherwise, the bill runs the risk of becoming process driven and setting a new tick-box exercise, which no one at the table wants.

Amendment 8, which is in the name of the cabinet secretary, will add “improving ... outcomes” to the list of considerations that are to be factored in when arranging health and social care staffing. However, section 1 is caveated as being required only

“in so far as consistent with the main purpose”.

Ensuring the best outcomes for patients and people who require social care should not be caveated, because it is the reason why we have health and care services and staff in the first place.

I move amendment 81.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Amendments 1 and 2, which are in my name, should not be controversial. Monica Lennon has alluded to the reasoning behind them, which is to recognise that person-centred planning is absolutely key throughout our health and care services. The bill does not necessarily reflect that in its language. Amendments 1 and 2 seek to extend the reach of that to recognise that the approach has to be about the

“health, wellbeing and safety of service users”

as much as it is about staff.

The one amendment in the group that I have a problem with is amendment 9, which is in the name of the cabinet secretary, because I believe that it would dilute the intention of the bill by changing it from being about having the right staff in the right place at the right time to being about

“making the best use of the available”

staff and resources. We need to throw our caps over the wall on the issue and to be a bit stronger in our intention.

My amendment 11 is really important in terms of the debate that we heard throughout stage 1 about extending the reach of the bill to allied health professionals. The amendment recognises that the toolkit and the tools that it contains have an application that goes far beyond primary care clinicians. We heard strong testimony from a range of allied health professionals about their desire to be included in the bill, to work towards best practice, and to work together with primary care colleagues. The Royal College of Nursing Scotland had some anxiety about use of the word “together”, but is happy with amendment 11 as long as its intention is that a collaborative approach be taken, rather than people just working side by side or cheek by jowl. I confirm that that is the case.

The Cabinet Secretary for Health and Sport (Jeane Freeman)

In its stage 1 report, the committee asked the Scottish Government to place in the bill an additional guiding principle linking the outcome focus to the health and care standard and quality measures. Amendments 8 and 12 are intended to do just that. They will insert a new general principle of

“improving standards and outcomes for service users”,

alongside a definition that provides that by

“standards and outcomes for service users”,

we mean the health and social care standards.

Amendment 9 will remove the phrase

“allocating staff efficiently and effectively”

from the list of guiding principles in section 1(1)(b) and replace it with

“making the best use of the available individuals, facilities and resources”.

That wording, which was used in the Public Bodies (Joint Working) (Scotland) Act 2014 integration planning principles, makes it clear that we do not wish health boards and care services to address each and every risk simply by bringing in agency staff. We wish to see them managing their services and staff “efficiently and effectively”, and to see them considering whole-service redesign where appropriate, in order to ensure that they are providing the best possible service to their patients and service users.

I heard the concern from some staff groups that the bill is not specific enough about their inclusion, and that it does not recognise the importance of multidisciplinary working. Amendment 10 will make it clear in the guiding principles that multidisciplinary approaches to staffing should be considered where appropriate. I confirm that the Government is happy to support amendment 11, which is in the name of Alex Cole-Hamilton, which will place a definition of “multi-disciplinary services” in section 1.

Related amendment 14 will provide further clarification in the general duty in proposed new section 12IA of the National Health Service (Scotland) Act 1978 in order to ensure appropriate staffing and that the contribution of all professional disciplines to delivery of high-quality care must be considered.

Although I am supportive of the aims of amendments 1 and 2, which are in the name of Alex Cole-Hamilton, I say with respect that they are entirely unnecessary, and seem to have stemmed from a slight misunderstanding of the bill as drafted. The duty in proposed new section 12IA of the 1978 act to “ensure ... appropriate” staffing already sets out that, for the national health service,

“It is the duty of every Health Board and the Agency to ensure that at all times suitably qualified and competent individuals are working in such numbers as are appropriate for ... the health, wellbeing and safety of patients, and ... the provision of high-quality health care.”

Part 3 of the bill contains an equivalent duty for

“Any person who provides a care service”.

Sections 2 and 3 of the bill set out that “every Health Board”, in complying with proposed new section 12IA of the 1978 act, and

“any person who provides a care service”,

in complying with section 6 of the bill,

“must have regard to ... the guiding principles”.

Therefore, the principles and the general duty are intrinsically linked. Those who must follow the general duty must also

“have regard to the guiding principles”

in doing so.

Amendments 1 and 2 are therefore not necessary, because they would add nothing new to the bill but would, instead, duplicate—indeed, through amendment 2 they would, arguably, triplicate—something that is already clearly set out in the bill. Taken literally, they would mean that a health board would be legally required to provide appropriate numbers of staff for

“the health, wellbeing and safety of”

patients, and, in doing so, would have to arrange staffing for the health, wellbeing and safety of patients, and—in so far as is consistent for that purpose—arrange staffing for the health, wellbeing and safety of patients. I am sure that the committee gets my point. I say to Alex Cole-Hamilton that we do not need to replicate statutory duties in order for them to have legal force. On that basis, I ask the committee not to support amendments 1 and 2.

On amendments 81, 82 and 83, which are in the name of Monica Lennon, the guiding principles in section 1 apply across health and social care and must recognise that the positive outcomes that service users wish to see are not just clinical or medical in nature. Amendment 83 would state that the purpose of staffing for health and care services is

“to ensure the best health care outcomes”,

but neglects to mention the wider health and care outcomes, which are set out in the health and social care standards. For that reason, I ask the committee to reject amendments 81 to 83.

The Convener

As no other member wishes to speak, I ask Monica Lennon to wind up.

Monica Lennon

The cabinet secretary has made some valid and interesting points. However, I am sure that members have put a lot of work into their amendments, and there might be some points that we disagree on. I do not have much to add. I know that I do not have a vote in the committee, but I support the amendments. I had concerns about amendment 9, because I know that the RCN has expressed concerns about it. However, I know that the cabinet secretary has expressed a different view.

The Convener

The question is, that amendment 81 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 81 agreed to.

Amendment 82 moved—[Monica Lennon].

The Convener

The question is, that amendment 82 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 82 agreed to.

Amendment 1 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 1 agreed to.

Amendment 83 moved—[Monica Lennon].

The Convener

The question is, that amendment 83 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 83 agreed to.

Amendment 2 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 2 agreed to.

Amendment 8 moved—[Jeane Freeman]—and agreed to.

Amendment 9 moved—[Jeane Freeman].

The Convener

The question is, that amendment 9 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

Against

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 9 disagreed to.

Amendment 10 moved—[Jeane Freeman]—and agreed to.

Amendment 11 moved—[Alex Cole-Hamilton]—and agreed to.

Amendment 12 moved—[Jeane Freeman]—and agreed to.

Section 1, as amended, agreed to.

Section 2—Guiding principles in health care staffing and planning

The Convener

Amendment 84, in the name of Miles Briggs, is grouped with amendments 85 to 89 and 110.

Miles Briggs (Lothian) (Con)

The purpose of amendment 84 is to place a duty on commissioners to be satisfied that, in contracting or agreeing services, they have taken

“all reasonable steps to ensure that”

providers are able to deliver health services that have

“appropriate staffing arrangements”.

As the bill is drafted, commissioners must only

“have regard to—

(a) the guiding principles ... , and

(b) the need ... to have appropriate staffing arrangements in place.”

Commissioners should be clear about their part in ensuring staffing for safe and effective care. As commissioners, NHS boards and integration authorities should therefore be under a clear duty to commission services in a way that allows health service providers to arrange staffing for safe, high-quality care. If services are not commissioned with sufficient funding to ensure that there are appropriate numbers of staff, or staff with appropriate expertise, it is the provider and not the commissioner who will be held accountable. Ultimately, it is patients who may experience poor-quality care as a result.

Amendment 86 is similar and replicates amendment 84 for care services.

I move amendment 84.

Monica Lennon

Amendments 85, 87 and 89 are aimed at improving the ease with which there can be scrutiny of staffing levels and the implementation of the duties in the bill. For health services, amendment 85 does that by, first, improving the information that is made available about decisions concerning staffing levels in health services; secondly, ensuring that decisions about staffing levels are linked to improving outcomes for service users, rather than being made for financial or practical reasons; thirdly, requiring the Scottish ministers to make the information public by reporting to Parliament; and, finally, requiring the Scottish ministers to respond to decisions that have been taken by health service providers about staffing, setting out what action they intend to take in relation to staffing in the health service. The intention of that final obligation on the Scottish ministers is to connect the bill, which is process driven and focused on on-the-ground workload planning, to national-level workforce planning. Decisions that are made at national Government level have an impact on the ability of health and care providers to provide staff for services, whether because of the budget choices that are made, the number of training places that are made available, or the registration and recruitment process that is required.

I note that amendment 90, in the name of Alison Johnstone, although not in this group, is complementary, as it places a duty on ministers to ensure an adequate supply of healthcare staff.

Amendment 85 is intended to provide full scrutiny of the decisions that have been made up the chain of accountability. Amendment 87 is a small amendment that ensures that commissioners must consider all the obligations on providers, as opposed to only those that are listed later in the bill. Amendment 89 gives the same obligations of reporting to commissioners of care as amendment 85 does to healthcare providers. Similarly to amendment 85, it is aimed at improving scrutiny of the implementation of the bill and the staffing levels in the social care sector.

Should amendments 86 and 88, in the names of Miles Briggs and David Stewart, be agreed to, amendment 89 will also require commissioners to report when financial decisions have been made about staffing levels and available resources for staffing in the commissioning of care services. As with amendment 85, amendment 89 provides for scrutiny of the decisions made by ministers and requires them to respond to the situations that are faced by the sector.

A slight difference between amendment 85 and amendment 89 is that amendment 89 requires reporting on the risk that is faced by commissioners of care in complying with the duty. It is important that that is included, so that the context in which decisions are taken is made clear. That would apply, for example, to the financial context as many social care budgets are squeezed, or to a lack of available staff.

Although a reference to risk is not included in amendment 85, it has not been totally left out. Instead, it has been added to an amendment in a different group, which is about the content of health board reports to Scottish ministers on staffing and seemed a more appropriate place.

David Stewart (Highlands and Islands) (Lab)

Amendments 88 and 110, in my name, seek to ensure that commissioners of care services bear a similar responsibility and duty with regard to the staffing of care services as are given to care providers.

In the evidence sessions during stage 1, the committee heard from groups in the social care sector that were concerned that the bill placed all the focus on care providers and did not adequately recognise the impact that commission decisions about funding and resources have on staffing levels. I recognise that amendment 86, in the name of Miles Briggs, seeks to ensure that sufficient funding is given to providers in order to provide adequate staffing arrangements. I believe that amendment 110 complements that aim. The reference to “resources” would include funding but, by mirroring the wording of section 6, amendment 110 would require commissioners to specifically consider the same factors that service providers are required to consider when determining the appropriate staffing levels. Locating the provision relating to the commissioners’ new duty before the existing duty that is contained in section 6 indicates the shared responsibility of commissioners and providers to provide adequate staffing and the reliance by the latter on the former for their ability to comply with that duty.

I acknowledge the note from Scottish Care that was given to the committee yesterday, which references amendment 110, and the concern that it would limit the ability of providers to embrace new technologies. However, I respectfully suggest that the additional considerations that are set out in subsection (2) of the section that amendment 110 would introduce, specifically paragraph (e), which refers to

“the needs of service users”,

provide flexibility in how the required number of staff is assessed. Similar wording is used in section 4 with regard to healthcare services. I am aware that the social care sector differs from the health sector, but new technologies have adapted how services in the healthcare system are provided, and subsequently the staff and professions that are needed to provide such services. There is no reason in principle why a similar situation should not apply in social care.

Amendment 88 is consequential to amendment 110 and requires commissioners to consider the additional duty. If it is passed, amendment 89, in the name of Monica Lennon, would close the feedback loop and ensure that reports to the Scottish ministers would include a reference to the additional duty that would be placed on commissioners.

Jeane Freeman

Amendments 84 and 86, in the name of Mr Miles Briggs, are parallel provisions that apply respectively to healthcare planning and care service planning. I therefore intend to speak to both amendments before addressing the rest of the amendments in the group.

In truth, I am not clear what would be achieved by amendment 84 and what its aim is. It would require health boards to “take all reasonable steps” to provide sufficient funds to persons from whom they have contracted a service or with whom they have entered into an arrangement under the National Health Service (Scotland) Act 1978. Amendment 84 amends section 2, but section 2 does not apply to the commissioning of services by the integration authority: it applies to the contracting of services from a private health care provider or agency staff. Agreement on the payment that is required for the provision of a service is an integral part of the contracting process. More importantly, in contracting a service by virtue of the 1978 act, a health board retains accountability for the services that are provided under that contract and must ensure that they are delivered in an appropriate way. Put simply, a service provider would not agree to the contract if the amount that was set out in it was insufficient, and a board would not agree to a contract if it had not satisfied itself that the provider would deliver the required quality of care and level of staffing.

Amendment 86 would amend section 3 to place a similar duty on local authorities and integration authorities to provide sufficient funds to those from whom they contract a care service. Section 3 applies to the contracting of a service by a local authority or the integration authority from a care service provider. It may be the case that Miles Briggs has lodged amendments 84 and 86 due to a concern that local authorities are contracting services from care service providers, as planned by the integration authority, in cases in which the amount paid does not allow a care service provider to have appropriate staff in place. As is the case with the contracting of services in health, when a care service provider tenders for a contract with a local authority, both must agree that the amount that is paid for the service allows them to comply with their respective duties before agreeing to the contract. Section 3 requires local authorities and integration authorities to have regard to the duties that are placed on care service providers. As drafted, the amendments do not work, because it is not the responsibility of the health board or local authority to provide funds; rather they pay for a service and are accountable for ensuring that the service meets the legislative requirements. If Mr Briggs has any remaining concerns, I suggest that we work together to fully understand them and seek to draft an amendment at stage 3.

I ask Mr Briggs not to press amendment 84 and not to move amendment 86, on the understanding that I will work with him to address his concerns and bring forward an amendment at stage 3, if he so wishes.

Amendment 85 would require health boards to report on how they have complied with the duties that are placed on them under section 2. That is something that could be included in the reporting duty that is set out in proposed new section 12IE of the 1978 act and I would be happy to make that more explicit for stage 3. I ask the committee to reject amendment 85 on the basis that I will amend section 12IE at stage 3.

Amendment 87 would create a circular reference. Section 3(1) imposes a duty to have regard to the guiding principles when carrying out the section 6 duty. Section 3(2) is about the planning aspect and when arrangements are being secured to get the care service delivered operationally by another person. The guiding principles already apply under section 3(2)(a). Given that commissioners already have to have regard to them under that provision, to create a duty to have regard to the duty to have regard to them is clearly circular. On that basis I ask the committee to reject amendment 87.

Amendment 89 would require local authorities and integration authorities to report on their compliance with section 3(2) and any risks that may affect their ability to comply. There are already statutory requirements on integration authorities to plan for the use of their resources in the context of their available budgets, publish those service and financial plans annually, and report on them annually. Amendment 89 therefore duplicates existing statutory duties, and for that reason I ask the committee to reject it.

I have serious concerns about the impact that amendments 88 and 110 would have on the success of integration. Integration authorities are already under a statutory obligation to deliver best value in terms of the quality of care that they commission within the resources that are available to them. By bringing together expertise in health and social care services, integration authorities are developing innovative approaches to care that focus on prevention, support and independence for people with multiple complex needs, for whom community-based support can often provide a better outcome at lower cost than would be found in a hospital or care home. By focusing on an obligation to provide a defined amount of money for a defined service for a particular period of time, amendment 110 risks inhibiting local partners’ capacity for innovation within their total available resources.

I point out that amendment 110 focuses only on social care and does not apply to health. I assume that amendment 110 has been lodged due to the same concerns about adequate funding for care service providers. Therefore, I extend the same offer to David Stewart as I do to Miles Briggs, which is to work together on drafting something that will work for stage 3. For that reason, I ask David Stewart not to move amendments 88 and 110.

