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Chamber and committees

Meeting date: Thursday, May 2, 2019

Meeting of the Parliament 02 May 2019

Agenda: General Question Time, First Minister’s Question Time, Rwandan Genocide (25th Anniversary), Portfolio Question Time, Business Motion, Health and Care (Staffing) (Scotland) Bill: Stage 3, Health and Care (Staffing) (Scotland) Bill, Business Motion, Motion without Notice, Decision Time


Health and Care (Staffing) (Scotland) Bill: Stage 3

The Presiding Officer (Ken Macintosh)

The next item of business is stage 3 of the Health and Care (Staffing) (Scotland) Bill. For dealing with amendments, members should have the bill as amended at stage 2, the marshalled list and the groupings of amendments.

The division bell will sound and proceedings will be suspended for five minutes before the first division, and the period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on a group of amendments should press their request-to-speak buttons as soon as possible after I call the group.

Section 1—Guiding principles for health and care staffing

The Presiding Officer

Members should refer to the marshalled list. Amendment 1, in the name of the cabinet secretary, is grouped with amendments 42 and 2 to 4.

The Cabinet Secretary for Health and Sport (Jeane Freeman)

I will speak to my amendments on the bill’s guiding principles.

Amendments 1 and 3 relate to amendments that were lodged by Alex Cole-Hamilton at stage 2. The duty to ensure appropriate staffing in proposed new section 12IA of the National Health Service (Scotland) Act 1978 sets out that

“every Health Board and the Agency”

have the duty

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

to ensure

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

In part 3 of the bill, there is an equivalent duty for

“any person who provides a care service”.

Sections 2 and 3 of the bill set out that every health board, in complying with proposed new section 12IA, and any person who provides a care service, in complying with section 6

“must have regard to the guiding principles”.

As such, the principles and general duty are intrinsically linked. Those who must follow the general duty must also have regard to the guiding principles.

As the bill is worded currently, a health board will be legally required to do the same thing twice. I want to avoid confusion for the people who are expected to understand and carry out the duties that are set out in the bill, so I gently suggest that we do not need to triplicate legal duties in order for them to take effect. I therefore ask members to support my amendments that aim to correct that matter.

Amendment 2 is a technical amendment that aims to correct section 1(1)(b) so that it refers to “those main purposes”, rather than to “the main purpose”. That will show that there are two main purposes of staffing for health and care services, following Monica Lennon’s insertion at stage 2 of section 1(1)(a)(ii), which refers to ensuring

“the best health care outcomes for service users.”

Amendment 4 is a technical amendment that clarifies that the definition of standards and outcomes for service users in section 10H of the 1978 act refers specifically to section 10H(1). That would be consistent with the specific reference to section 10H(1) in section 12IB(2)(b). I welcome Monica Lennon’s amendment 42.

I move amendment 1.

Monica Lennon (Central Scotland) (Lab)

Amendment 42 seeks to clarify that one of the main purposes of health service staffing is to ensure the best health and care outcomes for service users. The aim of my amendments at stage 2 was to ensure that the guiding principles placed the necessary focus on achieving the best outcomes for service users, which is a position on which I am sure we can all agree. I have welcomed the further discussions that have taken place to enhance that principle. Amendment 42 will ensure that all health and care service providers, including, for example, housing support services, are taken into account.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I am grateful to the Scottish Government for meeting me after stage 2 to clarify the points that have been made. I signal the support of the Liberal Democrats for the amendments in the group.

Amendment 1 agreed to.

Amendment 42 moved—[Monica Lennon]—and agreed to.

Amendments 2 to 4 moved—[Jean Freeman]—and agreed to.

Section 3—Guiding principles in care service staffing and planning

The Presiding Officer

Group 2 is on commissioning of care services. Amendment 5, in the name of the cabinet secretary, is grouped with amendments 43 and 44.

Jeane Freeman

Section 3(1) imposes a duty on care service providers to

“have regard to the guiding principles”

when they carry out the duty in section 6. Section 3(2) is about the planning and commissioning aspects, and relates to when arrangements are being secured to allow a care service to be delivered operationally by another person. The guiding principles already apply, given that commissioners need to have regard to the principles under section 3(2)(a). Amendment 5 clarifies that commissioners are also obliged to have regard to the fact that care service providers need to take the guiding principles into account.


With that in mind, I ask members to support amendment 5, which will correct the bill. I believe that the amendment provides the clarity that is needed to assist the people who need to understand and implement the legislation.

I am also happy to support David Stewart’s amendments 43 and 44.

I move amendment 5.

David Stewart

At stage 1, the committee heard from groups in the social care sector that were concerned that the bill places all its focus on care providers and does not adequately recognise the impact that commissioning decisions on funding resources have on staffing levels. I therefore lodged a stage 2 amendment seeking to place a duty on commissioners of care to ensure that providers are given appropriate resources under contract. That would have required them to take into account some of the factors that providers have to consider when setting staffing levels.

Following the raising of some concerns by the Government and local authorities, I agreed to further discussions on how the same principles could be agreed. The products of the discussions are amendments 43 and 44.

Amendment 43 would require local authorities and integration authorities to satisfy themselves, prior to agreeing a contract for care, that the contract for financial agreement will give providers

“adequate resources for the provision of ... appropriate”

staffing levels. In doing so, they will have to consider for themselves the same factors that care service providers are required to take into account under the duty that will be placed on them by section 6.

Amendment 43 also includes provision for local authorities and integration authorities, when determining whether providers are to be given adequate resources, to determine what the impact of entering the contract would be on the totality of resources—namely, the impact on the resources that would be available for other services.

It is my understanding that the provisions would mean that no local authority or integration authority should enter a contract or financial arrangement for provision of the care service when it believes that such an arrangement would leave it short of resources for delivery of other services for which it is responsible.

The draft of amendment 43 came from the Government. Therefore, before I move it, I ask the cabinet secretary what she understands the effect of the amendment will be.

Jeane Freeman

Local authorities should consider proposed new sections 3(2B)(a) and 3(2B)(b) when planning or securing the provision of a care services.

