55.This section restates in primary legislation the existing duty on care service providers in regulation 15 of the 2011 Regulations, which were made under the power in section 78 of the 2010 Act for the Scottish Ministers to impose appropriate requirements on care services. Section 7(1) places a duty on a person who provides a care service to ensure that an appropriate number of suitably qualified and competent individuals are working in their service at all times for two related purposes: for the health, wellbeing and safety of service users, for the provision of safe and high-quality care (and, in so far as it affects either of these, the wellbeing of staff).
56.Subsection (2) then lists the factors which providers must have regard to in ensuring they have the appropriate number of staff to achieve those aims. These criteria are also relevant for SCSWIS in its enforcement and inspection role under sections 59 to 74 of the 2010 Act, and ultimately for the courts (given the potential for care services to appeal to the sheriff under section 75 of the 2010 Act).
57.Subsection (1) replicates a further aspect of regulation 15 of the 2011 Regulations, setting out that a care service provider must ensure staff have received appropriate training for their role, as well as providing assistance to employees to obtain relevant qualifications. This includes providing time off work.
58.Subsection (2) provides that the training duty in subsection (1) includes the use of any staffing method prescribed by the Scottish Ministers under the new section 82B power inserted into the 2010 Act by section 12 of the Act.
59.Section 9 requires Scottish Ministers must publish and lay before the Scottish Parliament an annual report setting out a summary of how the duties imposed by sections 3,7 and 8 on those who provide, plan and secure services are being discharged; the effect that staffing levels in care services have on the discharge of those duties; the steps taken by Ministers to support staffing levels in care services in order to assist the discharge of those duties; how the matters in subsection (1)(a) to (c) have been taken into account in determining the future supply of registered nurses, medical practitioners and such other care professionals as are considered relevant to the discharge of the duties in sections 3 and 7; and the steps that Ministers have taken to ensure that funding is available to any person who provides a care service in order to assist the discharge of the duties in sections 3, 7 and 8. Subsection (3) sets out the matters which Scottish Ministers must have regard to in preparing the report.
60.This section allows the Scottish Ministers to publish guidance on carrying out the duties introduced by sections 3(1), 7 and 8. Before issuing guidance, the Scottish Ministers must consult the persons mentioned in subsection (2). Care service providers must have regard to any guidance issued when carrying out those duties: in other words they must follow such guidance unless they can show that it is reasonable in all the circumstances not to.
61.This section defines key terms for the purposes of the previous sections. This includes a broad definition of “working in a care service” which includes working paid or unpaid, and working as a volunteer, since volunteers are used widely within the care sector.
62.Section 12 amends the 2010 Act by introducing powers for SCSWIS to develop staffing methods for use by those providing care home services for adults, in the first instance, but with the possibility of extension to other care services through future regulations under inserted section 82A(1)(b). If such methods are developed, SCSWIS may recommend them to the Scottish Ministers, who can, through separate regulations under inserted section 82B(1), mandate their use by care services.
63.New section 82A(1) gives this statutory function to SCSWIS to develop staffing methods. In doing so, it must work together with the persons listed in subsection (2). In turn, in undertaking this collaborative development of staffing methods, subsection (3) provides that SCSWIS and the other persons listed in subsection (2) must have regard to any ministerial guidance on this section, and also have regard to the guiding principles for health and care staffing set out in section 1 of the Act. Subsection (4) requires that any guidance issued under subsection (3) is published.
64.Subsection (5) provides that a staffing method which is developed and recommended to Ministers must include staffing level tools related to workload and professional judgement (see the explanation of the relevant health tools in paragraph 30 above on what is envisaged here). Subsection (6) sets out that a staffing method developed and recommended for use by persons who provide care home services for adults or other prescribed care services may include a requirement for providers to put and keep in place risk management procedures that are appropriate to the care services provided. Subsection (7) then sets out particular examples of what may be taken into account by SCSWIS when developing the staffing method.
65.New section 82B sets out that the Scottish Ministers can require the use of a staffing method developed by SCSWIS by regulations – this can be either as developed and recommended by SCSWIS or with modifications by Ministers as appropriate. These regulations may also specify the types of settings and employees to which the requirement to use a staffing method applies; specify the exact tools that must be used for the purpose of section 82A(5); and the frequency with which such tools are used.
66.New section 82C provides a power for the SCSWIS to review and redevelop any staffing methods prescribed for use under section 82B, and to make recommendations to Scottish Ministers on those staffing methods which need to be replaced or revised. Subsection (3) requires SCSWIS in doing so to collaborate with the list of persons in section 82A(2) and have regard to Ministerial guidance; and applies the same rules on the content of a revised staffing method as apply to the development of a new staffing method. Subsection (4) enables Scottish Ministers to direct SCSWIS to revise a staffing method.
67.New section 82D enables SCSWIS to carry out reviews on the effectiveness of the operation of the general duty to ensure appropriate staffing in section 7 of the Act. Subsection (2) enables SCSWIS to publish a report to Scottish Ministers on that subject.
68.New section 82E requires SCSWIS, when developing a staffing level tool as part of a staffing method under 82A, or a revised staffing methodology under 82C, to consider if the tool or method should be multi-disciplinary i.e. apply to more than one professional discipline. Subsection (2) allows for SCSWIS to recommend to Scottish Ministers that a staffing level tool which has previously been prescribed as part of a staffing method under section 82B should apply to more than one professional discipline.
69.New section 82F provides key definitions for the purposes of these new sections in the 2010 Act. The term “care services” here is restricted to exclude individual providers who do not have any employees: for example a registered child minder, where a single person delivers the service without any additional staff.
70.This section effects amendments to relevant care service legislation which are consequential to the substantive provisions of Part 3 of the Act.
71.Subsection (1)(a) amends section 60(3)(a) of the 2010 Act by inserting reference to the new section 82B power for the Scottish Ministers to require the use of a staffing method. The effect of this, once regulations under section 82B are made, will be to allow the requirement to use a staffing method to be considered by SCSWIS as a condition of registration for an applicant providing care services.
72.Subsection (1)(b) amends section 104(2) of the 2010 Act to provide that regulations made under the new section 82B are subject to the affirmative parliamentary procedure.
73.As a result of the duty being introduced into primary legislation by sections 7 and 8, subsection (2) repeals the similar existing provision set out in secondary legislation, in regulation 15 of the 2011 Regulations.