The Convener

I ask Miles Briggs to wind up and to press or withdraw amendment 84.

Miles Briggs

Amendments 84 and 86 are intended to place a duty on commissioners to be satisfied that, in contracting or delivering services, they have taken “all reasonable steps” to ensure that providers are able to deliver health services with appropriate staffing arrangements. Given the constructive aspect of what the cabinet secretary has said, which I welcome—and if David Stewart agrees—I am happy not to press amendment 84 and not to move amendment 86.

Amendment 84, by agreement, withdrawn.

The Convener

Amendment 85 has already been debated with amendment 84.

Monica Lennon

I did not quite catch everything that the cabinet secretary said, but I think that there was a welcome commitment to amending proposed new section 12IE of the 1978 act. I am not sure whether that captures everything that I was looking to do; I am happy to discuss the matter with her, but I will move the amendment today as a safeguard.

Amendment 85 moved—[Monica Lennon].

The Convener

The question is, that amendment 85 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 85 agreed to.

Section 2, as amended, agreed to.

Section 3—Guiding principles in care service staffing and planning

Amendment 86 not moved.

Amendment 87 moved—[Monica Lennon].

The Convener

The question is, that amendment 87 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 87 agreed to.

Amendment 88 not moved.

The Convener

The next group is on ministerial guidance on staffing by care services. Amendment 13, in the name of the cabinet secretary, is grouped with amendments 68 to 71.

Jeane Freeman

Amendments 13 and 68 to 71 relate to the guidance on staffing by care services that ministers can produce under the bill.

Amendment 13 would allow ministers to issue guidance on the duty on commissioners of care services under section 3(2) to have regard, when commissioning services, to the guiding principles for care staffing and to certain statutory duties on care service providers in relation to staffing. As with the other guidance powers in the bill, that would be subject to consultation and would have to be published.

Section 8(1) already sets out that guidance can cover the duties placed on care service providers under sections 6 and 7 on ensuring appropriate staffing and adequate training of staff, respectively. Amendment 68 clarifies that that guidance can cover the guiding principles, too.

Section 8(2) lists those whom ministers must consult before issuing the guidance, and amendment 69 will add the Scottish Social Services Council to that list. In evidence to the committee, the SSSC highlighted its omission from the list, and I agree that it is essential that its view as the regulator for the social service workforce in Scotland is sought. As it had always been my intention to consult with SSSC through section 8(2)(d), which allows ministers to consult with

“such other persons as they consider appropriate”,

I was therefore happy to lodge the amendment to assure the SSSC that it will be consulted.

Amendment 70 will add those who commission services to the list of those whom ministers must consult before issuing the guidance. That will include integration authorities, whose addition was suggested in some of the written evidence to the committee.

I have listened to the views that have been expressed to the committee by third sector bodies that wanted the bill to contain a stronger commitment to seeking the views of service users, their carers and the third sector organisations that represent them. Section 8(2)(b) already requires ministers to consult representatives of service users, but amendment 71 will add representatives of carers to the list of those whom ministers must consult before issuing guidance under section 8 to care service providers.

I move amendment 13.

Sandra White (Glasgow Kelvin) (SNP)

I want to mention one issue again. The bill is inclusive, in terms of nursing and social care, and amendment 13 goes some way to putting across that it is about not just acute and primary care but social care, too. I welcome this addition from the cabinet secretary.

Jeane Freeman

I welcome what Ms White has said. It is important to be reminded of that issue at this stage in our deliberations. The bill is intended to cover both health and social care. Therefore, we need to be careful neither to overmedicalise nor to ignore social care and the views of those operating and delivering in that service area. Amendment 13 is entirely compliant with overall cross-party support for integration of health and social care, so I am grateful to Ms White for making that point. Other than that, I have nothing to say.

The Convener

The question is, that amendment 13 be agreed to. Are we agreed?

Amendment 13 agreed to.

Amendment 89 moved—[Monica Lennon].

The Convener

The question is, that amendment 89 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 89 agreed to.

Section 3, as amended, agreed to.

Section 4—NHS duties in relation to staffing

Amendment 14 moved—[Jeane Freeman]—and agreed to.

The Convener

The next group of amendments relates to the duty to ensure appropriate staffing and the purposes of staffing. Amendment 3, in the name of Alex Cole-Hamilton, is grouped with amendments 4, 5, 15 and 16.

Alex Cole-Hamilton

I hope that this group of amendments will not prove to be controversial. They are about extending the reach of the bill and recognising that although the safety of patients has to be paramount, so must that of staff. At stage 1, I gave an example that I had heard from a stakeholder about a psychiatric unit where professionals were asked by their union whether they had a safe staffing complement that night. They said, “We have a safe staffing complement for the patients, but because we work on an attack-response basis, if something happens, we can’t guarantee that we have enough staff to keep our staff safe.” My amendment recognises that sometimes we put clinicians, nurses and front-line professionals in harm’s way in our health and social care settings, and that their safety should be as paramount as patient safety.

The meaning and intent of my amendments 4 and 5 extend that point and recognise that the bill reaches further than just hospital and service settings.

I also want to say a word about the cabinet secretary’s amendment 15. Our interpretation—I hope that she will clarify the matter in her remarks—is that, according to amendment 15, the focus on staff wellbeing relates only to whether patient care could be compromised. Our staff’s wellbeing and safety should be a concern at all times, not just when patient care is unsatisfactory. As I have said, staff operate in a fluid and dynamic environment and although everything may seem fine, well staffed and safe, that might change in a heartbeat. On that basis, I will oppose amendment 15.

I move amendment 3.

Jeane Freeman

I appreciate amendment 3’s valid aim to ensure that staff wellbeing is considered when ensuring adequate numbers of staff. With the bill, we seek to ensure safe and high-quality services. Success will create a virtuous circle of better outcomes for patients, together with improved wellbeing for staff. Evidence demonstrates that one affects the other.

An almost identical provision to amendment 3 in relation to staff already exists in health and safety legislation and we want to avoid replicating any duty that already exists in primary legislation. We must also be mindful that employment and health and safety law are reserved matters into which we should not stray.

I support the aims of amendment 3 and we already have a guiding principle that ensures the wellbeing of staff. However, given my concerns about the specific wording and the risk that it poses in terms of reserved legislation, I propose the replacement amendment 15, which answers the request of the Royal College of Nursing to include staff wellbeing in the duty on care service providers to ensure appropriate staffing, while aligning with the rest of the bill and, most important, keeping the primary focus of the legislation on the welfare of service users. I agree that staff wellbeing is crucial, but we should be looking at how it impacts on the service while maintaining our responsibilities in relation to reserved health and safety legislation.

I have no concerns about amendment 4, given the clear aims of the bill to secure safe and high-quality healthcare.

Amendment 5 is unnecessary because the term “health care” is already defined in proposed new section 12IG of the 1978 act as meaning

“a service for or in connection with the prevention, diagnosis or treatment of illness.”

Amendment 5 would duplicate that definition, so I ask the committee not to support it.

Amendment 16 lists factors that health boards should consider when fulfilling the general duty to ensure appropriate staffing. It responds to stage 1 written evidence from the RCN and the Royal College of Physicians of Edinburgh. It follows a similar format to the list for care services in section 6, and it requires factors such as local context and the needs of patients to be considered.

I point out that the reference in proposed new section 12IA(2)(e) of the 1978 act to having regard to “appropriate clinical advice” was suggested for inclusion by Alex Cole-Hamilton during the stage 1 debate. The Scottish Government’s position is that amendment 16, in conjunction with further references throughout the bill to the seeking of appropriate clinical advice, as defined in proposed new section 12IG of the 1978 act, is the appropriate way of ensuring that all staffing decisions are informed by clinical advice.

I therefore ask the committee to support the amendments in my name and not to support amendments 3 and 5.

George Adam (Paisley) (SNP)

I have listened to what the cabinet secretary and Alex Cole-Hamilton have said. If I am getting this right, I am concerned that amendment 3 could mean we are stepping into reserved health and safety legislation. If that is the case, is there not a way that we could work on the issue during the coming weeks to get it right?

I will back amendment 4, because it gets the balance right. It might be the case that we can have some kind of workaround or compromise for amendment 3. When we start moving into legislation that is not defined by the Scottish Parliament, we are getting ourselves into muddy waters and I want to make sure that we are in a safe place.

Emma Harper (South Scotland) (SNP)

I share George Adam’s concerns about encroaching on reserved legislation. Questions about health and safety, which is a reserved matter, versus what we can do in our devolved Parliament have come up in a lot of my constituency work. I am interested in making sure that we are clear that we do not encroach on reserved laws when we pursue our legislation.

The Convener

As no other members wish to speak, I call Alex Cole-Hamilton to wind up and to press or seek to withdraw amendment 3.

Alex Cole-Hamilton

I am not persuaded that amendment 3 would fail a competence test in respect of the Scottish Parliament or Scottish Government. The first letter in SHANARRI—the safe, healthy, achieving, nurtured, active, respected, responsible and included indicators—which we apply to getting it right for every child, stands for “safe”. It is not a reserved concept. Yes, health and safety legislation is reserved, but working in a policy context to make our staff safe should not be seen as outwith the purview of the Scottish Parliament. To that end, I press amendment 3.

The Convener

The question is, that amendment 3 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 3 agreed to.

Amendment 4 moved—[Alex Cole-Hamilton]—and agreed to.

Amendment 5 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 5 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 5 agreed to.

Amendment 15 moved—[Jeane Freeman].

The Convener

The question is, that amendment 15 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

Against

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 15 disagreed to.

Amendment 16 moved—[Jeane Freeman]—and agreed to.

The Convener

We move to the next group, which is on real-time staffing assessment and the risk escalation process. Amendment 17, which is in the name of the cabinet secretary, is grouped with amendments 17A to 17I, 107, 123, 39, 41 and 48 to 65.

Jeane Freeman

During the stage 1 debate, I undertook to lodge an amendment to place a more explicit duty on health boards, relevant special health boards and the agency to ensure that there are clear mechanisms for day-to-day assessment of staff needs, and clear routes for the professional voice to be heard in those assessments. I believe that amendment 17 and the other Government amendments in the group would achieve those aims.

Healthcare settings are dynamic working environments in which situations can change swiftly. The bill already places a duty on health boards, special health boards

“and the Agency to ensure that at all times suitably qualified and competent individuals are working in such numbers as are appropriate for”

ensuring

“the health, wellbeing and safety of patients, and ... the provision of high-quality health care.”

Amendment 17, which would insert new sections into the 1978 act, takes that a step further by placing a duty on those bodies to have

“in place arrangements for the real-time assessment of”

staffing requirements and

“for the identification ... of ... risks caused by staffing ... to the health, wellbeing and safety of patients ... the provision of high-quality healthcare, or ... in so far as it affects either of those matters, the wellbeing of staff.”

As is only logical, those criteria for compliance would mirror the criteria in the general staffing duty on boards in proposed new section 12IA of the 1978 act, which would have been amended by amendment 15, which we have already debated. Those criteria set out that a procedure must be in place that allows any member of staff to identify and report such a risk. A procedure must also be in place that allows the mitigation of such risks by the person with the lead clinical professional responsibility in that area.

Where it has not been possible to mitigate a risk at local level, amendment 17’s proposed new section 12IAB of the 1978 act would place a duty on health boards, relevant special health boards and the agency to have in place procedures

“for the escalation of ... Risk”

to the appropriate decision maker within the organisation, who would have to seek appropriate clinical advice, as necessary, in reaching any decision. That is in recognition of the importance of the professional voice in the decision-making process.

Amendment 17 was developed in collaboration with stakeholders from professional and trade union bodies, and with nursing and medical directors. During discussions about what the proposed amendment should seek to achieve, the feedback was that it should not only put in place a new process for real-time staffing assessment and escalation of risks but ensure that, where staff have highlighted a risk, they should receive feedback on any decisions that are made as a result.

With that in mind, amendment 17 sets out that decisions must be relayed to all those involved in identifying, attempting to mitigate or reporting the risk and to those who have given clinical advice. Any of those individuals may record disagreement with the decision that is reached.

That also applies at the level of the board. If, having offered their clinical advice to the board, a nurse director or medical director were to feel that they disagreed with the decision that was subsequently reached, they would have the ability to record that. Of course, any nurse or doctor would also act in accordance with their professional code, which would require them to note their disagreement. Amendment 17 would require boards to have in place a procedure to allow nurse directors, medical directors or any member of staff to record their disagreement.

Regard should be had to professional clinical advice at all levels of the organisation, and clear processes should be in place for transparency of decision making in the light of such advice. That is why I have ensured that the need for clinical advice is woven through every provision in the bill; it should not be a stand-alone provision and should not refer to just one person or a small number of people. The health board would also be required to raise awareness of the procedures among staff.

Amendment 39 would place a duty on the health board to include in its annual report details of how it had carried out its duties in relation to the new real-time staffing assessment and risk escalation provisions, thereby providing transparency and accountability for their delivery.

Amendment 41 clarifies that the guidance to which every health board and the agency must have regard may, in particular, include provision about

“procedures for the identification, mitigation and escalation of risks caused by staffing levels in arrangements put in place”

under proposed new sections 12IAA and 12IAB of the 1978 act. During discussions on the proposed amendment, the majority of stakeholders were keen to point out that they already have in place processes for staffing assessment and escalation of risks. They did not want to reinvent the wheel, and their preference was that the amendment should not be overly prescriptive in setting out the processes and procedures that must be followed. Furthermore, the bill needs to work across a variety of settings and to take account of the changing landscape brought about by integration. I am therefore keen to avoid placing too much administrative detail in primary legislation, as that would risk its being too inflexible. Such detail is better set out in guidance that can be amended over time should changing needs require it.

Amendments 48, 49, 50, 52, 53, 54, 55, 56, 58, 59, 60, 62, 63 and 64 would insert references to proposed new sections 12IAA and 12IAB of the 1978 act into section 5. In doing so, they would apply the provisions that are set out in those proposed new sections to the special health boards that provide clinical health care—the State Hospitals Board for Scotland, NHS 24, the National Waiting Times Centre board and the Scottish Ambulance Service board—by amending their governing secondary legislation.

Amendments 51, 57, 61 and 65 are technical amendments. Section 2 of the bill places three duties on health boards and the agency: one to

“have regard to the guiding principles”

and two on health boards when commissioning health services from other providers. References in the bill to section 2 refer to the duties to capture all three. The amendments would therefore change the references in section 5(3)(b), section 5(6)(b), section 5(9)(b) and section 5(12)(b) respectively from “Duty” to “Duties”, to clarify that all three duties apply to the special health boards that are covered by section 5.

I turn to amendments 17A to 17I, which have been lodged by Mr Stewart. I am happy to accept the majority of the amendments. However, amendments 17D and 17I are unnecessary.

Scottish Government amendment 39 will, as I have just described, add the duty to have in place a real-time staffing assessment and a risk escalation process to the list of duties that health boards and the agency must report on under proposed new section 12IE of the 1978 act.

Amendment 39, coupled with amendments 37 and 38, which are to be debated under group 14, sets out that health boards and the agency will, within one month of the end of the financial year, each have to

“publish, and submit to Scottish Ministers”

a report

“setting out how during that financial year it has carried out its duties under”

the new sections on risk assessment and escalation. I therefore ask Mr Stewart not to move amendments 17D and 17I.

Amendment 107, which was also lodged by Mr Stewart, sets out that:

“Every Health Board and the Agency must establish a risk management protocol ... to—

(a) identify,

(b) monitor, and

(c) assess,

risk associated with complying with the”

general duty. In essence, much of what is suggested in amendment 107 is already covered in proposed new section 12IAA of the 1978 act, “Duty to have real-time staffing assessment in place”, and proposed new section 12IAB, “Duty to have risk escalation process in place”, which I mentioned when speaking to amendment 17.

My intention is to set out in guidance, rather than in primary legislation, the steps to be taken by a health board or the agency to mitigate any risk associated with complying with the general duty in proposed new section 12IA of the 1978 act. That would allow greater flexibility, particularly as we move towards multidisciplinary and multi-agency working, which might open up new avenues for dealing with some of our current staffing issues.