Proposed new section 3(2B) would require local authorities, when determining what constitutes “adequate resources” under proposed new section 3(2A), to have regard to

“the factors listed in section 6(2)(a) to (e)”

of the bill, and to have regard to

“the effect of securing the contract, agreement or arrangements on the resources available for the provision of all other services (including care services) for which the local authority ... is responsible.“

That consideration would happen before finalising any contract, and the provision will not prohibit the local authority from entering into a particular contract. Both parties will enter into the contract having agreed the terms and conditions of that contract.

We have all recognised the complexity and difficulty of finding a suitable provision on this issue. Should Mr Stewart, on reflection, believe that amendment 43 does not offer the improvement that he is seeking, I will not object if he seeks to withdraw it. That said, I wish to draw members’ attention to the fact that the bill still provides that commissioners must have regard to the guiding principles and duties that the bill places on providers in their planning and commissioning of services.

The Presiding Officer

Mr Stewart, would you like to come back in? It is unusual, but you may.

David Stewart

I thank the cabinet secretary for her answer. Under the bill, commissioners must have regard to the duties on care providers. I am reluctant to see that being undermined. With permission, Presiding Officer, I seek to withdraw amendments 43 and 44.

The Presiding Officer

The amendments have not been moved, so there is no need to withdraw them. However, the point is noted.

I say to members that the way in which groups are normally managed, the person who moves the first amendment in the group gets the chance to speak. Other members then get one chance to speak on their amendments in the group, if any, and to all the other amendments in the group. The mover of the first amendment then gets to conclude. I am afraid that it is therefore not possible to have interaction such as we have just seen unless the cabinet secretary or somebody else requests to speak. However, I am flexible, so it was fine in this case.

I am just explaining the rules to make sure that you all know them.

I turn to—[Interruption.]

The Presiding Officer

I call the cabinet secretary to indicate whether she wishes to press or to seek to withdraw amendment 5.

Jeane Freeman

I will press amendment 5.

The Presiding Officer

I have officials to keep me straight on the rules, too—as is quite clear.

Amendment 5 agreed to.

Amendments 43 and 44 not moved.

The Presiding Officer

Group 3 is on reporting on staffing by care services. Amendment 6, in the name of the cabinet secretary, is grouped with amendments 45, 46, 39 and 39A to 39D. If amendment 6 is agreed to, I cannot call amendments 45 and 46, due to pre-emption.

Jeane Freeman

I was pleased to have the support of all parties at stage 2 for effective reporting on the progress of our staffing approach. Effective planning of staffing will feed into and support workforce planning at local and national levels. I particularly welcome Monica Lennon’s focus on ensuring transparency around the challenges that will be faced when carrying out the duties in the bill.

Amendment 39 will insert in part 3 of the bill a new section that will place a duty on ministers to publish an annual report on staffing levels in care services, particularly on the numbers of specific health professionals working in such services.

I am pleased to support amendments 45, 46, 39A, 39C and 39D in Monica Lennon’s name, and 39B in Alison Johnstone’s name.

I note that amendment 46 would remove subsections (7) to (9) from section 3. On that basis, I am content that the reporting duty on local and integration authorities in section 3(6) remain in the bill. Therefore, when we have concluded the debate on this group of amendments, I will not press amendment 6, which is in my name. I move it now merely in order that we can get into that debate.

I move amendment 6.

The Presiding Officer

The cabinet secretary has moved amendment 6, so I will ask her to seek to withdraw it later.

I call Monica Lennon to speak to amendment 45 and the other amendments in group 3.

Monica Lennon

Just keep me right, Presiding Officer.

At stage 2, I lodged amendments with the aim of establishing reporting requirements on local authorities in relation to the duties that the bill will place on them as commissioners of care. The amendments were intended to aid scrutiny of the new duties on staffing levels that the bill creates.

The cabinet secretary’s amendment 6 would move reporting duties on care service staffing levels into part 3 of the bill.

I welcome amendment 39 and the clarity that it gives on where information on care service staffing levels can be found. However, I remain of the opinion that some reporting should be required of local authorities and integration authorities because the bill still places specific duties on them. Therefore, I ask members not to support amendment 6, which is in the cabinet secretary’s name, and instead to consider my amendments 45 and 46.

Amendment 46 will clarify that local authorities need make available only information on how they have complied with their duties publicly. That recognises that local authorities are accountable to their local electorates.

Amendment 45 will remove the reporting duties on ministers covered by the cabinet secretary’s amendment 5; it will also remove detailed outcomes from reports, because that might not always be possible through commissioning structures.

I have lodged a number of other amendments that aim to strengthen amendment 39. Amendments 39A and 39D would ensure that the discharge of staff training requirements on providers under section 7 are also included in Scottish ministers’ reports. That is important because future staffing tools that are mandated for use by Scottish ministers are likely to come with additional training requirements, so their implementation should be captured in staffing reports.

At stage 2, the cabinet secretary made it clear that, given current commissioning structures, Scottish ministers do not directly contract with care providers and therefore cannot directly provide private providers with certain funding. Despite that unsatisfactory position, the cabinet secretary also stated at stage 2 that the Scottish Government has policy approaches that come with financial commitments; for example, the living wage. In such instances, it is a matter for the Scottish Government and those who are in receipt of funding, such as local authorities, between them to decide whether the money is correctly passed on.

Amendment 39C would require ministers’ reports to include information on the steps that they have taken to ensure that such money is passed on so that providers have access to funding to assist in discharging their duties under the bill.

I am grateful to the cabinet secretary for her comments and for providing clarity on amendment 6. I think that it was amendment 6. This is not straightforward, Presiding Officer.

I will be moving the amendments in my name.

Alison Johnstone (Lothian) (Green)

Amendment 39B would require the Scottish ministers to set out how the information that will be contained in its annual reporting on care services will inform future workforce planning. At stage 2, I lodged an amendment that aimed to ensure that the Government would consider all relevant information available to it when it commissions training places for people who work in the care sector. We know that care homes now care for people with more complex illnesses than was previously the case, including people who require palliative care, and that there is a need for specialist input on aspects of care including nutrition and hydration.

My stage 2 amendment sought to ensure that, in relation to the care sector, which is facing significant challenges, and particularly at this time of focus on integration, we give the same consideration to ensuring that there are appropriate staff as we do in relation to the national health service. I did not press that amendment at stage 2 because of members’ concerns that it was too prescriptive, but I know that we all agree that it is absolutely essential that we have appropriate and safe staffing levels in the care sector.

