Meeting of the Parliament

Meeting date: Thursday, December 6, 2018

Official Report 978KB pdf

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Health and Care (Staffing) (Scotland) Bill: Stage 1

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.

14:30  

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.

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?

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.

Will the cabinet secretary give way?

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.

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?

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.

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

14:44  

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.

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?

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.

14:55  

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.

15:02  

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.

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.

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—

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

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

I know that trick—I have used it myself.

15:10  

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.

15:16  

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.

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.

15:23  

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.

15:29  

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.

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?

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.

15:36  

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.

15:42  

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.

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.

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.

15:49  

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.

15:55  

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.

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?

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.

16:01  

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.

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?

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.

16:08  

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.

16:15  

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.

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?

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.

16:22  

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.

16:28  

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.

We move to the closing speeches.

16:34  

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.”

16:46  

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.

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.

16:48  

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.

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?

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.

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?

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.