With that in mind, I ask Mr Stewart not to move amendment 107. However, I would be happy to meet him to discuss whether proposed new sections 12IAA and 12IAB of the 1978 act could be amended in a way that might satisfy his wish to see health boards put in place some kind of risk management protocol setting out the actions that individuals with the lead clinical professional responsibility may take to mitigate risks locally.

I am afraid that I cannot support amendment 123, which was lodged by Miles Briggs. Although I understand and agree with the intent of the amendment, it raises a number of concerns. First and foremost, much of what the amendment seeks to achieve can already be achieved through Scottish Government amendment 17. Through the proposed new sections on real-time staffing assessment and risk escalation, any member of staff will be able to report if they feel that the health board is not complying with the general duty, and action will then have to be taken to mitigate that or reasons will have to be provided for not doing so. If it is not possible to mitigate a risk locally, it will have to be escalated up through the organisation, with those making decisions having to take appropriate clinical advice before doing so. All those involved in identifying, reporting, escalating or providing clinical advice on a risk must be informed of any decision that is made as a result, and there will have to be a procedure in place that allows them to record their disagreement with the decision if they wish to do so.

It seems to me that amendment 123 is, in essence, about ensuring that the professional voice is heard. I am very much in agreement with that aim, and proposed new section 12IB of the 1978 act, “Duty to follow common staffing method”, already includes a duty to have regard to “appropriate clinical advice”. If amendment 17—alongside amendment 16, which we have already debated—is accepted, the general duty for health and the duty to have in place a risk escalation process include duties to have regard to appropriate clinical advice.

A further concern relates to how amendment 123 attempts to delegate operational responsibility without also delegating legal accountability. Who would be held accountable if something went wrong when the health board had carried out all the procedures and had followed the advice of the relevant designated person to the letter? The amendment would create basic legal uncertainty on that vital point. We would also need to be clear about how the provision sat alongside existing professional duties.

I see merit in ensuring that there is clarity about who can offer clinical advice when a decision is escalated all the way to the board and in ensuring that the board must seek that advice, have regard to it and clearly identify how it has informed the final decision. However, it is important that it is clear that final accountability must sit with the board, because no decision can be taken in isolation.

Were we to agree to amendment 123, we would risk the role of the health board being compromised in that a designated person would be responsible for carrying out the functions that will, in fact, be given to the health board through the bill. The amendment would further undermine the bill by allowing that designated person to sub-delegate their functions to someone who, in their opinion, was suitably qualified and competent. In the 1978 act, the board is a legal entity. To have a single board member named in the bill would create confusion in relation to any future instance when it was believed that the legislation was not being implemented and a court decision was sought. The nurse director has a responsibility to provide clinical and professional advice, as does the medical director, and guidance and directions from ministers are used to set out how a board complies with its legal duties through those individuals.

I have said that I understand and support the intention behind amendment 123, but it is crucial that we get right the detail of any amendment that addresses such a fundamental point. For all the reasons that I have discussed, I am not comfortable that amendment 123 is right. For that reason, I invite Mr Briggs to work with me in advance of stage 3 to develop an amendment that we are both content with and that meets what, I believe, is our shared aim of strengthening the professional voice in decision making.

Subsection (1)(d) of amendment 123 sets out that

“Every Health Board and the Agency must ... make arrangements for the purpose of informing patients and staff of staffing levels.”

I am keen to hear how that might work in practice. Staff numbers alone are not an indicator of the quality of the service; other factors, such as the skills mix of staff, also need to be considered. As I have said, health settings are dynamic environments and, as such, staff might move from one ward to another to deal with changes in demand throughout the day. I therefore find it difficult to see how staff and patients are to be kept up to date with staff numbers in that dynamic situation.

That said, I have lodged a number of amendments that aim to strengthen the reporting mechanisms in the bill. If, as I presume, Mr Briggs’s aim is to provide patients and staff with an indication of how well services are running, I would be happy to discuss strengthening the section even further by including a duty to publish the details of how health boards and—where appropriate—wards perform against outcome measures.

I therefore ask Mr Briggs not to move amendment 123. If he does, I invite the committee not to support it on the understanding that I wish to work with him in advance of stage 3.

I move amendment 17.

David Stewart

Amendment 107, which is in my name, seeks to achieve a similar aim to that of amendment 17, which has been lodged by the cabinet secretary. It is crucial that health boards and healthcare providers have in place processes and measures to assess and mitigate the possible risks to their duty to supply appropriate staffing. Such risks could be short term—for example, members of staff being unable to work because of illness—or there could be longer-term challenges, including difficulties in recruiting and lack of available staff to fill vacancies nationwide. Amendment 107 could allow for more flexibility in local arrangements: it explicitly references the ability for staff to seek “local resolution” of a possible risk.

It is also important that any risk management or escalation process be appropriate and accessible for staff. It is crucial that staff feel that the process works for them, that their concerns are noted, escalated and dealt with, and that individual staff members are not placed in circumstances in which they need to operate in unsafe environments, or held responsible for adverse incidents that are caused, ultimately, by managerial or financial decisions that have been taken at a higher level. That said, if the Government is prepared to accept my small amendments to amendment 17, I will be satisfied and will not move amendment 107.

Amendment 17A would close a small gap in the process that is set out in the Government’s amendment 17, in that any process must set out how individual staff members and employees can notify the relevant person of the risk in the first instance. Just stating identification does not explicitly include that step.

Amendments 17B and 17E would change the reference from

“the individual with lead clinical responsibility”

to “an individual”, in order to ensure that the definition is flexible enough.

Amendments 17F and 17G would ensure that decision makers must not only seek but take into account clinical advice, so that decisions are not justified purely based on finance.

Amendments 17I and 17D seek to establish a feedback loop in order to ensure that any nationwide risk can be recognised.

Amendments 17C and 17H would require health boards to go further than merely raising awareness of risk management processes, and to ensure that employees know how to use them and feel equipped to do so.

Miles Briggs

Amendment 123 would place a duty on each NHS board to

“designate a person ... to carry out functions”

on its behalf in relation to the staff groups that are mentioned in it. It is right that NHS boards be made organisationally accountable for duties under the bill. Decisions on staffing are affected by many factors, including patient demand, workforce capacity and capability, finance and the NHS estate. Executive orders will cover responsibility for those matters, but the entire NHS board will remain accountable. As the cabinet secretary has outlined, the 1978 act already places on NHS boards specific duties on quality, workforce planning and health improvements.

I believe that nursing leaders have the particular skills, knowledge and experience that are needed to exercise sound professional judgment in setting nursing staff levels, managing nursing-related risks to the duty, ensuring appropriate staffing, and escalating significant concerns within the NHS board. For that reason, each board should appoint a designated person in nursing and midwifery to carry out functions on its behalf.

The professional judgment, advice and actions of nursing leaders must be placed on a statutory footing in order to guarantee that NHS boards can make informed clinical decisions in relation to their duties under the bill. The Health and Sport Committee’s report looked for an “accountable person” to ensure that the accountabilities in this area remain firmly at corporate board level, which is important.

In the light of what the cabinet secretary has said, I am happy to work with her on an amendment to which we might all agree.

Emma Harper

I would like to make a small contribution on amendment 17, with regard to the proposals around a real-time staffing assessment and risk-escalation process.

As a former operating room and trauma nurse, I know that things can change swiftly and that it is important to be able to have all hands on deck. Therefore, I welcome the proposal to add a real-time staffing assessment and risk-escalation process, because I understand that people need to be able to make split-second decisions if they are to provide safe and high-quality care.

I also welcome the cabinet secretary’s comments regarding the wider health and social care approaches, because the bill is not concerned only with acute care; it concerns care across the whole of health and social care. I support the idea of being flexible rather than being too prescriptive in the primary legislation, so that guidance for allied health professionals across health and social care, in primary as well as acute care, can be developed later.

Sandra White

I have concerns about amendment 123 in the name of Miles Briggs, but I note that the cabinet secretary and Miles Briggs have agreed to work together on another amendment. My concerns relate to the possibility that the confidence of boards will be knocked slightly by the proposal in the amendment relating to a designated nursing or midwifery person. I assume that Miles Briggs will not move the amendment, so I look forward to seeing what he and the cabinet secretary come back with.

The Convener

I invite the cabinet secretary to wind up.

Jeane Freeman

I have nothing more to say, other than to thank Miles Briggs and David Stewart for their willingness to work with me before stage 3.

The Convener

I invite David Stewart to say whether he wishes to press amendment 17A.

David Stewart

In the light of the cabinet secretary’s comments, and because I know that she is, in part, accepting my proposals, I am happy not to press amendment 17A.

Amendments 17A to 17I not moved.

Amendment 17 agreed to.

The Convener

The next group of amendments is on the duty to ensure appropriate staffing in respect of agency workers. Amendment 80, in the name of Anas Sarwar, is the only amendment in the group.

David Stewart

Unfortunately, my colleague Anas Sarwar has not been able to make it to the meeting. With the committee’s agreement, I will speak briefly to amendment 80, in his stead.

Amendment 80 is designed as a probing amendment and, therefore, is to spark debate, which I think has been welcomed by the cabinet secretary. Although the amendment is supported in principle by stakeholders, I understand and share the concerns that have been expressed about a number of unanswered questions.

The fact is that we have to find an acceptable way of moving forward on the matter. Audit Scotland has shown that agency nurses are being paid three times what NHS nurses are paid, and it has been reported that in the health board in my area—NHS Highland—some locum consultants are earning the phenomenal sum of £400,000 a year. Amendment 80 therefore seeks to cap what an agency can charge, not what a health board can spend in total. I recognise the important role that agencies play, given the workforce crisis that we face, but Anas Sarwar’s clear point is that private companies should not be exploiting the NHS and the public purse.

The 150 per cent figure that is set out in amendment 80 comes from a directive to boards in England and Wales. Obviously, responsibility for health is fully devolved to Scotland, but I do not see why we should not follow best practice that we might see in other parts of the United Kingdom.

It is right that the Scottish Government act to limit that spiralling spend. Workforce tools might well encourage more use of agency staff in understaffed wards in order to avoid their being shut down or beds being closed, but it is important that some protections be built into the bill. One of the primary reasons for the overspending in boards, including mine in the Highlands, is spend on agency staff.

I accept that there are wider issues to take into account, but amendment 80 would represent a start by putting in place a limit or cap on agency spending.

I move amendment 80.

Miles Briggs

I am very sympathetic to amendment 80. I appreciate that the member who lodged it is not with us this morning, so before we vote on it, I must seek clarification. Specifically, does the 150 per cent limit that is proposed include agency fees? If so, that might have an unintended consequence for, or a knock-on effect on, individual agency staff’s take-home pay. Does Mr Stewart have any information on that?

The Convener

Before I ask Mr Stewart to wind up, I must ask the cabinet secretary whether she wishes to comment on amendment 80.

Jeane Freeman

I thank Anas Sarwar for lodging amendment 80, and I agree with him that it is not appropriate for private companies to make such profits at the expense of our national health service. However, the Scottish Government and NHS boards have given much thought to the issue, so I have to disagree with Mr Sarwar’s proposed approach. I will outline some of my concerns in that respect, but at this stage I ask that amendment 80 not be pressed, and suggest that Mr Sarwar and I look at whether we can reach agreement on an amendment for stage 3.

Currently, by the time that health boards go to an agency, that action will have been processed through existing enhanced governance arrangements. That means that other options, including use of overtime and bank staff, will have been exhausted and that the only way to provide cover is through use of agency staff. Decisions about agency use will always be signed off by a senior member of clinical staff. If the decision is taken to use agency staff, that will have been because the advice from a senior clinical professional was that patient safety was likely to be compromised if an appropriate staff member was not secured. Patient safety has to be the cornerstone of our approach.

We already have a preferred-supplier contract that the agencies that we use most are invited to join. Agencies on that contract supply NHS Scotland staff at rates that are similar to NHS rates of pay, which means that pay rates are capped for those who are on the contract. That also caps the commission rates that agencies on the framework contract receive in order to ensure that they cannot make exorbitant or surplus profits for supplying the NHS with key front-line staff. NHS boards have been instructed by chief executive letter to source, in the first instance, only from agencies that are on that contract, but we know that if a nurse cannot be supplied through the contract, one will need to be sourced from an agency that is not on the contract.

The amendments that I have lodged to create duties to have in place real-time staffing assessment and a risk-escalation process will reinforce the position that appropriate clinical advice needs to be sought as part of the risk-mitigation process, including if the risk is being mitigated through use of agency staff. Guidance will set out more detail on that, including on the circumstances under which it will be acceptable to resort to use of agency staff, and on the board-level sign-off process that I expect to be in place for procurement of agency staff, and monitoring of same.

The proposed break-glass provision in amendment 80 sets a potentially very high bar. What circumstances would be classed as “exceptional”? If the bar were to be set too high, that could undermine the principles of the bill with regard to safety, and it might lack the flexibility that is needed to ensure safe staffing. Let us be honest: if a board comes to me with a request to pay over the cap because it urgently needs a nurse in an intensive care unit, I will defer to the clinical opinion of the nurse or medical director. I am sure that members would expect me to do precisely that. I would prefer that a board spend its time sourcing an agency nurse and doing everything in its power to ensure the safety of the service, to its going through an additional bureaucratic process to seek my approval.

I note that a similar approach has been taken in England, although not through legislation, with the recognition that there needs to be a break-glass clause to ensure safety and continuity of service. That break-glass clause is used extensively, and nursing agency spend is around three times higher per head in England than it is in Scotland.

Given the amendments that I have lodged on real-time staffing assessment and risk-escalation processes, and the need to ensure that we take an effective and proportionate approach to reducing agency spend, I ask the committee to reject amendment 80 on the understanding that I will work with Anas Sarwar to explore whether there is a way in which we can agree the best approach to addressing the issues, including the associated escalation and governance of the process at board level in order to ensure that staffing decisions are taken at the highest level.

David Stewart

I agree with the cabinet secretary that the issue is vital. However, on the basis and understanding that she will meet my colleague Anas Sarwar, I will not press amendment 80.

Amendment 80, by agreement, withdrawn.

The Convener

The next group of amendments is entitled “Duty to ensure appropriate staffing: sufficient number of healthcare professionals”. Amendment 90, in the name of Alison Johnstone, is the only amendment in the group.

Alison Johnstone (Lothian) (Green)

Amendment 90 would ensure that, where ministers have commissioning powers, enough student places are offered to train a workforce that will better ensure that we deliver the healthcare that will meet Scotland’s changing needs. I imagine that we are all agreed that the bill is a starting point. Any Scottish Government must, and will surely, want to take some responsibility for ensuring that Scotland has the right number of registered nurses, midwives and medical practitioners to deliver the healthcare that Scotland needs.

In September last year, more than a third of all nursing and midwifery vacancies had been vacant for three months or more. Although I accept that there has been some improvement, in June last year, the nursing and midwifery vacancy rate was 5.3 per cent, which was more than 3,000 whole-time-equivalent posts, and was the highest number of vacancies ever recorded. ISD Scotland tells us that turnover has been increasing for several years due to the increasing number of leavers in each year.

Amendment 90 would also require the Scottish ministers to take into account NHS boards’ reports when commissioning places. It is clear that ministerial decisions have an impact on providers’ ability to have appropriate staffing. The amendment would also require ministers to report to Parliament on commissioning of nurses, midwives and medical professionals.

I move amendment 90.

Alex Cole-Hamilton

I thank Alison Johnstone for lodging amendment 90. I considered lodging a similar amendment, so she has the Liberal Democrats’ enthusiastic support.

Jeane Freeman

To ensure appropriate numbers of health professionals, there needs to be robust evidence of the workload that will be required to provide high-quality care, and evidence of the appropriate staffing levels and skills to deliver that. The bill’s purpose is to create a framework through which health boards can generate and use that evidence consistently. Once boards are using the common staffing method effectively and consistently, and reporting on it, that will—of course—inform national planning.