Importantly, amendment 39B will ensure that Scottish ministers take account of the reporting on staffing in care services that will be established by amendment 39 when

“determining the future supply of ... registered nurses”

and other health and care professionals.

I will vote for amendments 45 and 46, in the name of Monica Lennon, because I agree that it is still a worthwhile and useful endeavour for local authorities and integration authorities to publish the proposed information.

The Presiding Officer

I ask the cabinet secretary, having moved amendment 6 to allow debate on the group, to wind up on the group and to say whether she wants to press or withdraw the amendment.

Jeane Freeman

I will not press it.

Amendment 6, by agreement, withdrawn.

Amendments 45 and 46 moved—[Monica Lennon]—and agreed to.

Section 4—NHS duties in relation to staffing

The Presiding Officer

Group 4 is on the duty on health boards and care services to ensure appropriate staffing: staff wellbeing. Amendment 7, in the name of Alex Cole-Hamilton, is grouped with amendments 8, 9, 37 and 38.

Alex Cole-Hamilton

It gives me pleasure to speak to the amendments in my name in this group and in support of the other amendments in the group. At stage 2, I was gratified when members of the Health and Sport Committee agreed to amendments in my name that expanded the scope of the bill and the definitions of safety that are used in it. Unsurprisingly, the bill was first drafted with the safety of patients in mind, and that should be the starting point for any such legislation. However, during the stage 1 evidence, the committee was told a compelling story about a situation on a mental health ward when the Royal College of Nursing phoned the duty charge nurse one night to ask whether the ward was safely staffed and the charge nurse said, “We’re safe for the patients but not for us.” The point is that the ward operated on an attack-response basis and there was insufficient staffing that night to allow staff to protect each other if something occurred.

So it was that I, with the help of the RCN, drafted amendments to increase the consideration of the safety of staff in the bill, and those amendments were agreed to at stage 2. I am grateful to the Government for bringing to my attention potential problems in relation to the devolution settlement, in that the amendments that were agreed to at stage 2 strayed into health and safety at work legislation, which is of course reserved. Working with the Government, I have constructed amendments 7 and 9 in my name, which absolutely retain the meaning of the original stage 2 amendments but recognise the nuances of the devolution settlement.

I offer the support of the Liberal Democrats for the other amendments in the group.

I move amendment 7.

Jeane Freeman

I thank Mr Cole-Hamilton for taking the time to speak to me about the amendments that he inserted at stage 2. We share the view that the wellbeing of staff is of paramount importance, and I welcome his amendments 7, 9 and 37.

My amendments 8 and 38 are intended to remove the words “and services” from the general duties for health and care services. Those words were inserted at stage 2, but they are unnecessary as healthcare is already defined in proposed new section 12IG of the National Health Service (Scotland) Act 1978 as

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

Further, the care service is already defined in section 9 as

“a service mentioned in section 47(1) of the Public Services Reform (Scotland) Act 2010”.

The words “and services” therefore create unnecessary duplication, so I ask members to support amendments 8 and 38.

Amendment 7 agreed to.

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

Amendment 9 moved—[Alex Cole-Hamilton]—and agreed to.


The Presiding Officer

Group 5 is on the duty on health boards to ensure appropriate staffing: agency workers. Amendment 47, in the name of Anas Sarwar, is the only amendment in the group.

Anas Sarwar (Glasgow) (Lab)

What amendment 47 seeks to do is pretty clear from its wording; it seeks to ensure value for money for our health boards and NHS Scotland more widely. We have seen agency staff being paid whole-time equivalent salaries that are four times as much as we pay NHS staff. Amendment 47 would at least set the principle of a cap so that such payments do not go above 150 per cent of a whole-time equivalent NHS salary. It would leave protection for emergency situations in which health boards have to employ people from agencies at salaries above that rate, but it would also ensure that there is a responsibility to publish the reasons why that has happened, the number of occasions on which it has happened and what the trends behind that are. There would also be a ministerial responsibility to update on why those situations have occurred.

We have had very positive interaction with the Government since lodging a similar amendment at stage 2, which I did not press in order that we could have further interaction with the cabinet secretary. I am pleased with how that interaction has gone and I hope that, given that we have accepted all the Government’s suggested amendments to our amendment, the cabinet secretary will support amendment 47.

I move amendment 47.

Jeane Freeman

I am grateful to Mr Sarwar for working with me and my team since stage 2 on the amendment.

I am still of the belief that the bill as amended will drive the necessary changes in the way in which staffing decisions are made to reduce the use of agency staff. In developing and scrutinising the legislation, both the Government and Opposition members have considered the whole-system approach to staffing decisions. By that I mean that we have looked beyond the evidence-based staffing tools and methodologies and considered how decisions are taken at every level of the organisation.

There has also been a focus on how those decisions are fed back to the staff who have informed them. That is why I, Miles Briggs, David Stewart and others have put a significant amount of effort into working with our stakeholders to finalise the provisions on real-time assessment of staffing, escalation processes and appropriate clinical advice. It is that system of effective and informed governance that will drive the changes that we all wish to see. In ensuring that staffing decisions are taken based on workload and taking into account appropriate clinical evidence, we will move towards the appointment of a sustainable staffing establishment. It will also ensure that, if agency staff are used, that is as part of an appropriate risk-mitigation approach.

I absolutely appreciate the intention behind Mr Sarwar’s amendment 47 and I thank him again for taking the time to discuss it further with me. I think that there are some difficulties with the drafting of amendment 47 and that the requirements on boards could be considered to be ambiguous, but I believe that that can be clarified in the statutory guidance that will accompany the bill. In this instance, it is my view that the value of the intention outweighs those points of difficulty and I am therefore happy to support amendment 47.

Anas Sarwar

I welcome all the content of the cabinet secretary’s response. I think that we both have the exact same intention and therefore I welcome her support for my amendment.

Amendment 47 agreed to.

The Presiding Officer

Group 6 is on staffing assessment and risk escalation by health boards. Amendment 10, in the name of the cabinet secretary, is grouped with amendments 48 to 59, 11, 12, 60 to 62, 20 and 23.

Jeane Freeman

I welcome all the amendments in this group lodged by Mr Briggs and Mr Stewart and I thank them for their collaborative work on the provisions. I also thank the members of the escalation working group, who have put a significant amount of effort into ensuring that the provisions work for all staff groups and across our healthcare system.

