New Clause 17 - Secretary of State’s duty to maintain safe staffing levels

Health and Care Bill – in a Public Bill Committee at 3:45 pm on 27th October 2021.

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“After section 1G of the National Health Service Act 2006 (but before the italic heading after it) insert—

‘1GA Secretary of State’s duty to maintain safe staffing levels

The Secretary of State has a duty to maintain safe staffing levels in the health and care service in England.’”—

Brought up, and read the First time.

Photo of Justin Madders Justin Madders Shadow Minister (Health and Social Care)

I beg to move, That the clause be read a Second time.

This is a probing new clause, and I will not press it to a vote. I am not sure that this is the best legislation for it, but we are trying to make some points about the importance of patient safety. I hope we can all agree that for good care to be central, there need to be enough staff, not just notionally through some measure of the number of posts, but by ensuring that those people are actually in place at the time of giving care. We can have a debate about what level of staffing is enough. For a long time, the issue was left to the good sense of managing clinicians but, of course, that has always been strongly impacted on by the level of budget that could support staff.

Across the world, much attention has been placed on setting out what levels of staff and skill are needed in various settings to achieve the required levels of safety. The debate is not at any fixed point in time, because pathways, models of care, and staffing skills and mixes develop and evolve, but there will always be a correlation between safe staffing and levels of funding. It is a sad fact that our NHS, which should find planning easy as a single national system, has struggled for some time in almost every of aspect of workforce planning. It has shied away from asking questions about safety that come when the available workforce is not matched to the resources. At the end of the day, it is the patients who lose out when we are in that situation.

Much of the discussion on this topic historically has focused on the nursing workforce, which is by far the biggest of the staff groups. The Royal College of Nursing put out guidance pre-covid and during covid and set out where the legal responsibilities lie. It also pointed out recently:

“These are unprecedented times. Nursing staff in almost all settings are facing challenges beyond what were ever expected. Staffing levels are poor in many places, on most shifts and care is being compromised as a result”—

“care is being compromised” can be read to mean unsafe staffing levels.

New clause 17 calls for a duty to be placed on the Secretary of State to ensure that there are in fact safe staffing levels, even if there is not a specific legislative requirement in England. I say in England because in Wales, Labour has led the way with the Nurse Staffing Levels (Wales) Act 2016. In Scotland, the Health and Care (Staffing) (Scotland) Act 2019 became law, although I understand that covid has meant that there has been some delay in its implementation. I also understand that Scotland included social care staff in that remit.

A decade ago, research showed that low levels of nurse staffing are linked to worse patient outcomes and unsafe conditions. Before 2013, decisions to assess and review staffing levels were made locally, with little national guidance. However, the Francis inquiries in 2010 and 2013 identified nurse staffing as a patient safety factor that contributed to the care failings identified at Mid Staffordshire NHS Foundation Trust. They highlighted that decisions about nurse staffing were made without full consideration of the risks to patient safety. Francis said:

“So much of what goes wrong in our hospitals is likely, and indeed it was, in many regards, the case in Stafford, due to there being inadequate numbers of staff, either in terms of numbers or skills”.

In response to that statement and the Francis inquiries, the Department of Health developed four strands of policy that aimed to create safe nurse staffing levels in the NHS. The National Institute for Health and Care Excellence published guidance for safe staffing in all NHS acute hospitals in 2014. It endorsed the safer nursing care tool to help hospitals to plan their staffing. There was a National Quality Board report outlining the principles that NHS trusts were expected to apply in relation to planning staffing, and trusts were required to monitor the differences between planned and achieved nurse staffing levels and to report them through NHS Choices.

A lot of emphasis was placed on the providers of care, and rightly so. They should use their staff effectively and efficiently to keep patients safe. However, there is also a wider responsibility on commissioners—that is where I think we have fallen down—to ensure that providers do what is required, and on system managers and others who allocate the resources, to ensure that they do it in a way that permits safe levels of staffing. Community, maternity and learning disabilities are all nursing specialities where shortages are most acute. Our new clause makes it clear that all settings would have to adhere to the same standards, with no distinctions, because we believe that good and safe care should be for everyone.