Later, I will speak to an amendment that will require the Scottish ministers to report on how the information that boards generate as part of that process has been taken into consideration in setting national staffing policies. That is the proportionate way to link the bill to wider workforce planning.

The commissioning of student intake in relation to nursing and midwifery already takes into account the available data, and is agreed by consensus by the nursing and midwifery stakeholder reference group. The Scottish ministers do not have the power to direct universities to take specific numbers of students. Once we have agreed, with the reference group, what is required, we provide funding for that number of places at universities throughout Scotland, and that funding is then allocated to individual universities by the Scottish Further and Higher Education Funding Council. Universities receive funding only for the places that they fill, which incentivises them to offer the maximum number of places, but we do not have the power to make them do that.

The process requires a projection of what might be needed. Of course, improving the data that we use to do that will help, but I say with the best will in the world that we cannot project for every possible circumstance. Ensuring that we have the right number of staff available is a complex issue that is not just about setting the number of student places: it is also a recruitment and retention issue, and there is an onus on employers to seek to incentivise and grow their staff, as is happening in health boards across Scotland.

The cumulative effect of the bill’s provisions will help us to address the issue. The bill recognises that the Scottish ministers, health boards, integration authorities, universities and colleges all have roles. I am happy to commit to working with Alison Johnstone and others to ensure that the reporting duties that will be placed on health boards and the Scottish ministers will create the transparency that is needed for effective workforce planning. On that basis, I ask her not to press amendment 90.

Alison Johnstone

We all agree that workload and workforce are absolutely inextricably linked. The fact that we are debating amendment 90 shows that it is within the scope of the bill.

However transformative or efficient workforce planning tools might be, we cannot apply them adequately if we simply do not have in place appropriate numbers of staff. I appreciate the cabinet secretary’s point that the tools will help us to ensure that we have appropriate numbers of staff in place in the future, but I think that the two issues go hand in hand. We cannot continue to put all the focus on the providers. If we want a partnership approach, it is clear that the partnership involves the Scottish Government. Our health boards cannot ensure that enough staff are in place if not enough nurses, midwives and doctors have been trained. We are all aware of what has happened previously, when ministers have decided that X nurses will be trained. There is a knock-on consequence. The more the decision is a joint one, the better.

In a 2017 iMatter survey, only 27 per cent of nursing and midwifery staff agreed that there were enough staff to enable them to do their jobs properly, so it is an important issue. It takes 13 years to make a general practitioner, so we must get a grip on the issue now. We cannot afford to wait until we have more information. The information that we have in front of us—we all hear from constituents who simply cannot get an appointment with a GP—is such that we must act together, and we must act now.

It is right that the Scottish Government should play as large a part as possible, and take the responsibility for ensuring that Scotland’s NHS has an adequate supply of appropriately trained nurses and medics. Therefore, I intend to press amendment 90.

The Convener

The question is, that amendment 90 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 90 agreed to.

The Convener

The next group is entitled “Duty on Health Boards to ensure appropriate staffing: senior nurses”. Amendment 91, in the name of Alison Johnstone, is the only amendment in the group.

Alison Johnstone

Amendment 91 seeks to ensure that senior charge nurses and their equivalents in community teams have the time that they need to carry out their important clinical leadership role. Senior charge nurses are key to the on-going delivery of safe care—indeed, they are key to the successful implementation of the bill. The Royal College of Nursing supports amendment 91 whole-heartedly. It has told me, and I am sure that it will have advised colleagues, that senior charge nurses must be given the time that they need to fulfil their clinical leadership role by not being counted in the number of nursing staff who are required to provide direct care to patients.

Amendment 91 seeks to ensure that the non-case load holding status of nurse leaders—senior charge nurses—is fully realised in practice.

I move amendment 91.

Alex Cole-Hamilton

I thank Alison Johnstone for lodging amendment 91, and I absolutely agree with what it seeks to do. It speaks to the dynamic nature of the theatre of operations that our nurses work in. In the past, we have expected far too much of our senior charge nurses when it comes to case load holding. As a result, they have not been able to take a strategic overview of the health, safety, cleanliness and wellbeing of their patients and their staff. For that reason, I support amendment 91.

Emma Harper

I support the approach that senior charge nurses and the management team take to workforce planning. As somebody who has worked on the front line, where senior charge nurses have the flexibility to support patient care, to carry out their clinical duties and to support student nurses and mentoring across the board, I believe that, because of the dynamic differences in case load that exist—in some places, senior charge nurses work across health and social care—amendment 91 would be too prescriptive.

We need to allow senior charge nurses to be empowered and flexible and to make decisions in their individual areas, for example, in relation to chemotherapy or the operating room. In my experience, sometimes, senior charge nurses have to step in because, at that moment, they are the person who has the experience. I support the ability to be flexible in the approach across health and social care, allowing senior charge nurses to be empowered and make individual choices based on their clinical expertise.

Brian Whittle (South Scotland) (Con)

I am generally supportive of amendment 91, but I seek some clarification, which Alison Johnstone might be able to provide when summing up. To follow up on Emma Harper’s point, I believe that the amendment would not preclude a senior charge nurse from taking on case load in certain circumstances, given that, as Alex Cole-Hamilton said, it is such a fluid environment. Perhaps Alison Johnstone can clarify that point.

Jeane Freeman

I understand that the RCN is keen for the role of the senior charge nurse to become non-case load holding and I have had several discussions with the college on that point. However, my view is that, to put such a provision in primary legislation, which is what amendment 91 would do, would be inappropriate. It would be inflexible and would not recognise the multidisciplinary approach or the different local contexts in which healthcare is provided across Scotland.

Although it might be appropriate for a senior charge nurse in a large ward to be non-case load holding, it might not be appropriate for someone in the same role in a small ward with very few staff. I saw that for myself on Friday, when I visited my local community hospital, where the senior nurse was very definite that she believed that her clinical leadership and case-load roles are complementary.

In addition, as I have said before, the bill is not only about nurses; it covers a variety of professions. Although the majority of the current tools for use as part of the common staffing method cover nurses and midwives, that will change over time. Amendment 91 applies only to nurses and does not provide a mechanism to include other staff groups in the future. I cannot support such a narrow nursing-only provision in a bill that takes a multidisciplinary approach to staffing by covering all staffing groups, and for which we have already accepted amendments that define what that multidisciplinary approach should be, as promoted by Alex Cole-Hamilton.

To illustrate the kind of problems that such a narrow nursing-only provision might cause, I want members to consider the evolving multidisciplinary nature of teams. For example, in rehabilitation or re-enabling services, the clinical team leader is not necessarily a nurse, but might be a physiotherapist, or anyone from a team that comprises nurses, physios, occupational therapists and speech and language therapists. Surely there should be flexibility to ensure that the appropriate person is given time to undertake the leadership role?

Another potential unintended consequence, which is important and worth mentioning, relates to the ability to maintain clinical competence. It is essential that senior charge nurses maintain their clinical competence in care delivery in order to maintain clinical credibility and to provide effective supervision and oversight of clinical care. It would be much harder to do that if they were entirely non-case load holding.

The issue of senior charge nurses being non-case load holding has been discussed with the Scottish executive nurse directors group. I understand that, at the group’s meeting last Friday, it discussed the amendment and indicated that it did not support it, for the reasons that I have described. It is important to listen to those nurse directors from across our health boards.

The Scottish Government has lodged amendment 20, which we will discuss when we come to group 11, with the aim of achieving a position that is consistent with our multidisciplinary approach, by setting out an additional step in the common staffing method, requiring consideration of the role and professional duties of lead clinical professionals, which covers all professions, and not just nursing. Given that the committee will vote on amendment 91 in Ms Johnstone’s name before we reach group 11, I will take a minute to outline what amendment 20 does, so that members are aware of the alternative before we come to the vote.

Amendment 20 aims to recognise the unique roles and responsibilities that are placed on all clinical team leaders. It ensures that, in carrying out the common staffing method, health boards and the agency must take into account the role and, in particular, the professional duties of any individual with lead clinical professional responsibility for the particular type of healthcare whose staffing levels are being set. The Scottish executive nurse directors group supports that approach, because it believes that it clearly articulates the role of the clinical leader in the common staffing method.

Guidance will set out the detail of what that will mean in practice but, in essence, it means that boards will have to carefully consider whether, in their circumstances, and given the other duties that they are expected to carry out, it is appropriate for clinical team leaders to have a case load. The decision that is reached on that will then have to be factored in when the health board sets out its staffing establishment for the coming period.

It is worth noting that, as part of the common staffing method, account is to be taken of appropriate clinical advice. That clinical advice is to cover all the steps in the common staffing method, not just the final output. Senior clinicians will therefore always be directly involved in decisions about whether it is appropriate for clinical team leaders in their area to hold case loads.

For those reasons, I ask Ms Johnstone not to press amendment 91, and if she does, for the committee to reject it, knowing that we will come to amendment 20 in group 11, which I hope the committee will support.

Alison Johnstone

I thank colleagues for their comments and questions.

On Mr Whittle’s point, senior charge nurses should not be expected to be case load holding. They should not constantly have to plug gaps because of a lack of other staff.

It is correct that amendment 91 addresses senior charge nurses alone, but we have to take into account the fact that nursing and midwifery staff account for 42.6 per cent of the NHS workforce, and so are the largest group. The title of the proposed new section makes it clear that it is about them and the roles that they are meant to undertake.

I appreciate Emma Harper’s personal experience, but the RCN has not presented the amendment on a whim. It has done so after a great deal of consultation and discussion with our nursing and midwifery workforce. Whether in a small community hospital or a bigger ward in a city hospital, from chemotherapy to the operating theatre, rostering should be appropriate anyway, and the unique role of senior charge nurse should be properly supported. Senior charge nurses are involved in things such as complex discharges and other issues around flow. If they have time to spend on that co-ordinating role, that can help to reduce issues such as delayed discharge and improve co-ordination and communication across teams. Senior charge nurses are expected to manage and develop the performance of a nursing team and to manage the practice setting by ensuring the effective use of resources and workforce planning through monitoring workloads.

Sandra White

Will Alison Johnstone take a small intervention?

Alison Johnstone

I will.

Sandra White

From the start of the bill process, the committee has worked hard to ensure that it is multidisciplinary and not just about acute services or nursing. Many people who work in hospitals take on many responsibilities. I do not mean any disrespect to anyone and I give credit to all the people who work in the health service, but there are many more people than just senior nursing clinicians. That is where I have a problem with amendment 91. As the cabinet secretary said, there are multidisciplinary teams of professionals, so why should we concentrate on just a small part of those?

Alison Johnstone

The senior charge nurse role applies only to nursing, and nursing makes up more than 42 per cent of the NHS workforce. Such nurses help to co-ordinate inputs from different members of the multidisciplinary team. It is a key role. Having worked with the Royal College of Nursing to ascertain the impact, I will press amendment 91. If the role is properly focused and those experienced professionals are allowed to do their job to the utmost, it could have a positive effect.

Emma Harper

Will the member take another intervention?

Alison Johnstone

Certainly.

Emma Harper

Under amendment 91, it would be mandatory to remove the case load from senior charge nurses. My point is that senior charge nurses should already be empowered and able to be flexible in their choices on how they roster staff.

Alison Johnstone said that, if senior charge nurses do not have a case load, that should allow them to support training. In my experience, they can still support training if, for instance, they are scrubbed and at the operating table to remove a gallbladder, because they can conduct, guide and support people in that environment.

Amendment 91 is too prescriptive. There is such a wide range of health professionals and senior charge nurses in many areas, and those in the senior charge nurse role should be empowered to choose whether to pick up a case or assign it. Wide-ranging skills are required. Senior charge nurses should be allowed to make those informed clinical decisions, so we should not prescribe their role in the bill.

Alison Johnstone

Only a quarter of nursing staff in Scotland surveyed by the RCN in 2017 reported that the senior charge nurse was non-case load holding. The results of a freedom of information request to NHS boards from the RCN show that, of the 911 whole-time equivalent senior charge nurses identified at September 2017, only 115 were non-case load holding. We are struggling to recruit and retain nurses. We should work towards having an experienced professional in charge of a ward, giving leadership and security and helping others to develop their careers.

Miles Briggs

Will Alison Johnstone take a short intervention?

Alison Johnstone

Certainly.

Miles Briggs

I am incredibly sympathetic to what Alison Johnstone is trying to achieve with amendment 91, but none of us wants to write poor legislation. It is important for the delivery of the outcome of the bill that we have non-case load holding staff within its parameters. Given that amendment 20, which the cabinet secretary referred to, aims to develop that, and the overlap with potential work for stage 3 on getting the designated person right, it may be possible to do some work on the issue before stage 3 to ensure that the measures are incorporated in the bill. It is an important aspect, but there seems to be a bit of confusion.

Alison Johnstone

I have concerns that we may water down the approach considerably. On that basis, I will press amendment 91.

The Convener

The question is, that amendment 91 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 91 agreed to.

The Convener

The next group is entitled “Duty on Health Boards to ensure appropriate staffing: training”. Amendment 124, in the name of Alison Johnstone, is the only amendment in the group.

Alison Johnstone

Amendment 124 is the third amendment in my name this morning. It aims to place a duty on NHS boards to ensure that employees receive the time to carry out continuing professional development.

NHS governance standards already state that employers will give time to staff for CPD, but as we are all too well aware, that precious time is often lost because of the high demands on staff time.

The “RCN Employment Survey 2017” reported that the main reason that nursing staff feel that there are too few opportunities to progress in their current job is that there are too few opportunities to access training and development. There are real difficulties in that respect. Nursing staff simply feel unable to take time off for training due to the many demands that they face in their work.

With that, I move amendment 124.

Emma Harper

I will not say a lot about amendment 124, but will just point out that in my former role as a nurse educator, I managed to get NHS Dumfries and Galloway to put in place four educators to support education and facilitate continuing professional development. In my current work, I have been looking at the education that is being provided out there, and I suggest that we do not put what is set out in the amendment in the bill until we can get a real assessment of the education and support that is being provided.

I understand the challenges facing nursing staff in being able to access CPD while they are on the ward and are being pulled in different directions, but I suggest that we have a further look at the situation with education across health boards. I know that in the health board where I worked—NHS Dumfries and Galloway—particular efforts were being made to accommodate more focused CPD for the staff.

Brian Whittle

Amendment 124 is an incredibly important amendment that we should support. With regard to CPD, the committee is very well aware of the pressure being put on paediatric wards in affording all staff the opportunity to have cardiotocography scan training and development, but it is incredibly important not just for the staff themselves and for patient safety but for staff retention that they are allowed to develop continually.

George Adam

I just want to back everything that my colleague Emma Harper has said. On three or four amendments, she has given us her point of view as a professional who has worked on the front line. She provides a valuable resource for the committee, but on each occasion, the majority of the committee has not really taken on board what she has had to say. I simply want to back Emma Harper’s position on amendment 124 not for the obvious reasons but because she has been on the front line and knows exactly what is going on out there.

Jeane Freeman

I thank Alison Johnstone for her opening remarks on amendment 124. The amendment itself mirrors section 7, which relates to the care side of things, but I should point out that that section was inserted because the bill seeks to revoke regulation 15 of the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011 and, in so doing, revokes important provisions on staff training. It was therefore felt necessary to replicate those provisions in the bill to ensure that care service staff still had the same rights to training and development as they had before.

However, health is a different regulatory environment. I am very supportive of amendment 124’s aim of ensuring that healthcare staff have similar rights to training, but I have a number of reservations about the amendment itself. The National Health Service Reform (Scotland) Act 2004 inserted into the 1978 act section 12I, on the duty in relation to governance of staff, and the staff governance standard was published to support that. That standard already requires all NHS boards to demonstrate that their staff are appropriately trained and developed and goes on to provide some detail in that respect, and it is, of course, subject to significant scrutiny and work by the partnership forums, which are central to how we work in our NHS. The amendment therefore duplicates, in part, something that already exists in the standard. I gently suggest to the committee that we do not make good law by duplicating what we find elsewhere.