My amendments are fairly technical in nature. Amendment 10 inserts the word “safe” into section 12IAA(2)(a)(ii) so that it is consistent with the wording in the general duty for health following the addition of that wording by Mr Cole-Hamilton at stage 2.

Amendment 11 inserts reference to the new paragraph added through David Stewart’s amendment 59 into the list of those staff members who must be notified of every decision made in relation to risk so that all those who have been involved in attempting to reach a decision on the mitigation of a risk under this section should be notified of the final decision reached and should have the opportunity to record disagreement with that decision if they wish.

Similarly, amendment 12 inserts reference to the new paragraph to section 12IAB(2)(d)(iv), so that those who have provided clinical advice in any part of the procedures put in place under the section should be notified of the decision reached and, again, should have the opportunity to record disagreement with that decision if they wish.

Amendment 20 amends section 12IE, which is entitled “Reporting on staffing”, to include reference to section 12IABA, on the duty to have arrangements to address severe and recurrent risks, inserted by David Stewart’s amendment 62; section 12IABB, on the duty to seek clinical advice on staffing, inserted by Mr Briggs’s amendment 63; section 12IAD, on the duty to ensure adequate time is given to clinical leaders, inserted by my amendment 18; and section 12IAE, on the duty to ensure appropriate staffing and training of staff, which was inserted at stage 2 by Ms Johnstone. That will ensure that health boards and the agency must include information on their compliance with those duties in the reports that they are to provide to ministers on an annual basis.

Finally, amendment 23 sets out that ministers can issue guidance under section 12IF on the new duty to have arrangements to address severe and recurrent risks imposed by the new section 12IABA.

I move amendment 10.

David Stewart

I thank the cabinet secretary for the very helpful meetings that we had about planning these amendments to make sure that we have a stronger bill.

The Royal College of Nursing, representatives of which I welcome to the gallery, made it clear from the start of the bill process that the bill will be effective only if it deals with how to manage day-to-day staffing levels, not just with setting expected staffing establishments. For that reason, I was glad to see the introduction of provisions on risk assessment and escalation by the Government at stage 2.

My amendments 48 to 51 and 53 to 60 make only minor changes to those successful provisions from stage 2. The purpose of the amendments is purely technical; they are aimed at strengthening the risk assessment and escalation processes that have been established. To that end, I will speak to the amendments according to their purpose rather than in chronological order.

Amendment 48 ensures that any risk assessment procedures include a method by which staff members may notify responsible individuals of possible risk, closing a potential gap in the procedures that currently exist.

Amendments 49, 53 and 54 alter the precise definition of the individuals and management structures involved in the process so that non-clinical managers who bear responsibility for staffing levels can be included in the procedures. That said, the role of clinical experience and advice in staffing decisions cannot be overlooked. It is therefore protected by amendments 55 and 57, which put a requirement on decision-making individuals in the structure to seek and have regard to clinical advice.

Amendments 56 and 58 empower the individuals involved to take decisions on how to mitigate any risk that is identified and escalated. Amendment 59 allows for the escalation of any risk up the management chain as far as necessary and potentially up to board level.

Amendment 60 ensures that there is an opportunity and process for individuals to request a review of a decision on risk, should they be concerned or dissatisfied by the final outcome. Risk assessment notification procedures are only of use if staff are aware of them and they can be utilised. For that reason, amendment 51 requires health boards to proactively encourage and enable staff to make use of the procedures. In the same vein, I can confirm that we support amendments 52 and 61, lodged by Miles Briggs, which similarly ensure that staff are equipped to use the procedures.

Finally, amendment 62 seeks not to alter, but to add to the provisions that are already in place. As important as real-time risk assessment and escalation are, it is crucial that they are not used purely for firefighting on the ground. Health boards and those who scrutinise them should be able to have an overview of the risks to their staffing levels, especially if those risks are substantial and likely to recur. Where there are long-standing vacancies across a number of key posts in our health service, day-to-day assessment and mitigation will not be satisfactory or sufficient.

Therefore, amendment 62 establishes a requirement for health boards to keep a record of the most significant and potentially recurring risks, as well as to put in place a plan for how those will be managed. The majority of health boards should already have a similar process in place for risks to staffing. Amendment 62 merely makes the requirement clear and should provide a mechanism for linking the situations staff have to deal with on the ground to higher-level monitoring and planning.

Miles Briggs (Lothian) (Con)

Amendment 52 relates to amendment 105, which I lodged at stage 2. However, unlike that amendment, amendment 52 takes account of the fact that only those individuals with lead professional responsibility will be responsible for carrying out the staffing assessment procedures and so it sets out that those individuals are to be given the training and resources necessary to carry them out.

Similarly, amendment 61 provides that individuals with lead professional responsibility and other senior decision-makers are to be given the training, time and resources necessary to carry out the risk escalation procedures detailed in section 12IAB. I ask members to support both amendments 52 and 61.

The Presiding Officer

As no other members wish to speak, I invite the cabinet secretary to wind up.

Jeane Freeman

I have nothing further to add, Presiding Officer.

Amendment 10 agreed to.

Amendments 48 to 51 moved—[David Stewart]—and agreed to.

Amendment 52 moved—[Miles Briggs]—and agreed to.

Amendments 53 to 59 moved—[David Stewart]—and agreed to.

Amendments 11 and 12 moved—[Jeane Freeman]—and agreed to.


Amendment 60 moved—[David Stewart]—and agreed to.

Amendment 61 moved—[Miles Briggs]—and agreed to.

Amendment 62 moved—[David Stewart]—and agreed to.

The Presiding Officer

Group 7 is on clinical role and advice in health board governance. Amendment 63, in the name of Miles Briggs, is grouped with amendments 18, 18A and 18B.

Miles Briggs

Amendment 63 is an alternative to amendment 123, on the role of the designated person, which I lodged and then withdrew at stage 2.

I have had a number of discussions with the cabinet secretary to agree an alternative approach to ensure that the bill captures the crucial role of clinical advice in relation to the decisions that are made by boards under the various duties that are placed on them by the bill.

Rather than requiring health boards to designate a person, amendment 63 seeks to put them under a duty to put in place arrangements to ensure that clinical advice is sought in relation to staffing decisions and any arrangements that they put in place in relation to staffing, such as the development of a risk escalation process under section 12IAB of the 1978 act, and to have regard to that advice.