In 2013, the National Quality Board set out 10 expectations and a framework within which organisations and staff should make decisions about staffing that put patients first. The document, entitled “Putting people first”, made it clear that safe staffing was both a collective and individual responsibility and central to the delivery of high-quality care that is safe, effective, caring and responsive. In England we have a website full of guidance, and NHS boards are required to take that guidance into account or have regard to it, but there does not appear to be anything similar for social care. Of course, the point I am trying to make, rather unsubtly, is that that is just guidance.

Looking more broadly, the NHS entered its new planning mode from 2015, and we had the emergence of sustainability and transformation partnerships. There was a requirement for them to design local plans to develop, recruit and sustain levels of staff with the right skills, values and behaviour in sufficient numbers, and in the right locations, to ensure the safety of patients. The plans were developed in great haste, but they did not actually go anywhere. Now we are to have more structured ICBs and new plans, but we still do not have a national workforce plan, which means that ICBs cannot plan properly either.

It would be good to know not just the levels of vacancies, but the gap between the staffing needed to maintain safe levels of working and what is actually in place. We touched on this aspect earlier, and we hope the Government respond positively even if they do not accept the new clause. I am sure the Minister will agree that safe staffing levels are better than unsafe levels. We should all agree that it is possible and desirable to enshrine in law guidance from experts on what constitutes safe levels of staffing in various settings and scenarios. We should absolutely be allowed to know when unsafe levels of staffing occur, especially when it becomes an endemic issue due to staff or funding shortages.

As we have mentioned before, we do not want to overburden the Secretary of State, because he already has a number of new powers under the Bill that will keep him busy. We have tried to remove the attempts to give him more work through the power grab, but it would not be for the Secretary of State to do the rotas or phone round for additional staff in the mornings. He just has to ensure that the duty to have staff levels of staffing is fulfilled by those delivering the service. Any wisdom that the Minister can provide on issues around defining, establishing and enforcing safe staffing, and on who carries the systemic responsibilities, will be greatly appreciated.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health and Social Care), Shadow SNP Spokesperson (Europe)

There is no question but that the workforce in both health and social care is one of the biggest challenges across all four nations of the UK. As the shadow Minister highlighted, both Scotland and Wales have passed legislation and aspire to having in law what level should be aimed at, which is quite important. Although covid has impacted in terms of staff leaving the service and the demand on the service, Brexit has also had a huge impact, in that there was an almost 90% drop in European nurses coming to the UK within just months of the referendum. The situation has not recovered, and that impacts right across the system and indeed in social care, where European citizens represented a significant part of the workforce.

When I first came to this place, the former Health Secretary, Jeremy Hunt, talked very much about patient safety but claimed that, in essence, doctors were not really available in the NHS outwith nine to five, and that this was causing what were called “weekend deaths”. Having worked long hours for over three decades, I was a bit afraid that my husband would think I was having serial affairs if I was working only nine to five in the hospital, so I refuted that utterly. However, the evidence available at the time was that the only staff ratio that had any provable impact on patient outcome was that of fully trained, registered nurses—not trainees, not associates and not assistants—to patients. Obviously, that ratio changes, based on the dependency of the ward—whether it is an ordinary ward, a high-dependency ward or an intensive care ward. That is what leads to the basic formula in safe staffing legislation, and England does not have it.

Although covid, Brexit and other things have impacted on the ability of Scotland and Wales to achieve what they aspire to, the guidance has been there for years and it has not been achieved, as the shadow Minister said. Having safe staffing ratios in hospitals is critical, but what action should be taken if that safe level of staffing is not there? What work should not be done so that patients with emergencies can be cared for properly? Otherwise, there is pressure on management to get things done where they want to see throughput. Sometimes, staff simply end up between a rock and a hard place, and that drives staff out of the service. Ultimately, coming home after an exhausting shift feeling that they have delivered poor care because they were covering too many patients is demoralising. It undermines the retention of staff and adds to the problem.