Furthermore, I have concerns about the extremely wide scope of amendment 124. If we take account of ever-changing health technologies and treatments, the legislative entitlement would be open ended and unquantified, so I question how the entitlement would be managed. For instance, who would decide and how would it be decided which staff should get priority for further qualifications that are deemed to be appropriate for work? Do the educational development sectors have the capacity to deliver what would be required? In that regard, the comments that were made by Ms Harper are very pertinent.

Staff should receive training and should continue to be developed throughout their careers—I have absolutely no argument with that point. However, making it a legislative entitlement in the way that is suggested is not the correct thing to do. I have serious concerns about whether it will be feasible—or, indeed, possible—to maintain safe and high-quality services if growing numbers of staff are released for an open-ended and unpredictable amount of training and development.

As part of the development of each of the workload tools, the amount of time that staff should spend training has been factored into the tool. For the existing tools for nursing and midwifery, there is an allowance of 2 per cent, which equates to 33 hours each year for a whole-time-equivalent nurse. Since the allowance has been factored into the tools, I expect boards to ensure that staff receive it, and if they do not, I want to know why.

Therefore, I am happy to commit to working with Ms Johnstone, should she wish it, and with the RCN and others with an interest, to consider what might be done to make the common staffing methodology more explicit about the built-in time for training and the need for boards to meet it. I feel strongly that it is an important issue and one which must be addressed, but the correct way to go about it is not to put what is, in effect, an open-ended proposition into primary legislation.

On that basis, I ask Ms Johnstone not to press the amendment and, if she does, I ask the committee not to support it.

The Convener

I call on Alison Johnstone to wind up and press or seek to withdraw amendment 124.

Alison Johnstone

I will start by addressing Brian Whittle’s comments. I agree whole-heartedly that ensuring that our staff have adequate time to develop themselves professionally will empower them and make sure that they are educated in the latest innovations and developments in their field. It will help us to recruit and retain people; it will make them feel valued.

George Adam is absolutely right to say that Emma Harper is a valuable resource to the committee and the Parliament who reflects the experience that she has gained working in nursing. However, it is also true that, in a large workforce such as nursing, there are different views and experiences, perhaps as a result of geography or the management that people experience, so it is important that we try to look at the issue as widely as possible.

Emma Harper

Will you take a wee brief intervention?

Alison Johnstone

Certainly.

Emma Harper

Continuing professional development and education are provided in lots of different ways, off and on the ward, in the community or through self-directed learning as part of a professional nurse’s approach. For nurses, it is not often done in work time, but there are other health professionals who might require bedside, on-the-job training.

There is a wide approach to delivery of appropriate learning for developing clinical skills so, again, it is not required to put it into primary legislation when amendment 20 describes a more flexible approach to the training of staff. I support guidance following the introduction of the bill so that we can continue to focus on how we best provide education with regard to recruitment, retention and staff development.

Alison Johnstone

During an inquiry that was conducted when I was a member of this committee, we heard from the chair of the British Medical Association—I cannot quite recall on what occasion that was—and he spoke about the fact that medics have protected time for training. He was favourable to and supportive of the idea that that should be enjoyed by colleagues in nursing as well. The 2017 RCN UK employment survey reported that the main reason that nursing staff feel that there are too few opportunities to progress is that there are too few opportunities to access training and development.

I appreciate Emma Harper’s comments about learning in one’s own time and self-directed learning, but there is something invaluable about setting aside specific time for such important work—it shows appreciation.

I appreciate the cabinet secretary’s comments too, but, with respect, this is not an open-ended commitment. We are talking about appropriate training, which is what we have in place at the moment.

In the Scotland staff survey in 2015, 22 per cent—almost one quarter—of nursing and midwifery staff indicated that they had not received, and did not expect to receive, the training that was identified in their personal development plan.

It is time that we looked at this issue. Nursing is an incredibly important career—is there a more important one? We should be investing in it whole-heartedly.

I press amendment 124.

The Convener

The question is, that amendment 124 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 124 agreed to.

The Convener

We will resume stage 2 next week. Members can still lodge amendments relating to the part of the bill after the part that amendment 124 deals with. The deadline for lodging further amendments is 12 noon tomorrow, Wednesday 30 January.

The Convener (Lewis Macdonald)

Good morning, and welcome to the fourth meeting in 2019 of the Health and Sport Committee. I ask everyone in the room to ensure that their mobile phones are off or in silent mode, please. Mobile devices may be used for social media purposes, but they should not be used for photography or for recording the proceedings.

We have received apologies from Alex Cole-Hamilton and David Torrance, and we are joined by Bob Doris, who is a substitute member for David Torrance. Welcome to the meeting.

The first item on the agenda is continued stage 2 consideration of the Health and Care (Staffing) (Scotland) Bill. I once again welcome the Cabinet Secretary for Health and Sport, Jeane Freeman, who is accompanied by Diane Murray, Louise Kay, Julie Davidson and Jonathan Brown. Fiona McQueen, too, is accompanying the cabinet secretary. I welcome the officials to the table.

I also welcome Monica Lennon, who will speak to and move amendments, and Mike Rumbles who will speak to amendments in due course. I am glad to welcome members of the public who have joined us.

Members should have a copy of the bill, the marshalled list of amendments that was published on Thursday, and the groupings of amendments, which sets out the amendments in the order in which they will be debated.

I will briefly explain the procedure again. There will be a debate on each group of amendments. I will call the member who has lodged the lead amendment in the group to speak to and move that amendment, and to speak to all the other amendments in the group. I will then call other members who have lodged amendments in the group. Members who have not lodged amendments in the group may also contribute—they should simply catch my eye in the usual way. If she has not already done so, I will invite the cabinet secretary to contribute to the debate just before we move to the winding-up speech by the member who moved the lead amendment.

Following the debate on each group, the member who moved the lead amendment in the group should indicate whether they wish to press it to a vote or to seek to withdraw it. If they wish to press it, I will put the question on that amendment. If a member wishes to withdraw their amendment after it has been moved, they must seek the agreement of other members to do so. If any member present objects to its being withdrawn, the amendment will immediately be put to a vote.

If any member does not want to move their amendment when called, they should say, “Not moved.” It is open to any other member then to move that amendment. If no one moves the amendment, I will move immediately to the next amendment on the marshalled list.

Only committee members and substitute members may vote. Voting in a division is by show of hands. Members should indicate their intention clearly and keep their hands up until their vote has been recorded.

The committee is required to approve formally each section of the bill, so I will put the question on each section at the appropriate point.

The intention is that we will finish stage 2 today, if we can. If we are unable to do so, we will return to it after the February recess. We have approximately three hours set aside in which to complete proceedings today. I hope that we can get through the amendments.

Section 4—NHS duties in relation to staffing

The Convener

The first group of amendments is entitled “Common staffing method: purpose and frequency of use”. Amendment 18, in the name of the cabinet secretary, is grouped with amendments 93 and 22.

The Cabinet Secretary for Health and Sport (Jeane Freeman)

Amendments 18 and 22 relate to the frequency of use of the common staffing method in proposed new section 12IB of the National Health Service (Scotland) Act 1978. The common staffing method includes use of the staffing level and professional judgment tools and consideration of the results that they produce. Proposed new section 12IB(3)(c) will provide Scottish ministers with the power to prescribe the frequency of use of the staffing level and professional judgment tools as part of the common staffing method. It will not allow ministers to prescribe the frequency of use of the common staffing method as a whole.

The data output that is produced as a result of using the tools should be used only as part of the common staffing method and should not be used in isolation. Similarly, the common staffing method should not be used without using the tools and data output from the tools. Therefore, it is the Scottish Government’s intention that the whole common staffing method, as set out in proposed new section 12IB of the 1978 act, rather than just the tools, be used at a specified frequency.

Having reflected on the matter, the Scottish Government considers that the power in proposed new section 12IB(3)(c) of the 1978 act would be too narrow to achieve that, because it relates only to frequency of use of the tools, rather than of the wider common staffing method. Accordingly, amendment 22 will remove proposed new section 12IB(3)(c).

Amendment 18 sets out a replacement power for Scottish ministers to prescribe in regulations the frequency at which the common staffing method as a whole—rather than just the tools—is to be used. It is worth emphasising that it will be a minimum frequency: health boards will have discretion to use the common staffing method more often, if they wish to do so.

As well as clarifying that Scottish ministers can specify the frequency with which the whole common staffing method, and not just the tools, should be used, amendments 18 and 22 should also remove any suggestion that the output of the tools can be used separately from the common staffing method, or that the common staffing method can be followed without using the data from the output of the tools.

I will now speak to Mr Briggs’s amendment 93, which seeks to provide that the purpose of the common staffing method is to set staffing establishments. Although the common staffing method is used to set staffing establishments, that is not its only purpose: it is designed to be used more widely. Indeed, the bill already reflects its wider use as a method to support service redesign. That is set out as a specific step in proposed new section 12IB(2)(d) of the 1978 act.

If we were to say that the common staffing method was purely about setting a staffing establishment annually, the opportunity that is being created by the bill would be missed and we would merely be making voluntary use of the existing tools a statutory requirement. Throughout the consultation on the bill, we were told that it needs to go beyond looking at just how the establishment is set. The common staffing method that is set out in the bill will do just that. To restrict it to setting establishments would undermine the purpose of the legislation.

However, although I do not believe that amendment 93 accurately conveys the range of uses for which the common staffing method can bring benefits, it is worth noting that those other uses do lead to the setting of an establishment figure, and would therefore be captured within the purpose that is set out in amendment 93. Therefore, I will not oppose amendment 93, although I ask Mr Briggs to confirm that his intention is that the amendment cover not only the routine regular staffing establishment setting process, but its use to provide an establishment figure as a result of other triggers, including the need to redesign a service.

I move amendment 18.

Miles Briggs (Lothian) (Con)

Amendment 93 seeks to designate the common staffing method as the process by which the staffing establishment figure will be set. In the bill as drafted, the common staffing method is the only process that can be used to set staffing levels. It is required that the staffing tool and the professional judgment be run as the first step in the common staffing method. If current practice is followed, in almost all cases the two tools will be run on an annual or biannual basis. In some specific settings, such as neonatal care, the staffing tool would be run daily, if current practice continues.

Given the steps that the common staffing method requires, it is a way to set a staffing establishment figure. That is what I am looking to incorporate. It is not a real-time process to monitor staffing, safety or quality.

I have heard what the cabinet secretary has said, but I think that amendment 93 could still complement the bill.

Sandra White (Glasgow Kelvin) (SNP)

I have a couple of questions for the minister, and, perhaps, a comment to make. I thank the minister for clarifying the situation around amendment 18, particularly with regard to frequency. In my mind, we are moving more towards integration, and this is part of it. I have concerns about some of the amendments, so I appreciate clarity on that one.

I know that the minister has said that she is minded to agree to Miles Briggs’s amendment 93, but I would like him to say whether his amendment would prevent the service redesign and flexibility that the bill is all about. That is my concern about it.

The Convener

If Mr Briggs wishes to respond to that question, he will have to make an intervention on Sandra White, or on the minister, in due course.

Miles Briggs

I will intervene just now. The wider context of health and social care integration is the important background to the bill, and I think that committee members are committed to it. Through amendment 93, I am looking to strengthen the bill in respect of the common staffing method. Currently, it is the only process that is used in establishing staffing levels.

Sandra White

Will you take an intervention?

The Convener

You still have the floor, Ms White.

Sandra White

Thank you, convener. I would like Miles Briggs to clarify the point that he just made. He quite rightly spoke about the long term, which is a difficult issue to address. However, I asked about service redesign and flexibility. Would amendment 93 stop service redesign and prevent flexibility in relation to staff?

Miles Briggs

I do not believe that amendment 93 would do that.

The Convener

That concludes Sandra White’s contribution. I invite the cabinet secretary to wind up.

Jeane Freeman

I have little to add. I am grateful for Miles Briggs’s confirmation that he does not believe that amendment 93 would restrict or prevent service redesign. With that assurance, I press amendment 18 and will not stand in the way of his amendment 93.

Amendment 18 agreed to.

Amendment 93 moved—[Miles Briggs]—and agreed to.

The Convener

The next group of amendments is entitled “Common staffing method: steps and factors in method”. Amendment 94, in the name of Miles Briggs, is grouped with amendments 95, 19, 20, 96 to 98, 21, and 99 to 102.

Miles Briggs

The purpose of amendments 94, 95, 97, 99, 100 and 101 is to remove the hierarchy within the common staffing method so that tools, patient acuity and dependency, and the clinical advice of nurses of appropriate seniority are given equal weight.

The current common staffing method is based on average workload for each specialty across Scotland. It is supplemented by considering the specifics of local contexts, including the age profile of staff, local recruitment challenges, quality indicators and professional judgment. As drafted, the use of a staffing level tool and a professional judgment tool is the first step; a consideration of current staffing levels, local context and so on is the next step; and the final step is a consideration of patient need and appropriate clinical advice. That means that, in the common staffing method, the tools hold more weight than patient need and the clinical advice of nurses of appropriate seniority, and the common staffing method is not truly triangulated. The process that is set out by the common staffing method should give equal weight to the use of staffing tools, patient acuity and dependency, and the clinical advice of nurses of appropriate seniority.

When the committee took evidence on this issue, we looked specifically at a piece of work around an ultimate focus on outcomes to be achieved. I believe that the amendments complement the legislation in that regard.

I move amendment 94.

Jeane Freeman

I will speak to amendment 20 in particular. I addressed that amendment last week, and I do not intend to repeat everything that I said then. However, I would like to point out that, in developing amendment 20, I listened to the Royal College of Nursing view that the leadership role of the senior charge nurse should be recognised. That was covered by the 2008 report “Leading Better Care: Report of the Senior Charge Nurse Review and Clinical Quality Indicators Project”, which set out that, in recognition of their leadership role, senior charge nurses should not be completely case load holding. We will continue to work on the leadership role of the senior charge nurse, and the workload planning tools and common staffing method provide an evidence-based way to do so.

It is not appropriate that nurses have been singled out for preferential treatment in a bill that is not only about nursing. I have looked further at amendment 91, in the name of Alison Johnstone, which was passed last week, and I am not convinced that it does what she intended it to do. I have serious concerns about the way in which it is worded and the impact that it could have on patient care, and I will return to that issue later in the process.

Amendment 20 aims to recognise the unique roles and responsibilities that are placed on all clinical team leaders and sets out an additional step in the common staffing method that requires health boards to consider the role and professional duties of lead clinical professionals. It takes account of the multidisciplinary nature of the services that we aim to provide. For example, in a rehabilitation ward where the team leader is a physiotherapist, that person will be allowed appropriate time to fulfil their leadership role. It will also mean that midwives are afforded the same support as nurses for their leadership role. Given the passing of amendment 91, that is all the more important to ensure that all staff groups are supported in their leadership role. The Scottish executive nurse directors group is also supportive of that approach, which it believes clearly articulates the role of the clinical leader in the common staffing method. With that in mind, I ask the committee to support amendment 20.

Amendment 19 sets out that, as part of the common staffing method, health boards and the agency must take into account the different skills and levels of experience of its employees. It aims to address the concern that has been raised by some of our stakeholders that the workload tools do not result in a definition of the level of skill and experience that are required to deliver the workload. By amending the bill in this way, I intend to ensure that health boards and the agency not only look at how to put in the correct number of staff but ensure that those staff have the skills and experience that are necessary to provide the safe and high-quality service that I am keen to see across our national health service.

Amendment 21 sets out that, as part of the common staffing method, comments by individuals who have a personal interest in the patient’s healthcare, such as family members and carers, should be taken into account, as well as those of the patient himself or herself, in so far as those comments relate to the duty to ensure appropriate staffing. That recognises that, for various reasons, patients are not always able to speak for themselves, although that does not mean that their wishes should not be heard and responded to.

