Health and Care (Staffing) (Scotland) Act 2019 statutory guidance: consultation

UNISON Scotland is Scotland’s largest trade union. We represent staff who provide public services in the public, third and private sectors. We are the largest union in both health and social care. We represent the entire Agenda for Change NHS and health care team and members delivering social care in both residential and at home, in the public private and third sector.

Question 1(a) Do you think the guidance is clear and easy to understand?

The Guidance has a general insistence on not being prescriptive and leaving many matters to be determined by local circumstances. There is a reliance on tools and processes (staffing methods in care and Common Staffing Method in Health settings) which have not yet been fully developed for every area of the health and social care sector. This means that it is in many cases not straightforward to determine how ‘guiding principles’ will transform into safe staffing.

The reality is that in many settings it is only after the ‘test and learn’ process has been completed that the effectiveness of the guidance, and as such the legislation, will be apparent.

We would urge the maximum level of consultation and feedback with staff and recognised trade unions during this period. It is essential that there is the same level of engagement with staff and recognised trade unions in the development of the regulations which will put the Guidance into effect. Whilst it might be accepted that the engagement structures in the NHS are good, they are not perfect. In the social care sector engagement structures are still under developed, where they exist at all.

We would say however, and this is a point to which we will return, legislation and staffing methods do not solve the problem of not having enough staff.

The Guidance should not be allowed to become a mechanism where current levels of understaffing are certified ‘safe’. To prevent this it will require a significant effort to ensure that staff are, empowered to raise concerns and have mechanisms to ensure that those concerns are acted upon. This will require practical as well as in principle or rhetorical commitments. The extent to which this is likely to happen will only become clear as processes and tools are developed.

Question 1(b) Please detail any specific areas of the guidance that you found unclear or hard to understand.

The key phrase throughout the Guidance is “appropriate staffing”. We have a concern that this becomes in essence a ‘numbers game’ where care/ service quality is a subsidiary factor. An example of this would be the redeployment of theatre nurses into general acute /medical wards. This would meet guidelines but be far from ideal or safe. In a similar vein there is active discussion within some NHS Boards that the introduction of Safe Staffing will either drive up agency costs or lead to Boards having to close NHS wards/departments.

The Guidance states “Staff need to feel safe to raise concerns at all times regarding any risks resulting from staffing” and “relevant organisations must encourage and enable staff to identify and escalate risks”. Variations on these themes occur throughout the Guidance. The principal mechanism proposed to create this is “A culture of transparency, continuous improvement and open communication – set from the top of the relevant organisation(s) – will support staff to feel safe to raise concerns about risk resulting from staffing.” This might well be the case – there is little in the Guidance to compel those currently in charge to change current cultures and there is ample evidence to suggest that the NHS is automatically defensively aggressive and risk averse when it deals with concerns which could be described as ‘critical’.

Question 2(a) Do you think the guidance is comprehensive, in that it contains sufficient detail to be able to support organisations in meeting obligations placed on them by the Act?

No. While there are welcome elements in the Guidance and the principle of the Act is one that UNISON has supported for many years there are several significant areas where we feel the Guidance does not provide sufficient detail or direction.

Some of the Guidance seems to show little grasp of what life is actually like for those working in Health or Social care settings. To take one example from the NHS. There is a requirement on organisations to encourage and enable staff to use “the real time staffing arrangements” this to be done by amongst other things making sure there is “time available on any shift for staff to notify concerns, engage in mitigation effectively and consider feedback.” The Guidance gives no indication how this time will be created/ funded or resourced. UNISON members regularly tell us that they often have to work unpaid additional hours, don’t get regular breaks and in some instances don’t have time to go to the toilet during a workday. Whilst we welcome the commitment to ‘time to raise concerns’, we are very concerned that the Scottish Government have not thought through the practical staffing and resource implication of this requirement – as such it will fail or be discredited within the workforce.

Our concerns with regard to reporting are borne out by the information we collect from our members, UNISON Scotland carried out a survey of our nursing members earlier this year. Many say they do not use the current reporting system Datix to record lack of staffing. They are in a catch-22 position where they are too overworked to take time out to record the extent of the overwork. Many say they have given up using the system as continual reports made no difference to the staffing position. Others report that managers frown on use of the system. We would reflect again on our previous comment that the NHS in particular is defensive and risk averse when it comes to perceived criticisms.