When a board makes a staffing decision that goes against clinical advice, that must be noted, and those who provided the advice must be informed. Boards must also identify any risks that might arise as a result of that decision and take appropriate action to mitigate them.

Amendment 63 also provides for an internal reporting procedure, which is an important element in relation to board transparency and accountability. Senior clinical professionals would report to the members of the board at least quarterly on the extent to which—in their view—the board was complying with its duties under the bill. The inclusion of the phrase “at least” would allow them to submit reports to the board at any time if they felt that it was not meeting those duties. I ask members to support this alternative approach.

I move amendment 63.

Jeane Freeman

Again, I start by expressing my gratitude to Mr Briggs for working with me following the stage 2 proceedings. As he said, amendment 63 seeks to amend the bill by placing health boards under a duty to put in place arrangements to ensure that they seek clinical advice from senior clinical professionals, and to have regard to that advice in reaching any decision on staffing.

I agree with Mr Briggs on the importance of ensuring that the professional voice is heard. That is already woven throughout the bill, but I believe that amendment 63 strengthens the approach and is the appropriate way to ensure that health boards must seek that professional advice, while ensuring that the accountability for decisions remains with the board. I am therefore happy to support amendment 63.

Amendment 18 in my name will remove and replace proposed new section 12IAD of the 1978 act. I fully recognise the unique role of the senior charge nurse and agree that it is important that the role is protected. However, I do not believe that the existing wording of section 12IAD—which does not take account of the multidisciplinary teams or allow for flexibility with regard to the size of the team and the service delivery model—is the best way to achieve that.

It is not always appropriate to require health boards to make all senior charge nurses 100 per cent non-case load holding. One example of many would be on the Shetland Isles, where a number of community nursing teams are spread over the islands, with between two and eight members of staff in each. Two senior charge nurses currently provide clinical leadership across all those teams. As currently drafted, section 12IAD would not allow for that model and would require a senior nurse in each team to be 100 per cent non-case load holding. Each of those nurses would have to be backfilled. That approach is not sustainable and would not allow health boards to develop models of care that suit their local needs and their patients.

Because the definition of “caseload holding” is tied to the wider requirement to meet patient needs and not to the more specific requirement to provide direct patient care, I do not believe that it delivers the intention of ensuring that senior charge nurses have protected time to fulfil their clinical leadership role, and I imagine that it would be difficult for boards to identify senior nurses who were not required to meet patient needs. I am also aware of stakeholder concerns that a requirement for a fully non-case load holding senior nurse in every rostered location could have the unintended consequence of diverting resources away from other clinical team leaders.

For those reasons, it is essential that we replace the existing section 12IAD with a provision that works in all clinical settings. Therefore, I have worked with Ms Johnstone and stakeholders from a number of professional groups to develop an amendment that applies to not just senior charge nurses but whomever the appropriate clinical team leader is for a team of staff, be that a midwife, an allied health professional, a nurse or a doctor.

Amendment 18 seeks to recognise the unique roles and responsibilities of all clinical team leaders and to ensure that they receive adequate time to discharge their leadership responsibility and their other professional duties. It will provide flexibility for the appropriate amount of time to be allocated, depending on the local context, the size and nature of the team, and the healthcare setting. I ask members to support amendment 18.

I am content with Ms Johnstone’s amendments 18A and 18B to my amendment 18, and I welcome her support for it.

Alison Johnstone

Amendments 18A and 18B have come about as a result of discussions with the Royal College of Nursing, allied health professionals, the Royal College of Midwives and the Government.

At stage 2, as members heard, I was successful in amending the bill to ensure that senior charge nurses will have the time that they need to carry out their important clinical leadership roles. The results of a freedom of information request from the Royal College of Nursing to NHS boards show that, of the 911 whole-time equivalent senior charge nurses that were identified in September 2017, only 115 were non-case load holding. I listened to what the cabinet secretary said, and I am sure that she will agree that there are many occasions when it is entirely appropriate for senior charge nurses to be non-case load holding. We must ensure that that is the case when that is appropriate.

I am pleased that we now have a proposal that all healthcare professionals are content with, but I was happy to push my stage 2 amendment, because nurses make up 42 per cent of the NHS workforce. My new amendments have been welcomed by nurses, midwives and allied health professionals. They seek to make absolutely sure that all lead professionals will have sufficient time and the resources that they require to carry out their leadership role and that that role is fully recognised.

Amendment 18A seeks to amend amendment 18 to ensure that clinical leaders have the resources that they require, as well as the time, to satisfactorily discharge their leadership responsibilities. Similarly, amendment 18B seeks to clarify that clinical leaders need sufficient time to “lead” the delivery of healthcare because, arguably, all healthcare professionals and staff “contribute to” its delivery.

Amendment 63 agreed to.

The Presiding Officer

Group 8 is on the duty on health boards to ensure appropriate staffing: numbers and training of healthcare professionals. Amendment 13, in the name of Alison Johnstone, is grouped with amendments 15, 17 and 19.

Alison Johnstone

Proposed new section 12IAC of the 1978 act will ensure that enough student places are offered to train a workforce that will better ensure that we deliver the healthcare that will meet Scotland’s changing needs. Amendment 13 seeks to acknowledge that there are factors that are outwith the Scottish ministers’ control, but still requires them to take “all reasonable steps” to ensure that there are sufficient numbers of registered healthcare professionals.

Amendment 15 seeks to add a stipulation that the Scottish ministers must take into account variation in staffing needs that are caused by differences in geographical areas. The healthcare needs of rural populations often differ greatly from those of more urban communities. Our rural and island NHS boards face particular challenges around recruitment and retention, and amendment 15 will ensure that the Scottish ministers have regard to rural-specific issues in their determinations.

Amendment 17 seeks to clarify what is expected of the Scottish ministers in reporting to Parliament on the provisions in question and setting out the extent to which ministers’ compliance with the duty to comply with section 12IAC has enabled health boards to comply with their duty to ensure appropriate staffing under section 12IA.

Section 12IAE places a duty on NHS boards to ensure that employees receive the time to carry out continuing professional development. NHS governance standards already state that employers will give time to staff for CPD but, as we are all too well aware, that time is often lost because of the demands on staff and their time. Amendment 19 will ensure that employees will receive sufficient time and resources to undertake training, but it will allow health boards to take a reasonable approach in determining what is appropriate training and resourcing.