I am not clear about the intention of amendment 96, in the name of David Stewart. From my reading of it, it could be about underlining the importance of multidisciplinary services, avoiding the unintended consequences of covering one staff group by a workload planning tool for other staff groups, or recognising that some aspects of care could be carried out by more than one profession. I agree with all of those and they have been considered in the drafting of the bill, so I would welcome Mr Stewart’s clarification of the intention of amendment 96.

I see no issues with many of the amendments that have been lodged by Mr Briggs, although some appear to be based on a misunderstanding that there is some kind of hierarchy in the common staffing method which, for clarity, I say is not the case. All steps in the method must be carried out and all are given equal weight. However, it does no harm to change the order in which the steps appear so, if Mr Briggs wishes to do that, I will not stand in his way.

The amendments that give me cause for concern are amendments 94, 95 and 102. In relation to amendments 94 and 95, I am concerned by the lack of clarity on what is meant by “peer-reviewed evidence” and “professional and improvement organisations”. What is the definition of “peer-reviewed evidence” and would there necessarily be any certainty that something that is reviewed by a health “peer” should always be taken into account? In the health field, there could be numerous trials or pieces of work that some people might class as evidence but on which clinicians disagree. Is it the case that all such work should be taken into account? Similarly, what is a “professional and improvement organisation”? Those are exactly the questions that will be asked by the working group that is set up to develop a tool and it is the working group that will be best placed to determine what is relevant for that tool.

When Healthcare Improvement Scotland reviews the effectiveness of the tools and the common staffing method, as set out in amendment 17, it will take into account the most up-to-date and relevant evidence and guidance, as is its professional duty. I do not feel that it is appropriate for legislation to require that a senior charge nurse, for example, carry out a review of available evidence every time he or she runs the common staffing method. My preference is to include something in guidance, in order to allow for greater clarity and flexibility. However, I would be happy to work with Mr Briggs to see whether we could develop an amendment for stage 3, if he feels strongly that he wants to include something in primary legislation, although I do not believe that that is necessary. I therefore ask Mr Briggs not to press amendment 94 or move amendment 95.

I believe that amendment 102 is based on a proposal by the RCN, which is keen to see excellence in care referenced in the bill in some way. If my assumption is correct, amendment 102 is completely unnecessary, as proposed new section 12IB(2)(b) of the 1978 act sets out that account must be taken of,

“in so far as relevant, any measures for monitoring and improving the quality of health care which are published as standards and outcomes under section 10H(1) by the Scottish Ministers”.

Excellence in care will be one such measure. Therefore, I cannot see what the amendment adds. If Mr Briggs feels that the current provisions do not achieve what is required then—as is the case with amendments 94 and 95—I will be happy to work with him to develop an amendment for stage 3 that does. As it stands, I am hesitant to support amendment 102 and I ask the member not to move it.

David Stewart (Highlands and Islands) (Lab)

Like many other amendments in the group, amendment 96 seeks to add to the list of considerations that must be taken into account when determining staffing levels. In evidence at stage 1, the committee heard concerns from a number of stakeholders that the bill could have the unintended consequence of drawing resources into the supply of professions that are covered by the existing tools at the expense of other healthcare professions that are not yet covered by the tools, which would not benefit the delivery of quality services or improve outcomes for patients and service users. Therefore, amendment 96 would require account to be taken of the potential impact on other staff and professions when determining appropriate staffing levels.

Amendments in other groups that have been lodged by the cabinet secretary and by Alex Cole-Hamilton seek to embed a multidisciplinary approach through the development and review of tools, which is welcome. However, I submit that amendment 96 is needed in addition to the amendments that reference multidisciplinary working approaches, to ensure that all professions are considered from day 1 of the implementation of the bill and not only when the tools are reviewed. Amendment 96 does not detract from the multidisciplinary amendments; rather it makes explicit their ultimate aim and is complementary to them. I hope that my comments cover the questions that the cabinet secretary raised in her opening remarks.

Emma Harper (South Scotland) (SNP)

I want to clarify that, if we are going to pursue common staffing methods, many of the tools have not yet been created. About one third of our care homes have nursing staff, but many care homes do not have nurses working in them. We are talking about social care being provided in people’s homes, so there are no nursing assessment requirements, unless people are unwell for whatever reason. The tools for a multidisciplinary team approach have not yet been developed and the amendments might restrict the ability to manage common staffing methods. My concern in that regard is about the care home setting, in which not many nurses work.

The Convener

I call Miles Briggs to wind up, and to press or withdraw his amendment.

Miles Briggs

The common staffing method

“means that a Health Board or the Agency ... takes into account ... measures for monitoring and improving the quality of health care which are published as standards and outcomes under section 10H(1) by the Scottish Ministers”.

The aim of amendments 94 and 95 is to set out that peer-led evidence be part of that. Having listened to the cabinet secretary, I am happy to look at how we can come to a cross-party agreement on this issue at stage 3, so I will withdraw amendment 94 and not move amendments 95 and 102.

Amendment 94, by agreement, withdrawn.

Amendment 95 not moved.

Amendments 19 and 20 moved—[Jeane Freeman]—and agreed to.

Amendment 96 moved—[David Stewart]—and agreed to.

Amendments 97 and 98 moved—[Miles Briggs]—and agreed to.

Amendment 21 moved—[Jeane Freeman]—and agreed to.

Amendments 99 to 101 moved—[Miles Briggs]—and agreed to.

Amendment 22 moved—[Jeane Freeman]—and agreed to.

Amendment 102 not moved.

The Convener

The next group of amendments is entitled “Common staffing method: types of healthcare and employees covered”. Amendment 23, in the name of the cabinet secretary, is grouped with amendments 24 to 36, 45 and 46.

Jeane Freeman

These are minor technical amendments to the healthcare settings that are covered by the duty on health boards and the agency to use the common staffing method.

The purpose of amendments 23 and 25 to 29 is to clarify that, where multiple types of employees or locations are covered by a healthcare setting in the table in proposed new section 12IC(1) of the 1978 act, the requirement to follow the common staffing method applies where one or more of the employee types or locations are present and not just where all those listed are present. The amendments will ensure that, for example, for neonatal provision, which can be delivered by registered nurses, registered midwives or a combination of the two, the duty to use the common staffing method comes into effect when some of the employee types are present in a particular ward and not just when all those listed are present.

Amendments 24 and 31 will bring the definitions of “Adult inpatient” and “Small ward provision” in line with the nursing and midwifery workload and workforce planning programme guidance for the use of those specific staffing-level tools.

Amendment 30 removes the “Perioperative provision” entry from proposed new section 12IC of the 1978 act. A review of the perioperative staffing-level tool, which would be used as part of the common staffing method in perioperative healthcare settings, has identified issues, which are currently being investigated. Because of that, the tool is currently unavailable for use by health boards, and as such they would be unable to comply with the duty to use the common staffing method in perioperative settings.

Amendments 34 and 35 clarify that medical students and student nurses and midwives are not included in the staffing establishment for the purposes of the common staffing method. The exclusion can be extended to other types of student in the future if necessary, as more staffing groups, such as allied health professionals, are brought within the common staffing method.

Last week, I spoke about the importance of taking a multidisciplinary approach and, in doing so, recognising the important role that allied health professionals play in achieving outcomes for service users. Those professionals highlighted that point during the stage 1 evidence sessions and it was noted by the committee. Amendment 36, which arises from productive engagement with the Allied Health Professions Federation, clarifies that allied health professionals are an example of the type of employee that can be covered by the common staffing method. That means that, when new tools are developed that cover allied health professionals, the duty to use the common staffing method can be extended to cover them.

Amendment 46 expands the definition of “employee” in proposed new section 12IG to include those who are employed by a local authority under the lead agency model of integration. That means that those local authority employees will be captured under the common staffing method, which is necessary to ensure its correct operation in lead agency settings.

Amendments 32, 33 and 45 are minor technical corrections to ensure that the legislation operates as intended. Throughout the bill, the term “individual” is used to describe a natural person and the term “person” is used to describe a legal person. However, section 12IC(2), which sets out the types of healthcare to which the duty to use the common staffing method applies, and the definition of “appropriate clinical advice” in 12IG use the term “person” to describe a natural person. Amendments 32, 33, and 45 therefore change those references from “person” to “individual” to provide clarity that they refer to a natural person, and to provide consistency throughout the bill.

I move amendment 23.

Amendment 23 agreed to.

Amendments 24 to 36 moved—[Jeane Freeman]—and agreed to.

The Convener

The next group is entitled “Common staffing method: training and consultation of staff”. Amendment 103, in the name of Miles Briggs, is grouped with amendments 6 and 104 to 106.

Miles Briggs

Amendments 103 to 106 seek to put a duty on NHS boards to support, as well as encourage, staff to share their views on the boards’ compliance with the legislation. Under the bill as drafted, NHS boards will be required only to encourage employees to give views on their staffing arrangements, and that requirement covers only the areas that use the common staffing method.

Employees of NHS boards will have valuable experience of staffing issues as well as views on whether the care that they are able to provide is safe and of high quality. As a result, the duty on NHS boards should be strengthened to ensure that they must actively seek their employees’ views and support them in making their views known. That might mean, for example, NHS boards ensuring that reasonable systems are in place for collecting those views.

A strengthened duty to engage with employees would mean that those working in areas covered by the common staffing method would have a significant opportunity to comment on and, potentially, to shape board processes for discharging the duties that the legislation puts on them. The operation of the legislation could, in practice, be further strengthened if the provisions for staff engagement under proposed new section 12ID(a) and (b) of the 1978 act and the provisions for reporting back to staff in proposed new section 12ID(e) were not solely focused on the use of the common staffing method but took into consideration the guiding principles for staffing and the duty to ensure appropriate staffing. Given that amendments have been agreed to on the need for NHS boards to establish protocols to identify monitoring and assess risk, supporting staff in giving their views on the protocols should be covered in the bill, too.

Amendment 104 seeks to ensure that nurses of appropriate seniority are trained in the common staffing method. The bill contains provision for NHS employees to be trained in the use of the method and for their having adequate time to use it. Given that being educated in the use of the method and having the time to use it are hugely important to the bill’s outcomes, it should be made explicit that NHS boards will make training on the common staffing method available to nurses of appropriate seniority across all settings.

I move amendment 103.

The Convener

I welcome Mike Rumbles to the meeting. I invite him to speak to amendment 6, in the name of Alex Cole-Hamilton, and the other amendments in the group.

Mike Rumbles (North East Scotland) (LD)

Thank you very much, convener; it is a pleasure to be here. Unfortunately, Alex Cole-Hamilton cannot be here for today’s meeting of the Health and Sport Committee—indeed, he is visiting a hospital at the moment—so he has asked me to attend to speak to his amendment on his behalf.

In Alex Cole-Hamilton’s view, amendment 6 takes nothing away from the bill; it simply adds to and improves it. It seeks to add the phrase “and areas for improvement” to proposed new section 12ID(b) of the 1978 act so that it reads “use any such views it receives to identify best practice and areas for improvement in relation to such staffing arrangements”. The amendment, which is supported by the Royal College of Nursing, would, I think, add greatly to the intention behind that section of the bill.

Jeane Freeman

I have no concerns about amendment 103 and I am happy to accept amendment 6, which I think is a helpful addition to the duty on boards in proposed new section 12ID of the 1978 act. I maintain, though, that amendment 104 is unnecessary, as proposed new section 12ID(c) as drafted already requires all staff who use the common staffing method to be trained.

I appreciate what amendments 105 and 106 seek to do with regard to the real-time staffing assessment procedures but, technically speaking, they would be placed in the wrong part of the bill. The real-time staffing assessment procedures apply to all employees of a health board, whereas the amendments would apply only to employees covered by the common staffing method, because proposed new section 12ID, into which the amendments would be inserted, applies only to employees engaged in the common staffing method, not to all health board employees. I assume that Mr Briggs’s intention is to cover all employees.

In addition, the opening words of proposed new section 12ID of the 1978 act explicitly make compliance with the duty to use the common staffing method in proposed new section 12IB dependent on fulfilling the duties listed in section 12ID. Given the differing coverage of the sections, it makes no sense to make compliance in law by health boards with section 12IB dependent on new procedures relating to the real-time staffing assessment procedures, which are not linked to the common staffing method. The correct link for any requirements relating to those new assessment and escalation procedures is with proposed new sections 12IAA and 12IAB, which the committee agreed to last week, precisely because of their wider application to all of a board’s employees.

I therefore ask Mr Briggs not to press amendments 105 and 106 and instead to lodge at stage 3 alternative amendments that amend the technically correct sections of the bill. I am happy to work with him on those amendments.

The Convener

I call Miles Briggs to wind up and to press or withdraw amendment 103.

Miles Briggs

I welcome the cabinet secretary’s agreement to support my amendments. As we head towards stage 3, there will be a lot of housekeeping to clean up the bill, so at this stage, I am happy not to press amendments 105 and 106.

Sandra White

On a point of clarification, the cabinet secretary has picked up on what I intended to say, but I will go over it again. When Mr Briggs was talking to his amendments at the beginning, he mentioned nursing staff, and I was concerned about that. The cabinet secretary has clarified her position as regards staffing levels, and I am concerned that he is leaning more towards nursing staff than any other types of staff. Would Mr Briggs consider having a chat with the committee or the cabinet secretary in order before lodging his amendments at stage 3? I have some concerns about how prescriptive they are. I hope that my comments are helpful.

Miles Briggs

We are all agreed on the multidisciplinary nature of the bill. When it comes to health and social care integration, we are trying to make legislation work for two different sectors. My understanding is that the cabinet secretary is content with amendments 103 and 104 in my name, but I am happy not to move amendments 105 and 106, with the understanding that, at stage 3, I will lodge amendments on which we can all agree.

Sandra White

Thank you for that.

Miles Briggs

I press amendment 103.

Amendment 103 agreed to.

Amendment 6 moved—[Mike Rumbles]—and agreed to.

Amendment 104 moved—[Miles Briggs]—and agreed to.

Amendments 105 and 106 not moved.

The Convener

We come to amendment 107, in the name of David Stewart.

David Stewart

I have had a discussion with the cabinet secretary and I am happy that she has taken on board the spirit of the amendment.

Amendments 107 and 123 not moved.

The Convener

In debates on groupings, other than when moving an amendment, if members wish to contribute to the general debate, they should indicate that before I call the cabinet secretary to speak, so that I can take their contribution separately. Of course, members can always intervene on other members and on the cabinet secretary, but if they wish to make comments on a group, I encourage them to do so.

The next group of amendments is entitled “Reporting on staffing by health boards and the Scottish ministers”. Amendment 37, in the name of Jeane Freeman, is grouped with amendments 38, 40, 108 and 109.

Jeane Freeman

Amendments 37 and 38 will strengthen the duty on health boards to report on how they have carried out their new duties under the bill. That includes reporting on section 2, on which Monica Lennon’s amendment 85—which was agreed to last week—also inserted a reporting duty.

Boards will have to provide a report detailing how they have complied with the general duty to ensure appropriate staffing and the duties on: the common staffing method; real-time assessment of staffing; escalation of staffing concerns; and the training and consultation of staff. Boards will have to submit the reports to ministers and publish them within one month of the end of the financial year.

Amendment 40 will create an additional duty on ministers to inform Parliament about how the reports provided by the health boards have been, or will be, taken into account when setting national staffing policy for NHS services.

I know that the committee heard evidence from stakeholders who wished to see a firmer link to workforce planning. Our approach recognises that the bill is not about strategic, national level workforce planning, but that the information generated by implementing the duty on health boards to ensure appropriate staffing and by the common staffing method is a factor that will be considered in such national planning.

In setting out a clear reporting process, my intention is to create transparency around the decisions that are taken by boards, allowing scrutiny of how that is reflected in their workforce projections. Similarly, creating transparency around the information that has been provided to ministers will allow scrutiny of how that information is then reflected by the Scottish Government in national workforce planning.

I do not think that there is anything covered by Monica Lennon’s amendments 108 and 109 that is not already addressed by my amendments. Amendment 109 sets out a similar reporting duty on Scottish ministers, however it does not cover the new real-time staffing and risk escalation duties that amendment 17 places on health boards and does not contain the link to how the information is used for wider workforce planning. I ask the committee to resist amendment 109.

