Health, Social Care and Sport Committee

Meeting date: Tuesday, March 21, 2023

Official Report 756KB pdf

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Subordinate Legislation

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Health and Care (Staffing) (Scotland) Act 2019 Amendment Regulations 2023 [Draft]

Agenda item 4 is consideration of an affirmative Scottish statutory instrument. The purpose of the draft regulations is to make ancillary provision to correct some technical errors in the Health and Care (Staffing) (Scotland) Act 2019 that arose due to amendments that were made to the Health and Care (Staffing) (Scotland) Bill during its parliamentary passage. The Delegated Powers and Law Reform Committee considered the draft regulations at its meeting on 28 February and made no recommendation.

We will take evidence on the draft regulations from the Minister for Public Health, Women’s Health and Sport and her supporting officials. Once we have had all our questions answered, we will have a formal debate on the motion.

I welcome Maree Todd, the Minister for Public Health, Women’s Health and Sport, and her officials. Sarah Cartwright is policy officer in the Health and Care (Staffing) (Scotland) Act implementation team and Cecilia McCullough, who joins us remotely, is a solicitor for the Scottish Government.

I thank you all for joining us today. I invite the minister to make an opening statement.

The Scottish Government is committed to ensuring that there is appropriate staffing in the national health service and care services to enable the provision of safe and high-quality services and the best outcomes for the people who use them. In 2019, the Parliament passed the Health and Care (Staffing) (Scotland) Bill to provide a statutory basis for the provision of appropriate staffing in both the NHS and care services. That enables a rigorous, evidence-based approach to decision making relating to staffing requirements and supports an open and honest culture that engages staff in those processes. Among other things, the 2019 act inserts new provisions relating to staffing into the National Health Service (Scotland) Act 1978 and the Public Services Reform (Scotland) Act 2010.

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Implementation of the 2019 act was paused to redeploy personnel and resources to the Covid-19 pandemic response. A new implementation team was convened last year, and the Cabinet Secretary for Health and Social Care announced in June 2022 that all the act’s provisions would come into force by April 2024.

The 2019 act was reviewed as part of the implementation work, and six technical errors were identified. During the bill’s passage through Parliament, numerous amendments were made at stages 2 and 3. On some occasions, to ensure that amendments were properly reflected throughout the bill, cross-references to other provisions in the bill required to be inserted or amended. That was completed in the majority of cases, but in six instances those updates were not made, and the act contains errors. They now require correction to ensure that amendments that Parliament made to the bill are properly integrated. That will ensure that the act can be given full effect and the Scottish Parliament’s intention delivered. The draft regulations that are before the committee make ancillary provision under section 14 of the 2019 act in order to achieve that.

The first amendment will ensure that the obligation on health boards and the Common Services Agency for the Scottish health service—commonly known as NHS National Services Scotland—to raise awareness among staff about procedures for notifying any risks that they identify relating to staffing levels under new section 12IC of the 1978 act will extend to all relevant aspects of that notification procedure.

The second amendment will ensure that the obligation on health boards and NHS National Services Scotland to raise awareness among staff about the procedures that are put in place for the escalation of risks under new section 12ID of the 1978 act will extend to all relevant aspects of those escalation procedures.

The third amendment will ensure that each health board and NHS National Services Scotland must, under new section 12IL of the 1978 act, provide employees with information about how it has identified and taken all reasonable steps to mitigate risks as part of the common staffing method.

The fourth amendment will ensure that the Scottish Ambulance Service board will, under new section 12IM of the 1978 act, be under a duty to report to the Scottish ministers annually on how it has carried out its duties under new sections 12IE, 12IF, 12IH and 12II of the 1978 act. Those are the duties to have arrangements to address severe and recurrent risks, to seek clinical advice on staffing and to ensure that adequate time is given to clinical leaders, and duties relating to the training of staff.

The fifth amendment will ensure that the Scottish Ambulance Service board will have regard to guidance that is issued by the Scottish ministers, under new section 12IN of the 1978 act, about the carrying out of its duties under new sections 12IE, 12IF, 12IH and 12II of the 1978 act.

The two amendments that relate to the Scottish Ambulance Service board will largely bring it into line with other health boards and special health boards that deliver direct patient care in terms of its obligations relating to staffing.

The final amendment relates to the review and redevelopment of existing staffing methods by Social Care and Social Work Improvement Scotland—better known as the Care Inspectorate—under new section 82C of the Public Services Reform (Scotland) Act 2010. The amendment will ensure that the Care Inspectorate may, in a revised staffing method, require persons who provide care services to put and keep in place appropriate risk management procedures, in the same way that it could when developing a new staffing method under section 82A.

Stakeholders including representatives from health boards, relevant special health boards, NHS National Services Scotland, local authorities, integration authorities, Healthcare Improvement Scotland, the Care Inspectorate, professional bodies, trade unions and professional regulatory bodies have all been invited to participate in working groups to prepare the statutory guidance to accompany the 2019 act. As part of that process, the proposed changes that are detailed in the draft regulations were circulated for comment, and no objections were raised.

I fully support the draft regulations as the means of correcting technical errors in the 2019 act. They will ensure that the act can be given full effect and that the Scottish Parliament’s intentions can be delivered. I am happy to answer any questions that members have.

Thank you. With that, we move on to agenda item 5, which is the formal debate on the Health and Care (Staffing) (Scotland) Act 2019 Amendment Regulations 2023, ?on which we have just heard evidence. I remind members that they should not put questions to the minister during the formal debate and that officials may not speak in the formal debate. I invite members to contribute.

I want to have it clarified that these technical amendments will help to allow staff to understand that they can raise issues with risk associated with staffing or staffing concerns. They will allow staff who work in NHS Scotland—I am a former employee; I need to remind folk that I am a former nurse for NHS Dumfries and Galloway—to understand that they can raise issues with risk.

These technical amendments have to be made—this is a tidying-up exercise, if you like. Is it still the minister’s view that the timescale of April 2024 is the one to which the Government is working for full implementation?

Would members like the minister to cover anything else in her summing up?

Members: No.

We are certainly working to that timescale. It is worth understanding that the working groups on implementation have been working according to the will of Parliament, so it expects the technical amendments to be made.

In response to Emma Harper’s point, I note that some of the amendments are intended to empower staff to ensure that they know the process for identifying risks and who they should report them to. They are simply technical amendments that will ensure that cross-referencing within the act is accurate and that it contains the will and intention of Parliament.

Motion moved,

That the Health, Social Care and Sport Committee recommends that the Health and Care (Staffing) (Scotland) Act 2019 Amendment Regulations 2023 [draft] be approved.—[Maree Todd]

Motion agreed to.

That concludes consideration of the draft regulations. Thank you, minister.

At our meeting next week, we will continue our scrutiny of NHS boards as well as taking further formal evidence as part of our inquiry into female participation in sport and physical activity. That concludes the public part of today’s meeting.

12:23 Meeting continued in private until 12:30.