Commentary on Sections
Part 3 – Staffing in Care Services
Section 12 – Functions of SCSWIS in relation to staffing methods
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.
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