I see merit in the intention behind amendment 108, which would require health boards and the agency to report on risks and challenges. I had intended that guidance would set out that boards must include that information in their reports, so I would be happy to make it explicit as part of section 12IF at stage 3. Therefore, I ask Monica Lennon not to move amendments 108 or 109.

I move amendment 37.

Monica Lennon (Central Scotland) (Lab)

Similarly to amendments to sections 2 and 3 of the bill in an earlier group, amendments 108 and 109 aim to improve the scrutiny of health boards’ compliance with the bill.

Amendment 108 would do that by requiring health boards to specify, in the information that they provide to Scottish ministers, any particular risk or challenge that they have faced in complying with their duties, particularly their duty to provide appropriate staff, taking into account the guiding principles, their duty to follow the common staffing method and their duty to provide appropriate and adequate training to staff. The purpose of including reporting on risk is to allow the identification of any systemic issues that might hinder staffing levels, at both a health board level and a national level.

Amendment 109 would require Scottish ministers to gather the information that they receive from health boards and respond to it publicly. It would also require the public report from ministers to address the risks faced by health boards in relation to their staffing duties. The aim of amendment 109 is to encourage scrutiny of the decisions taken by the Scottish Government with regard to national workforce planning and staffing of our health service.

I note that amendments moved by Alison Johnstone last week also sought to establish a link between the bill and national workforce planning. I supported those amendments and I believe that amendments 108 and 109 would strengthen that connection further by ensuring that Scottish ministers are held accountable for mitigating risks faced by health boards in any area of national policy—be it the supply of trained professionals required by Alison Johnstone’s amendments, pay levels, terms and conditions or issues such as the accessibility of workplaces in rural areas.

I welcome the cabinet secretary’s comments. I recognise that amendment 40, in her name, also seeks to provide a connection to national Government workforce planning, which is welcome. However, the specific reference to risk in amendment 109 is stronger and therefore I commend it to the committee.

The Convener

As no other member wishes to contribute to the debate, I invite the cabinet secretary to wind up.

Jeane Freeman

I repeat that Ms Lennon’s amendment 109 does not cover the new real-time staffing and risk escalation duties that amendment 17 places on health boards, and does not contain the link to how the information is used for wider workforce planning. I believe that that makes amendment 109 the weaker one, and I ask the committee to support instead my amendment 40.

Amendment 37 agreed to.

Amendments 38 to 40 moved—[Jeane Freeman]—and agreed to.

Amendment 108 moved—[Monica Lennon].

The Convener

The question is, that amendment 108 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 4, Against 4, Abstentions 0.

I use my casting vote to vote in favour of amendment 108.

Amendment 108 agreed to.

Amendment 109 moved—[Monica Lennon].

The Convener

The question is, that amendment 109 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Harper, Emma (South Scotland) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 4, Against 4, Abstentions 0.

I will use my casting vote to vote in favour of amendment 109.

Amendment 109 agreed to.

Amendment 41 moved—[Jeane Freeman]—and agreed to.

The Convener

The next group is on ministerial guidance on staffing by health boards. Amendment 42, in the name of the cabinet secretary, is grouped with amendments 43, 44 and 47.

Jeane Freeman

Amendments 42 to 44 and 47 relate to the guidance that ministers can produce under proposed new section 12IF of the 1978 act, which covers the new staffing duties on health boards and the Common Services Agency. Section 12IF sets out that health boards and the agency must have regard to any guidance that has been issued by ministers when carrying out their duties under proposed new sections 12IA to 12IE. Section 12IF(3) lists those whom ministers must consult before issuing such guidance. Amendments 42 to 44 make changes to that list, and amendment 47 is consequential on amendment 42.

Amendment 42 clarifies that ministers must consult every relevant special health board, and amendment 47 sets out that that means those to which such duties apply as a result of section 5. That means that ministers will not be required to consult non-clinical special health boards, because they are not covered by the bill.

It is important that trade unions and professional bodies that represent staff who work in all the bodies to which the duties that are set out in the bill apply are able to offer their views on the guidance. Amendment 43 means that, as well as consulting health boards and the Common Services Agency, ministers must consult representatives of employees who work in relevant special health boards, integration authorities to which healthcare functions are delegated through the Public Bodies (Joint Working) (Scotland) Act 2014 and Healthcare Improvement Scotland.

Amendment 44 adds professional regulatory bodies for employees of health boards, the Common Services Agency, relevant special health boards, integration authorities to whom healthcare functions are delegated through the Public Bodies (Joint Working) (Scotland) Act 2014 and HIS to the list of those whom Scottish ministers must consult before issuing this guidance. That will cover the relevant statutory regulators such as the General Medical Council, the Nursing and Midwifery Council and the Health and Care Professions Council and ensure that they are consulted on guidance that may impact on the professional groups that they regulate.

I move amendment 42.

Amendment 42 agreed to.

Amendments 43 to 47 moved—[Jeane Freeman]—and agreed to.

Section 4, as amended, agreed to.

Section 5—Application of duties to certain Special Health Boards

Amendments 48 to 65 moved—[Jeane Freeman]—and agreed to.

Section 5, as amended, agreed to.

After section 5

The Convener

The next group is on the role of Healthcare Improvement Scotland in relation to staffing. Amendment 66, in the name of the cabinet secretary, is grouped with amendment 66A.

Jeane Freeman

In the stage 1 debate, I committed to lodge an amendment to make the role of Healthcare Improvement Scotland clear. Amendment 66 extends HIS’s existing quality assurance and improvement role by inserting new sections into the National Health Service (Scotland) Act 1978 setting out that HIS will be responsible for monitoring the discharge by every health board, relevant special health board—meaning a special health board that provides clinical healthcare services to patients—and the Common Services Agency of their duties under all parts of the bill. Amendment 66 has the full support of HIS and has been drafted in consultation with it.

Proposed new section 12IH of the 1978 act places a duty on HIS to monitor the compliance of boards and the Common Services Agency with the staffing duties introduced by the bill, including the new real-time assessment and risk escalation duties under amendment 17.

Proposed section 12IJ places a duty on HIS to monitor

“the effectiveness of the common staffing method”

and the way in which boards and the agency are using it. HIS must additionally, as and when it considers it appropriate, carry out discrete reviews of the common staffing method with a view to publishing and submitting to ministers a report recommending changes to the common staffing method, if required. Ministers may then, by the regulations already provided for under proposed new section 12IB(4), amend the common staffing method.

HIS must have regard to the guiding principles in carrying out a review. In doing so, it must consult a range of stakeholders, as listed in section 12IJ(3). Ministers will also have the power to direct HIS to carry out such a review of the common staffing method.

Further to that, proposed section 12IK sets out that HIS may also develop, and recommend to ministers

“new or revised staffing level tools and professional judgement tools”

for use as part of the common staffing method, in relation to any kind of healthcare provision. Ministers may then, by regulations already provided for under proposed new section 12IB(3), prescribe the use of said tools as part of the common staffing method. In developing any new or revised tools, HIS must collaborate with the bodies mentioned previously and must again have regard to the guiding principles. Similarly, ministers may direct HIS to develop a new or revised staffing level tool or professional judgment tool.

In recognition of the view of stakeholders—in particular, the Allied Health Professions Federation—that there is a need to look at the development of multidisciplinary tools, proposed new section 12IL places a duty on HIS, when developing a new or revised staffing level or professional judgment tool, to

“consider whether the tool should apply to more than one professional discipline.”

It also gives HIS a power to recommend to ministers that an existing tool should be multidisciplinary. HIS will be under a duty to monitor the effectiveness of any staffing level tool or professional judgment tool that has been prescribed by ministers under section 12IB(3). That would include any new or revised tool.

Proposed new sections 12IM and 12IN aim to ensure that HIS is given access to the support and—crucially—to the data that are necessary to carry out its new functions under the bill. Proposed section 12IM requires health boards, relevant special health boards and the agency to give HIS

“such assistance ... as it requires in the performance of its functions under sections 12IH to 12IL.”

Proposed section 12IN gives HIS a power

“in pursuance of its functions under sections 12IH to 12IL”

to

“serve a notice on a Health Board, relevant Special Health Board or the Agency requiring the Board or the Agency ... to provide HIS with information about any matter specified in the notice”

by a specified date. Ministers will also have a power under proposed section 12IO to issue statutory guidance to HIS and to boards about those new provisions.

Finally, but importantly, the existing powers of HIS to inspect NHS services are extended to include the enforcement of those new functions by amendment to section 10I of the 1978 act. HIS is fully aware of that amendment and is happy with the provisions that are set out in it.

Amendment 66A is unnecessary, as ministers can already direct HIS to carry out a review of the common staffing method under proposed new section 12IJ(4) or to develop a new or revised staffing level tool or professional judgment tool under proposed section 12IK(5). That could include a direction that HIS look at particular matters, including staff absences and bed occupancy levels. However, I do not think that the amendment would do any particular harm, so I will not stand in Mr Briggs’s way if he wishes to press it.

I move amendment 66.

Miles Briggs

I welcome the fact that the cabinet secretary has lodged amendment 66, and I think that we are both trying to achieve the same thing in our amendments.

I was specifically looking to allow ministers to prescribe what could be included because of our original discussions about the multidisciplinary approach, which is very different from multidisciplinary tools. Given the different workforces, how we take that issue forward is important.

I am happy to move amendment 66A. I hope that we will finally get something workable in the bill at stage 3.

I move amendment 66A.

Amendment 66A agreed to.

Amendment 66, as amended, agreed to.

Before section 6

The Convener

Amendment 110, in the name of David Stewart, has already been debated with amendment 84.

David Stewart

Following a helpful discussion with the cabinet secretary, I will not move amendment 110.

Amendment 110 not moved.

Section 6—Duty on care service providers to ensure appropriate staffing

The Convener

The next group is on the duty on care service providers to ensure appropriate staffing. Amendment 7, in the name of Alex Cole-Hamilton, is grouped with amendments 111, 112 and 67.

Mike Rumbles

As I said, I will speak to Alex Cole-Hamilton’s amendments this morning, but I also want to speak to amendment 67, in the name of the cabinet secretary.

All the amendments in the group are intended to improve the bill; indeed, I think that, whichever way we go, it will be an improvement. However, I think that Alex Cole-Hamilton’s amendments are—if I can put it this way—more comprehensive and effective than the cabinet secretary’s amendment. Section 6(1) says:

“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 ... the health, wellbeing and safety of service users”.

Amendment 7, in the name of Alex Cole-Hamilton, seeks to add the phrase “and staff” to that, which I think is really important and is supported by the Royal College of Nursing. Amendment 7, along with amendments 111 and 112, which seek to change the phrase

“the provision of high-quality care”

in section 6(1)(b) to “the provision of safe and high-quality care and services”, provides a far more comprehensive approach than the cabinet secretary’s choice in amendment 67 to add to section 6(1)

“(c) in so far as it affects either of those matters, the wellbeing of staff.”

After all, amendments 7, 111 and 112 cover health, wellbeing and safety.

I do not need to say any more. Alex Cole-Hamilton’s far more comprehensive amendments build on the important intention behind section 6, and I hope that there will be unanimous support for them.

I move amendment 7.

Jeane Freeman

I appreciate the valid aim of amendment 7, which seeks to ensure that staff wellbeing is considered in ensuring adequate numbers of staff. However, as I said last week in relation to amendment 3, we must be mindful that employment and health and safety law are reserved matters and are not for this Parliament to deal with. I also stated in respect of amendment 3—I will restate it again for the sake of clarity—that an almost identical provision to this amendment already exists in health and safety legislation, and we would not want to replicate in the bill any duty that already exists in primary legislation.

With this bill, we seek to ensure safe, high-quality services. Success will create a virtuous circle of better outcomes for patients together with improved wellbeing for staff; indeed, evidence demonstrates that one can affect the other. We already have as a guiding principle

“ensuring the wellbeing of staff”

and, again for the sake of clarity, I point out that throughout the bill we express concern about and put in place provisions to ensure the health and safety of staff.

As I have said, I am not averse to the aims of amendment 7, but I will move amendment 67 as a replacement that I believe answers the committee’s request in its stage 1 report to include staff wellbeing in the duty on care service providers to ensure appropriate staffing. As with amendment 15, which, unfortunately, was not agreed to but which dealt with the health context, amendment 67 seeks to keep the bill’s primary focus on the welfare of service users, while considering staff wellbeing in terms of how it impacts on the service itself.

I turn to amendments 111 and 112. Section 6 provides that:

“Any person who provides a care service must ensure that at all times suitably qualified and competent individuals are working in the ... service in such numbers as are appropriate for ... the health, wellbeing and safety of service users, and ... the provision of high-quality care.”

Under amendment 111, any person who provided a care service would have to ensure that such numbers must be working as would be appropriate for the provision of safe and high-quality care. I therefore have no concerns with the amendment, given the bill’s clear aims to secure safe and high-quality care.

Under amendment 112, such numbers must be working as would be appropriate for the provision of high-quality care and services. Although that duplicates what is already provided, as the care is the service, I will not stand in members’ way if they wish to agree to the amendment.

I therefore ask the committee to support amendment 67 and not to support amendment 7.

Brian Whittle (South Scotland) (Con)

I seek clarity from the cabinet secretary. She highlighted that the primary concern is the wellbeing of patients at all times. However, I am concerned that we should also consistently look after the health of our healthcare professionals. I assume that the cabinet secretary would agree with that, but I am not sure that that will be the case under amendment 67. I think that one goes hand in hand with the other—looking after the health of our healthcare professionals is key to looking after the health of patients.

Jeane Freeman

I am not going to disagree with Mr Whittle, and I have already said that I will not stand in the way of amendments 111 and 112. I have also made the point that, elsewhere in the bill, we have clear provisions that show our commitment to the health, wellbeing and safety of staff. My primary point is that the bill’s focus is on the quality of the provision for those who receive it. There is multiple evidence of that virtuous circle that I spoke about and that, in order to achieve that, we have to ensure the health, wellbeing and safety of staff.

We might be dancing on the head of a pin here. I do not have a problem with amendments 111 and 112; my concern is with amendment 7, which I believe replicates legislation when it is not necessarily in our power to do so.

George Adam (Paisley) (SNP)

I want to talk first about the positives. I can support amendments 111 and 112 and, obviously, amendment 67. However, I have an issue with amendment 7, which is similar to the issue that I raised last week and which the cabinet secretary has raised today. Although we welcome what amendment 7 tries to do, there is a potential problem with competency, as it moves into reserved issues of health and safety. I mentioned the issue last week and I mention it again now, as I have concerns about it. We need to be mindful of that point.

Mike Rumbles

I am surprised that such a red herring has suddenly appeared in the debate. The point about health and safety legislation is a red herring. The cabinet secretary might not be particularly well advised on the issue, because amendment 7 does not trespass on health and safety law; if it did, we could not have what is already in the bill, which refers to the

“wellbeing and safety of service users”.

We cannot draw a distinction and say that the safety of service users is not to do with health and safety law but then say that, with the staff, their safety is about health and safety law—it is not.

Sandra White

I think that Mike Rumbles is mixing things up slightly. Obviously, it is about health and wellbeing, but we are talking about legislation that is reserved—that is the point.

Mike Rumbles

I am sorry, but the member misunderstands my point, which is that the cabinet secretary has introduced the bill, which talks about the “safety of service users”. If that contravened health and safety legislation, it could not be in the bill.

Sandra White

But I think—

Mike Rumbles

I have given way already on the point. Amendment 7 would include staff—the people who work in the organisation—as well as the people who use the service. Health and safety legislation applies to everybody who uses a facility, whether or not they are members of staff, and the detail of health and safety law is in health and safety legislation. Amendment 7 does not contravene health and safety legislation; if it did, section 6 would be incompetent. I would like to put that red herring to rest.

Sandra White

It is employment law.

George Adam

Exactly.

The Convener

Order, please. Mr Rumbles, are you pressing amendment 7?

