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.
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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.