Photo of Edward Argar Edward Argar Minister of State (Department of Health and Social Care) 4:00 pm, 27th October 2021

I am grateful to the shadow Minister, the hon. Member for Ellesmere Port and Neston, for his framing of the new clause in his opening remarks.

The new clause would place the Secretary of State under a statutory duty to maintain safe staffing levels in the health and care service in England. I fear that its effect would be to detract from the responsibility of clinical and other leaders at a local level to ensure safe staffing, supported by guidance—I certainly take on board the point about guidance made by the hon. Member for Central Ayrshire—and regulated by the Care Quality Commission. I am afraid that the Government cannot agree with the new clause as worded for a number of reasons, which I will enunciate for the shadow Minister to illustrate my thinking.

First and foremost, we do not believe that there is a single ratio or formula that could calculate what represents safe staffing. It will differ across and within an organisation and, indeed, across organisations. Reaching the right mix requires the use of evidence-based tools and, crucially, the exercise of professional judgment and expertise and a multi-professional approach.

Consequently, we think that responsibility for staffing levels is best placed with clinical and other leaders at a local level, responding to local needs and supported by guidelines, all overseen and regulated by the CQC. Those guidelines, notwithstanding the challenges posed by the hon. Lady and the shadow Minister, are issued by national and professional bodies such as the National Quality Board and National Institute for Health and Care Excellence. They are based on the best available clinical evidence and are designed to ensure patient safety.

Appropriate staffing levels form a core element of the CQC’s registration regime for health and social care providers. Providers are required by the CQC to provide sufficient numbers of suitably qualified, competent, skilled and experienced staff to meet the care and treatment needs of the people using the service at all times. Staff must also receive the support, training, professional development, supervision and appraisals necessary to carry out their role and responsibilities.

Secondly, the new clause would require the formulation of safe staffing ratios against which performance could be assessed. I fear that that could be a retrograde step and inhibit the development of the skill mixes needed for a more innovative and productive future workforce, which will be crucial to the successful implementation of the new models of integrated care that the Bill is intended to support. Just as there is no one-size-fits-all approach for the new models of care, there will be no identikit approach to the mix of staff needed. The ultimate outcome of good quality care is influenced by a far greater range of issues than how many of each particular staff group are on any particular shift, according to a prescribed ratio. It requires the professional expertise and judgment of those who know the situation best in a given circumstance. The point I seek to make is that, although those numbers are a key part, they are not the only part.

This is, perhaps, more of a technical point than a point of substance, but the specific wording of the new clause is incredibly broad. It would potentially require the Secretary of State to assess safe staffing levels across all healthcare settings across the whole of England for all medical and clinical staff. Such a duty would, I fear, be challenging to implement, notwithstanding the shadow Minister’s assertion that he would not expect the Secretary of State to sit there each morning going through shift rotas and shift patterns himself. It would be challenging for not only the Department but the wider system and, in particular, clinical leaders in individual settings.

For those reasons, while I appreciate the sentiment and the objective sought by the shadow Minister, I do not believe the new clause is the appropriate practical solution.

Photo of Justin Madders Justin Madders Shadow Minister (Health and Social Care)

I am grateful for this Minister’s response. I am not surprised that he is not prepared to the support the new clause. Unfortunately, I think there is a large chasm where responsibility for workforce issues probably lies, and this is an example of that. It was certainly not our intention to expect the Secretary of State to deliver each individual setting, but for someone in the system to have that responsibility of advising the Secretary of State. No doubt we will return to this. We will see the practice in the devolved nations and how that has proved to be a success or otherwise, which may strengthen or weaken the argument. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.