Mike Rumbles

I am, indeed, because it will improve the bill dramatically.

The Convener

The question is, that amendment 7 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Briggs, Miles (Lothian) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Harper, Emma (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 4, Against 4, Abstentions 0.

I will use my casting vote in favour of the amendment.

Amendment 7 agreed to.

Amendments 111 and 112 moved—[Mike Rumbles]—and agreed to.

Amendment 67 moved—[Jeane Freeman]—and agreed to.

Section 6, as amended, agreed to.

After section 6

The Convener

The next group is entitled “Care services: risk management procedure”. Amendment 113, in the name of David Stewart, is the only amendment in the group.

David Stewart

Amendment 113 seeks to ensure that care sector providers have in place appropriate processes for the assessment and management of the risk that is associated with staffing levels, as my amendment 107 sought to do for health services in part 2 of the bill.

Having spoken to stakeholders in the sector, including Scottish Care, I have lodged an amendment that is slightly more pared down than amendment 107.

Risk management escalation procedures are there partly to protect staff and employees who will have to find solutions to staffing challenges in real time. The procedures will give them clear guidance on steps that they can take.

Sandra White

Will the member take an intervention?

David Stewart

Can I just finish this and then come back to you?

The Convener

There will be an opportunity to make a contribution once Mr Stewart has finished what he wants to say. I will allow him to take an intervention.

David Stewart

It was suggested that prescribing the steps that must be taken by employees, who are already stretched and hard working, could have the unintended consequence of placing significant responsibilities and bureaucratic burdens on them, which is why amendment 113 places the responsibility on providers to set out risk management procedures that allow flexibility for local contexts.

Risk management procedures must be standard policy, and the amendment seeks to standardise them as much as possible with regard to staffing the sector.

I move amendment 113.

Sandra White

I have consulted and received feedback from various organisations, including the Convention of Scottish Local Authorities—I assume that other members also received a copy of COSLA’s feedback—and the social work department in Glasgow. COSLA says that the amendment would put an added burden on care services, particularly smaller ones, and that it would create another “layer of bureaucracy”. The feedback was that, if the provision came into force at the same time as the consultation on care services was going on, it might jeopardise any agreement that is made with care services. Further, there was feedback that the amendment does not elaborate on what good care services would be if it was agreed to, and that it would be an additional burden with regard to scrutiny.

I ask David Stewart to take on board the points from COSLA, service users in my constituency in Glasgow and the head of the social work department in Glasgow City Council. I thank him for lodging the amendment, because it is good to have a debate on the issue, but perhaps, as I asked him earlier, he could speak to the cabinet secretary and not press the amendment.

David Stewart

I respect COSLA and all the players in the care sector. I had discussions with a number of them. It is an important amendment, but I am happy to listen to the points that the cabinet secretary might make on it.

Jeane Freeman

I am mindful that the risk escalation procedure that I have proposed for health settings has been developed through detailed work with representatives of nurses, midwives, medics and allied health professionals. Given its importance, I would be reluctant to apply a similar process to care service providers without working closely with them to ensure that it is proportionate and effective.

I have no issues with the intention of Mr Stewart’s amendment 113. However, in terms of its scope, the way in which it is drafted means that it would cover the full range of care providers that fall within section 47(1) of the Public Services Reform (Scotland) Act 2010. That includes childminders, of whom there are more than 5,000 registered in Scotland and who mainly work individually. As worded, amendment 113 would require each childminder to have an escalation policy. I am sure that is not Mr Stewart’s intention. I am also sure that the committee would agree that that would be disproportionate.

I ask Mr Stewart not to press amendment 113, so that we can work together to lodge a replacement at stage 3 that is drafted in such a way as to meet his intention but not to be so wide in its scope.

The Convener

I call David Stewart to wind up and press or withdraw his amendment.

David Stewart

In light of the contributions from Sandra White and the cabinet secretary, I am happy to go away and think again about amendment 113, particularly with colleagues in COSLA. I am happy to seek to withdraw my amendment.

Amendment 113, by agreement, withdrawn.

Section 7—Training of staff

The Convener

Amendment 114, in the name of David Stewart, is in a group on its own.

David Stewart

Amendment 114 seeks to ensure that, should the Scottish ministers mandate the use of a staffing tool by care services, they take responsibility for adequately resourcing the training required. The margins of social care providers are tight, and full-time staff numbers are limited. It is important that resources are there to reimburse staff for training that they are obliged to undergo. Similarly, care providers should not be forced to pay for additional training time out of squeezed resources.

As we have seen with the implementation of the living wage for social care workers and overnight carers, new policy and standards from the Scottish Government must be backed up by resources if they are going to make a difference at ground level. The financial memorandum makes reference to funding the training associated with implementing the use of the tools. Amendment 114 merely makes explicit in the bill the obligation on the Scottish ministers to fund the training. That would be important if costs end up higher than was estimated in the financial memorandum.

I move amendment 114.

Sandra White

Once again, I thank David Stewart for his amendment 114, which clarifies some points with regard to funding. Again, I have spoken to COSLA and others, and I am sure that all members have had the letter from COSLA.

COSLA and others ask that funding by commissioners is further considered, as, obviously, the commissioning authorities fund the care sector. COSLA would like to go through the process with commissioners fully.

I ask that the issue is taken into consideration. COSLA is, as always, willing to work with others on this, so I ask that David Stewart does not press amendment 114. The cabinet secretary may have something to add.

Emma Harper

I have a question that David Stewart might be able to answer in his summing up. Does his amendment 114 assume that all training is delivered away from the place of service provision? In my experience, a lot of training is delivered at the bedside, the place of care or the place of residence. Amendment 114 would create a narrow approach that does not enable the diversity of training provision to be widely appreciated.

Jeane Freeman

I appreciate what Mr Stewart is intending to achieve with amendment 114. We all agree that it is entirely right that care staff are properly trained, and I believe that that is recognised in section 7.

Amendment 114, however, is fundamentally flawed, in that the Scottish Government does not directly fund or contract with care service providers. They are private providers, who are contracted by local authorities, integration authorities and health boards. When such providers are contracted and the Scottish Government has a policy approach, as it has for the real living wage, funds are provided to those who contract with care service providers. Should the funds not be passed on, that is a matter between the Scottish Government and those to whom we provide the funds, such as local authorities. We do not have a direct contracting arrangement with care service providers.

We have set out in the financial memorandum our expectation to fund the initial training for using a staffing method. However, I cannot see how the Scottish Government could ensure that everyday training costs for private providers—and for every kind of training, not just training in the use of any new staffing methods—were resourced and allocated on a year-in, year-out basis. That would be entirely contrary to the existing funding framework and the way that funding for care service providers operates.

On that basis, I ask members not to support amendment 114.

The Convener

I call on David Stewart to wind up and press or withdraw amendment 114.

David Stewart

This is a very important issue. To have fully funded training is essential. On the living wage, I point out that we have seen in practice that, although paying the living wage is Scottish Government policy, some carers are not getting it, so there is clearly a problem in the system. However, I think that we generally all agree on the overall principle. I am happy not to press amendment 114 on the basis that I can come back at stage 3 after perhaps having some further contributions from providers and the Scottish Government.

Amendment 114, by agreement, withdrawn.

Section 7 agreed to.

Section 8—Ministerial guidance on staffing

Amendments 68 to 71 moved—[Jeane Freeman]—and agreed to.

Section 8, as amended, agreed to.

Section 9 agreed to.

Section 10—Functions of SCSWIS in relation to staffing methods

The Convener

The next group of amendments is entitled “Staffing methods for care services: development and review”. Amendment 115, in the name of Miles Briggs, is grouped with amendments 116, 72 to 74, 76, 79, 79A and 125.

Miles Briggs

Amendment 115 seeks to amend proposed new section 82A of the Public Services Reform (Scotland) Act 2010, on development of staffing methods. It would change the Care Inspectorate’s power to develop and recommend staffing methods for care homes and other care services, as specified by Scottish ministers, to an obligation to do so. Any new tools should be developed and tested in collaboration across the sector: that is what I seek to achieve with amendment 115.

With regard to the bill as a whole, we will need to consider at stage 3 how we can ensure that the bill works for people who are involved in social care.

I will be happy to hear any comments on amendment 115.

I move amendment 115.

Jeane Freeman

I assure members that the Government wants development of a staffing method and tool for care homes for older people, as we state in the policy memorandum. The Care Inspectorate is ready to support that development.

However, I ask members not to support amendment 115. As the approach that is outlined in the bill will be successful only with the co-operation and active participation of the care sector, it must be collaborative. There cannot be an imposed solution, which is what the word “must” in amendment 115 suggests. Collaboration will be crucial to the success of part 3 of the bill. On that basis, I ask Miles Briggs not to press amendment 115.

Members might have gained the impression that the Care Inspectorate has abandoned staffing numbers in care homes. It has, in fact, changed its approach. Rather than relying on historical ratios, it is requiring providers to carry out assessments of individual dependency and is aggregating that information and determining on a regular and dynamic basis what implications it has for staffing profile and numbers. That approach anticipates what will be required as the tools develop, and it should be welcomed.

I have nothing to say on amendment 116.

I turn to my amendments in the group. Section 10 will insert in the Public Services Reform (Scotland) Act 2010 proposed new section 82A, which will empower the Care Inspectorate to develop staffing methods for care services, working together with the persons who are listed in subsection (2) of that proposed new section. Following conversations with relevant stakeholders, we have ensured that amendment 72 will add the Scottish Social Services Council to that list, and that amendment 73 will add every health board.

Amendment 74 fulfils a request of the Delegated Powers and Law Reform Committee that all guidance in connection with the bill that is issued by Scottish ministers be published. As members are aware, at present there are no tools or staffing methods in use for social care. Amendment 79 will give the Care Inspectorate the power to review and redevelop such tools and methods once they have been developed. In doing so, Social Care and Social Work Improvement Scotland must collaborate, have regard to ministerial guidance and develop staffing tools in the same way as it would if it were developing a new staffing method. Ministers will also be able to direct the Care Inspectorate to redevelop a staffing method, if necessary.

In addition, proposed new section 82BB of the 2010 act in amendment 79 will require the Care Inspectorate, in developing, reviewing and recommending a staffing tool, to consider whether the tool should be multidisciplinary, thereby making provision consistent with regard to the new functions for Healthcare Improvement Scotland.

Amendment 76 is consequential on amendment 79 and will enable ministers to require, through regulations, use of any redeveloped staffing method that is recommended by the Care Inspectorate.

I am happy to support amendment 79A, which has been lodged by Monica Lennon.

Finally, in relation to Alison Johnstone’s amendment 125, I ask for clarification on several issues. Is it her intention that this proposed new section 82BC of the 2010 act would be restricted to reporting on supply to care service providers, or is it intended to apply more widely? I do not believe that that is clear from the amendment. If it is intended to apply only to care service providers, who does she have in mind when she refers in the amendment to “medical practitioners”? That would generally be understood to apply only to registered doctors. However, I presume that that is not who Alison Johnstone has in mind in relation to care. I also point out that care homes are private sector services and that Scottish ministers have no locus in employment or recruitment in the private sector. How does Alison Johnstone anticipate her proposal working in practice? I find the lack of clarity on certain points in amendment 125 troubling, and would therefore struggle to accept it, given that, if it were agreed to, it would become part of primary legislation. However, I will be happy to work with Alison Johnstone on an amendment for stage 3, if she is willing. I therefore ask her not to move the amendment.

I ask members to support my amendments in the group.

The Convener

I call Monica Lennon to speak to amendment 79A, and to other amendments in the group.

Monica Lennon

Amendment 79A relates to the powers of the Care Inspectorate. It would ensure that the inspectorate can review not only use of a staffing tool, but whether suppliers are complying with the general duty under section 6 to provide appropriate staffing levels. The purpose of the amendment is to clarify that the remit of the Care Inspectorate to consider staffing levels is not limited by the existence or otherwise of a staffing tool. Current inspections by the Care Inspectorate consider staffing levels already, as policy. Therefore, the amendment should not place any additional burdens or obligations on providers or on the wider social care sector.

I welcome the support of the cabinet secretary for amendment 79A.

The Convener

I welcome Alison Johnstone to the committee and invite her to speak to amendment 125 and other amendments in the group.

Alison Johnstone (Lothian) (Green)

Amendment 125 is similar to amendment 90, which concerned health services and was agreed by the committee last week. Amendment 125, too, recognises that workforce and workload are inextricably linked, and aims to ensure that the Government has considered all the relevant information that is available to it when it commissions training places for those for whom it can commission training places and who work in the care sector.

We know that care homes now care for people with far greater and more complex illnesses than they used to, including people with palliative and end-of-life needs. That means that they face increased challenges around caring for people with dementia, frailty, mobility problems and so on, and that there is a need for specialist input on nutrition and hydration.

It is significant that 65 per cent of care home residents are now assessed as requiring nursing care. In 2007, only 10 per cent of care home residents had a physical disability or a chronic illness: the figure is now 38 per cent. In the same period, there has also been a 44 per cent increase in men over the age of 95 living in care homes, and a 15 per cent increase in women over the age of 95 living in care homes.

The care home workforce data tells us that there are staff vacancies in 77 per cent of services. Therefore, my amendment 125 seeks to ensure that we give the same consideration to the care sector—which is clearly facing significant challenges—that we are giving to ensuring that there are appropriate staff in the NHS. If it is helpful, I am open to working with the cabinet secretary to progress a form of words for stage 3 that would meet with everyone’s approval.

Emma Harper

I am interested to see how the proposal would develop. In relation to Miles Briggs’s amendment 115, I am concerned that the imposition of any tools that are developed and that are nurse focused would not work in a multidisciplinary team approach. Many care homes have nursing staff, but as I mentioned before, residential care homes are people’s homes, therefore I am keen to look at collaboration and a multidisciplinary team approach. Currently, NHS nurses go to care homes to provide nursing assessments and care, and they provide services in a nursing capacity, but I am keen not to put anything in the bill that would in any way restrict the flexibility of the development of team working—multidisciplinary team collaboration—because that will be key when we look at how to develop care in the future.

Sandra White

My concerns are similar to Emma Harper’s, and they have already been raised in relation to amendment 115. My big issue is with the change from “may” to “must”, which is too prescriptive. I ask Miles Briggs to think about that. I refer again to the feedback from COSLA and others. I put on the record that David Williams, whom I have mentioned, is not only the chief officer of Glasgow city health and social care partnership, but is chair of the health and social care integration chief officers group.

I apologise to Alison Johnstone for raising concerns about her amendment 90, which has been agreed by the committee, but I am pleased that she is looking at the issue in the care sector by way of amendment 125. It needs to be looked at, but I feel that the amendment should not deal only with nursing staff. She mentioned that there are people who need nursing care in care homes: equally, there are people in care homes who do not necessarily need a nurse there all the time. Therefore, we have to consider having flexibility, so I am pleased that Alison Johnstone has said that she will be happy to work with the cabinet secretary, and perhaps the committee, as the bill moves to stage 3, because I think that the matter of amendment 125 needs a wee bit more clarity.

George Adam

I agree with my colleagues, and I will mention additional points that Scottish Care raised, in particular in relation to amendment 115. Scottish Care said that it needs flexibility and an appropriate set of tools, not the imposition of a patient acuity tool. That is interesting because it is Scottish Care that deals with care homes day in and day out. I am summarising points that it made.

Scottish Care also mentioned a failure to understand that care homes are non-clinical environments. That has been misunderstood, even during today’s discussions. It is also concerned that amendment 115 would create a tick-box list of clinical issues that pays no regard to new outcomes, which would take away from the belief that we all share, that we need to have person-centric values at the core of everything that we do.

When we look at the issues that have been raised by people in the sector, we can see why amendment 115 presents a difficulty, but it could be worked on between now and stage 3. We have to make sure that there is a joint-working collaborative approach, as Emma Harper said, because the bill is not just about nursing staff—it is about everyone who works in the sector. That is one of the most important parts of the bill.

Bob Doris (Glasgow Maryhill and Springburn) (SNP)