I move amendment 13.

Jeane Freeman

I welcome Ms Johnstone’s amendments, and I am grateful that we were able to work on them. In particular, I am pleased about the recognition of the open-ended nature of section 12IAE, which was inserted by her amendment at stage 2. Amendment 13 will ensure that health boards must ensure that appropriate time is provided for training, provided that continuity of staff and high-quality services are maintained. I offer my support for her amendments.

Amendment 13 agreed to.

The Presiding Officer

Group 9 is on the application of duties in the bill to special health boards. Amendment 14, in the name of the cabinet secretary, is grouped with amendments 16 and 24 to 35.

Jeane Freeman

New section 12IAC of the 1978 act, which places a duty on the Scottish ministers to ensure that sufficient numbers of staff are available to every geographical health board and the Common Services Agency to enable them to comply with the general duty, was inserted at stage 2 by Alison Johnstone. My amendments 14 and 16 will ensure that that duty also applies to clinical-facing special health boards, meaning the State Hospitals Board for Scotland, the Scottish Ambulance Service, NHS 24 and the national waiting times centre board.

Amendments 24 to 35 will ensure that the new sections that are being inserted through stage 3 amendments, along with new section 12IAE on the training of staff, will also apply to those special health boards.

I move amendment 14.

Amendment 14 agreed to.

Amendment 15 moved—[Alison Johnstone]—and agreed to.

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

Amendment 17 moved—[Alison Johnstone]—and agreed to.

Amendment 18 moved—[Jeane Freeman].

Amendments 18A and 18B moved—[Alison Johnstone]—and agreed to.

Amendment 18, as amended, agreed to.


Amendment 19 moved—[Alison Johnstone]—and agreed to.

The Presiding Officer

Group 10 is on the duty to follow the common staffing method for healthcare. Amendment 64, in the name of Miles Briggs, is grouped with amendments 65 to 69, 21 and 22.

Miles Briggs

I have met the cabinet secretary to discuss the amendments that were made to the bill at stage 2, and her skills of persuasion have convinced me that further amendment of new section 12IB of the 1978 act is required to make it clear that setting the staffing establishment is not the only purpose of the common staffing method and to avoid any duplication that might cause confusion among those responsible for carrying out the method. I made it clear at stage 2 that it was never my intention to prevent the common staffing method from being used for other purposes, such as supporting the redesign of services.

With that in mind, amendments 64, 68 and 69 would remove new sections 12IB(1A) and 12IB(1B) of the 1978 act, which were placed in the bill by an amendment of mine at stage 2, and instead alter new section 12IB(2)(d) so that it states that, having followed the steps in the common staffing method, the health board is to decide “what changes (if any) are needed as a result to its staffing establishment, and to the way in which it provides health care.” A definition of the term “staffing establishment” is provided.

Amendment 65 clarifies that the measures for monitoring and improving the quality of healthcare that are published as standards and outcomes by the Scottish ministers under section 10H(1) of the 1978 act and that are to be taken account of as part of the common staffing method include any measures that are developed as part of a national care assurance framework.

Amendment 67 would make a minor change to the common staffing method. At stage 2, I lodged an amendment, which was agreed to by the committee, that added a new step in the common staffing method that requires health boards to take account of the experience of using the real-time assessment and risk escalation processes in new sections 12IAA and 12IAB of the 1978 act. It seems to me that the new linked duty in David Stewart’s amendment 62, which we have already debated, to have arrangements in place to address severe and recurrent risks, should also be included in that step in the common staffing method. Therefore, amendment 67 would add into the new step a reference to new section 12IABA.

I ask members to support all my amendments, and I move amendment 64.

David Stewart

I have only one minor amendment in the group. At stage 2, a number of additions and alterations were made to the bill in order to make explicit, and to protect, its multidisciplinary nature. Staff groups for which there is not yet a staffing tool had expressed concern that using the existing tools might draw resources away from other staff groups—an unintended consequence of not yet having multidisciplinary tools in place. At stage 2, therefore, I lodged an amendment that would require the impact on other staff groups to be taken into account in using the common staffing method to establish staffing levels.

Amendment 66 seeks only to alter the wording of that addition. The language of the bill refers to the tools that should be used for different types of “health care” rather than different types of professions, and amendment 66 would change the wording of my stage 2 addition to reflect that. The original purpose would remain the same: that the delivery of services for which a staffing tool did not yet exist should not be overlooked or understaffed by appropriate professionals so that statutory establishments could be met elsewhere.

Jeane Freeman

I am pleased to offer my full support to Mr Briggs’s amendments 64, 68 and 69.

Amendment 22 is consequential to Mr Briggs’s amendment 68 in that it amends the words “staffing levels” in new section 12IF of the 1978 act—“Ministerial guidance on staffing”—to “staffing establishment” for the purpose of consistency.

Amendment 21 is a technical amendment to clarify that guidance may cover a step in the common staffing method that was inserted at stage 2.

I support Mr Briggs’s amendments 65 and 67 and Mr Stewart’s amendment 66, which provide helpful clarifications of the common staffing method that is set out in new section 12IB of the 1978 act.

The Presiding Officer

As no other member wishes to speak to this group, I call Miles Briggs to wind up and to press or withdraw amendment 64.

Miles Briggs

I have nothing further to add, Presiding Officer.

I press amendment 64.

Amendment 64 agreed to.

Amendment 65 moved—[Miles Briggs]—and agreed to.

Amendment 66 moved—[David Stewart]—and agreed to.

Amendments 67 to 69 moved—[Miles Briggs]—and agreed to.

Amendments 20 to 23 moved—[Jeane Freeman]—and agreed to.

Section 5—Application of duties to certain Special Health Boards

Amendments 24 to 35 moved—[Jeane Freeman]—and agreed to.

Section 5A—Role of Healthcare Improvement Scotland in relation to staffing

The Presiding Officer

Amendment 36 is grouped with amendment 70.