Obviously further tools are to be developed – but if they are more sophisticated or complex to use than existing systems, they will make little difference. If a requirement is to be placed on organisations to allow staff time to engage in staffing issues – there is a requirement on government to make that a meaningful possibility, that requires action to tackle the staffing crisis in both Health and Social Care.

We agree that relevant organisations should “have a template for recording disagreement,” over real time staffing issues. We are not however convinced that this “will protect staff who choose to raise objections formally.” We would like to see more detailed and robust protections for staff who are raising issues.

We would also argue that real time reports should also be shared with staff side bodies; as should the organisations response in instances where staff raise concerns and escalate concerns/risks.

Simply stating that clinical leaders should have adequate time is not enough, many clinical leaders are already conflicted on a daily basis as they try to manage an increasing workload/ demand. For the Guidance to be meaningful ‘adequate time’ must be measured, recorded and resourced. This is important in order that the responsibilities the Guidance puts on clinical leaders doesn’t mean additional workloads for those further down.

For example, the additional work on band 6 and 7 nurses have currently taken on, has resulted not only in additional work for them. But additional work for staff in other roles such as Band 5 – who in turn are more reliant upon other lower bands to undertake increased clinical roles. This ‘bumping’ has led to a significant pressure in the staffing resource. It also has a potential financial impact in respect of regrading claims.

Question 2(b) Please detail any specific areas where you felt information was missing or incomplete.

As explained earlier, given that so much of the supporting mechanisms have still to be developed we have a situation where the Guidance specified what is to be achieved but we can have little idea of how it will be achieved.

The Guidance speaks of “training for individuals with lead professional responsibility” in amongst other things risk reporting, onward reporting and further escalation; seeking clinical advice; mitigation of risk; notification of decisions; recording disagreement with a decision; requesting review of a final decision and • raising staff awareness. We would suggest that a commitment to training in relation to the Act should be more widespread amongst the workforce. This should also, to make other commitments about workers feeling comfortable with raising concerns and registering disagreement, either involve or reference Trade unions.

Whilst the development of a Common Staffing Method is welcome as a theory. There are concerns that in practice clinical judgment will be used to bend the outcomes to fit current resources and budgets, rather than, as should be developed first and then budgeted for after.

If the legislation is to have any positive impact it is important that staffing method tools and processes are developed with the aim of improvement. Not the validation of current understaffing and lack of resources.

The effectiveness of the Guidelines cannot be separated from the context in which they are being introduced. In the NHS there is a staffing crisis. This is particularly acute particularly (but hardly confined) in nursing and midwifery which has an estimated 6500 vacancies. In social care there is a massive recruitment and retention crisis. This is exacerbated by low pay, insecure employment and workload issues. In both situations issues will not be tackled by guidance but by more staff and better terms and conditions.

The Guidance outlies that staff reporting and feedback mechanisms are to be developed and encouraged. This is all very well but if staff find that using these mechanisms has no result, as is felt to be the case with the existing NHS Datix mechanism, they will not be used. Or if insecure contracts leave workers fearing repercussions as is the case in much of the social care sector. Then they will remain unused.

Similarly staff must have confidence that raising concerns is a no blame event and that in doing so their concerns will be properly considered, responded to and resolved.

The emphasis in the Guidance – and even more so in the following regulations and development of tools and methods has to be on empowering staff to raise concerns. This must be made straightforward and above all meaningful.

In relation to reporting of use Agency Staff. (7.4). These reports should also be presented to NHS Area Partnership Forums and also the Scottish Partnership Fourm. This would aid the development of a culture of transparency. It would also build confidence allowing for the APF to be involved in real time problem solving around hot spots. A commitment to do this should be put into the guidance.

The commitment to training expressed in Guidance is welcome. We do have some doubt as to how it can be delivered without an equal commitment to increased resources. Experience suggests training is often the first thing to slip when workload pressure increases.

Dedicated in work learning time for staff (In a health setting this is one of the asks we have made as part of the AFC Review) may help. Proposals around ‘protected learning time’ may help, but only if resourced and allowed for within work force planning and staffing levels.

Whilst the mechanisms which could involve staff the staff in developing staffing methods are fairly well established in Health settings they are largely absent in Social Care. This needs to be changed for the hopes present in the Guidance to be realised. Given staff shortages, the prevalence of insecure work, the absence of sectoral bargaining at a national level and the collective bargaining and representation at a local level it is very difficult to see how the Guidelines can be put into effect.