Jeane Freeman

Amendment 36 is a technical amendment that adds to the list of duties, at new section 12IH of the 1978 act, that Healthcare Improvement Scotland “must monitor the discharge” of

“by every Health Board, relevant Special Health Board”

and the Common Services Agency. That will ensure that HIS will have oversight of the discharge by health boards of every aspect of the legislation. Having worked with Miles Briggs prior to today, I am also happy to support amendment 70, which is in his name.

I move amendment 36.

Miles Briggs

Since stage 2, I have had helpful discussions with the cabinet secretary around how Healthcare Improvement Scotland will review and develop staffing tools in the health service and what evidence and guidance it will take into account while doing so. I hope that amendment 70 reflects that and ensures that the development of staffing tools and methods continues to be based on the best available professional guidance and clinical evidence.

Therefore, I ask members to support amendment 70.

The Presiding Officer

As no other member wishes to speak to this group, does the cabinet secretary wish to add any comments in winding up?

Jeane Freeman

I have nothing further to add, Presiding Officer.

Amendment 36 agreed to.

Amendment 70 moved—[Miles Briggs]—and agreed to.

Section 6—Duty on care service providers to ensure appropriate staffing

Amendment 37 moved—[Alex Cole-Hamilton]—and agreed to.

Amendment 38 moved—[Jeane Freeman]—and agreed to.

Section 7—Training of staff

The Presiding Officer

Amendment 71, in the name of Monica Lennon, is grouped with amendments 72 to 78.

Monica Lennon

In February, the fair work convention’s report “Fair Work in Scotland’s Social Care Sector 2019” found that the social care sector is not consistently delivering fair work and that its ability to do so is hindered by the current funding and commissioning structures. We know that the bill will not produce the additional caring staff that Scotland needs, but Scottish Labour believes that improving conditions in the sector would be a key step to addressing the social care challenges that Scotland currently faces.

Section 7 requires care providers to provide their staff with appropriate training for their jobs and suitable assistance in completing that training, and those provisions are an encouraging recognition of the need to support care service workers better. The guiding principles of staffing in section 1 contain the provision that staffing should

“be arranged while ... ensuring the wellbeing of staff”.

Amendments 71 to 78 in my name would add to those provisions along fair work principles. The bill does not contain any definition of “wellbeing”, but I would argue that my amendments go some way towards defining the standards required by wellbeing, as they would see care service workers properly reimbursed for costs that are incurred through the course of their work, be they uniform and clothing costs, travel costs for journeys between service visits, fees for necessary professional registrations or the costs of any training that workers must undergo. It is not acceptable that staff are still required to pay out of their own pocket for such items.

Amendment 75 would place on a statutory footing the Scottish Government’s current policy commitment to care service workers being paid a living wage, while amendment 77 defines such a living wage using language that is lifted straight out of the Scottish Government’s own Procurement Reform (Scotland) Act 2014. Amendment 76 and consequential amendment 78 would ensure that care service workers are given contracts with clearly defined hours, which would give them the security that a zero-hours contract could never offer.

The bill acknowledges that staffing is central to the delivery of “safe and high-quality” health and care services, and amendments 71 to 78 are in line with that principle. The social care that service users want and need cannot be delivered by staff who are overworked, stressed, struggling to get by and at risk of burn-out, and I know that the cabinet secretary understands and, indeed, agrees with that sentiment. I believe that the amendments would give Scottish workers in care services a guarantee of fair work.

Since I lodged the amendments last week, a number of organisations have expressed to me and colleagues their view that such standards should definitely be in place. However, I have appreciated the opportunity to talk to the cabinet secretary and her officials about these amendments, and I have taken on board their concerns that some of them fall outside the Parliament’s legislative competence. Moreover, the cabinet secretary has, in our discussions, confirmed that she is supportive of the principle that the amendments aim to meet, and I know that many others in the chamber concur with that view. I am not clear as to how my amendments substantially differ from the apparent workers’ rights provisions in sections 1 and 7, but I acknowledge the Scottish Government’s concern, and I do not want the debate to become about setting one legal opinion against another, given that there is so much in the bill that we can support and, indeed, which we have already supported.

The cabinet secretary has indicated to me that, as an alternative, she will ensure that guidance accompanying the bill will make clear that these fair work standards are to be followed in the delivery of care services. If the cabinet secretary is willing to make a clear commitment to the chamber today with regard to these standards and to producing alongside the bill guidance that follows these fair work practices in care commissioning and delivery, I will be content not to move my amendments. [Interruption.]

I was not sure whether the cabinet secretary was going to come in at that point. If I have her commitment, I will not press—

The Presiding Officer

I suggest that Monica Lennon move amendment 71. If, in her response, the cabinet secretary agrees with the member, she can withdraw her amendment then.

Monica Lennon

I am happy to do so. I move amendment 71.

Alex Cole-Hamilton

Colleagues will remember the case of my constituent George Ballantyne, who spent 150 nights in Liberton hospital after he was declared fit to go home. That was partly due to a deficiency in the availability of social care provision in Edinburgh. There is a crisis in social care in the nation’s capital and I am therefore compelled by Monica Lennon’s arguments. We need to do more to recognise fair work in the social care sector, and we need to make the profession attractive to people right from the early days of primary school so that they can direct their careers that way. Unless we start to make these kinds of changes, we will reap the whirlwind of that crisis in our social care sector.

As I have said, I am happy to support Monica Lennon’s amendments, but if she does not press amendment 71 or move the other amendments in the group, I, too, want the cabinet secretary to make a commitment to addressing this issue in guidance backing the bill.

Jeane Freeman

I welcome the intention behind Monica Lennon’s amendments. As a Government, we have done what we can within the powers that we have to encourage every organisation, regardless of size, sector or location, to ensure that all staff receive a fair level of pay and, where possible, to pay the real living wage. We are committed to fair work. Payment of the real living wage and becoming accredited can make a difference to the lives of people working in Scotland; it benefits the economy and sends a positive signal to the wider community. I completely accept that it is also an important factor in the recruitment and retention of staff in this important sector.


We have condemned and continue to condemn exploitative business practice and, as members are aware, our fair work action plan, which was developed with the Scottish Trades Union Congress, was published in February this year.

However, for as long as employment law remains reserved to the United Kingdom Parliament, the next steps that many of us in the chamber would want to take are restricted. That means that Ms Lennon’s amendments are strictly outwith the competence of this Parliament. Nonetheless, we have demonstrated that, regardless of that barrier, we will push for changes.

I am grateful to Ms Lennon not only for lodging her amendments but for indicating her intention not to press them, provided that the assurance that I can give her is satisfactory. I believe that, if the amendments were passed, it would be inevitable that the entire piece of legislation would be referred to the UK Supreme Court because we would have strayed into reserved areas. I know that no one in the chamber who supports what the bill intends to achieve for our staff in health and social care would wish for that to happen.

I am more than content to offer Ms Lennon the assurance that the fair work principles that are set out in her amendments will be included in the guidance that supports the implementation of the bill. I will return to the Health and Sport Committee with the draft guidance to consult it on this and other matters relating to the guidance. I hope that that assurance is enough for Ms Lennon and I urge her not to press her amendments but to work with me when we are constructing the guidance.

The Presiding Officer

As no other members wish to speak, I ask Monica Lennon to wind up.

Monica Lennon

I thank Alex Cole-Hamilton and the Scottish Liberal Democrats for their support on this matter. Indeed, I think that there has been support across the chamber.

Building on the constructive talks that I have had with the cabinet secretary and the remarks that she has just made, I welcome her strong commitment and strong assurance and I look forward to the guidance coming before the Health and Sport Committee. I am sure that colleagues on the committee will do a good job of ensuring that the guidance fully takes on board the points that were made in the amendments and I appreciate the cabinet secretary’s commitment on that.

Amendment 71, by agreement, withdrawn.

Amendments 72 to 78 not moved.

After section 7

Amendment 39 moved—[Jeane Freeman].

Amendment 39A moved—[Monica Lennon]—and agreed to.

Amendment 39B moved—[Alison Johnstone]—and agreed to.

Amendments 39C and 39D moved—[Monica Lennon]—and agreed to.

Amendment 39, as amended, agreed to.

Section 10—Functions of SCSWIS in relation to staffing methods

The Presiding Officer

Group 13 is on staffing methods for care services. Amendment 79, in the name of David Stewart, is grouped with amendments 80 to 82, 40 and 41.

David Stewart

The amendments all relate to the staffing tools that might be developed for the care sector. Amendments 80 to 82, which Miles Briggs lodged, would ensure that professional and clinical guidance, as well as any accepted care indicators, could be taken into account in the development of such tools. That seems sensible and appropriate.

Amendment 79, which is in my name, would establish parity with health services under part 2. As we have discussed, it is crucial in health services that risks to staffing levels can be identified, appropriately escalated and mitigated. The same point applies to social care services.

I recognise that, unlike the health service, the social care sector is made up of a range of providers whose size and services vary. For that reason, it would be inappropriate to set out in primary legislation precise procedures on staffing risk for all providers to establish and follow, as has been done for the health service in part 2. The different staff and management structures across the care sector make it unlikely that it would be possible to craft even a general process that worked for everyone.

Amendment 79 includes the option to build risk management guidance into staffing tools that are developed for care services. Importantly, the amendment would allow flexibility in how risk management procedures were developed for different care services.

I move amendment 79.

Miles Briggs

Amendment 80 relates to my stage 2 amendment 122, which I did not move. As with staffing methods in health services, it is crucial for the professional voice to be at the core of staffing methods in care services. To recognise the diversity of the staff groups that provide care, amendment 80 sets out that a staffing method that is recommended for use by care service providers may take account of

“recommendations of senior care sector or health care professionals with qualifications and experience that are appropriate to the care services in question”.

As staffing methods are developed, that will ensure that consideration is given to who is best placed—be that a nurse, a care worker or an allied health professional—to provide advice on staffing decisions that are based on the method.

Amendments 81 and 82 relate to my stage 2 amendments 117 and 120. Given that not all care providers provide clinical care, it would not be appropriate to have clinical quality indicators for all care services. It is important to remember that the care setting is often someone’s home. Amendment 81 therefore provides that any staffing method that is developed and recommended for use in care services may take into account

“such indicators or measures relating to the quality of care as”

the Care Inspectorate

“considers appropriate”.

My amendment 70 provided that, in developing new or revised staffing tools for health settings, Healthcare Improvement Scotland must have regard to relevant evidence and professional guidance. Amendment 82 would create a parallel provision on the care side, so that the Care Inspectorate should also consider, when developing new staffing methods for care services in collaboration with stakeholders, whether appropriate evidence and professional guidance should be included in the method.

I ask members to support my amendments.

Jeane Freeman

I thank David Stewart and Miles Briggs for working with me following stage 2 to produce their amendments as alternatives. I am happy to support amendment 79, in Mr Stewart’s name, and amendments 80 to 82, in Miles Briggs’s name.

Amendment 40 was lodged to introduce a regulation-making power to allow ministers to amend the list, in section 82A(5) of the Public Services Reform (Scotland) Act 2010, of what a staffing method for care services may include at the Care Inspectorate’s discretion. Amendment 41 was lodged to make that power subject to the affirmative procedure.

It would be inappropriate to specify absolute requirements for the development of staffing tools and methodologies for the care sector. Such tools and methodologies have not yet been developed, and I have consistently given the care sector the commitment that they will be developed by and for the sector. It should be up to those who are involved in developing methods to determine their content.

Amendment 40 was lodged to ensure that flexibility was maintained. I am pleased that, following our discussions at stage 2, members agree that flexibility is important and have not sought to be overly prescriptive in what must be included in a staffing methodology for the care sector. As I have already let the Delegated Powers and Law Reform Committee know, I therefore intend not to move amendments 40 and 41, as they are no longer required.

Amendment 79 agreed to.

Amendments 80 to 82 moved—[Miles Briggs]—and agreed to.

Amendment 40 not moved.

Section 11—Care services: consequential amendments

Amendment 41 not moved.

The Presiding Officer

That ends consideration of amendments.

As members will be aware, I am required by standing orders to decide at this stage whether in my view any provision of the bill relates to a protected subject matter—that is, whether the bill affects the franchise for Scottish parliamentary elections. It is my view that the bill does not and therefore does not require a supermajority at stage 3. I know that Mr Swinney is fascinated to hear that.

Members will be delighted to hear that we have made very rapid progress through the bill. I will consult business managers and we will almost certainly move to bring forward decision time. We will suspend briefly before we resume for the stage 3 debate.

15:42 Meeting suspended.  





15:52 On resuming—