Five years after the legislation was passed in the Scottish Parliament, the Health and Care (Staffing) (Scotland) Act 2019 (HCSSA) has come into effect, imposing a new statutory duty on care service providers to ensure safe and effective staffing levels.

From 1 April 2024, all care services in Scotland that employ staff must comply with staffing levels and other requirements prescribed by the HCSSA. Regulation of staffing levels is new. There is no equivalent elsewhere in the UK. Although staffing was previously within the remit of Care Inspectorate Scotland, the HCSSA provides a framework for regulation with penalties for non-compliance.

Overview

The HCSSA mandates specific staffing ratios and qualifications for care services staff to ensure adequate support and supervision for residents. Under the act, health and care service operators must adhere to minimum staffing requirements, tailored to the individual needs of residents and the level of care provided. Additionally, staff members are required to possess relevant qualifications and undergo continuous professional development to maintain proficiency in their roles.

Staffing ratios and requirements

The HCSSA stipulates precise staffing ratios based on factors such as the number and the needs of residents, as well as the layout and size of the care facility. For instance, a care home catering to residents with complex medical needs may be subject to higher staffing ratios compared to facilities providing primarily social care. These ratios aim to prevent understaffing situations that can compromise resident safety and quality of care.

Qualifications and Training Standards

Care home staff are required to hold specific qualifications relevant to their roles, such as nursing qualifications for registered nurses and appropriate training for care assistants. Ongoing professional development is emphasised to ensure staff remain abreast of best practices and emerging trends in care delivery. The legislation underscores the importance of investing in staff training and development to enhance the overall quality of care provided within care homes.

Monitoring and enforcement mechanisms

The HCSSA provides monitoring and enforcement mechanisms. Statutory guidance was published alongside the HCSSA and Care Inspectorate Scotland has also published guidance to support duty holders in complying with the new requirements. Non-compliance may result in penalties, including fines or the suspension of operating licenses.

Impact of the new regulation

Despite being another layer of regulation, the intent of the legislation has the potential to further improve high - quality care provision in Scotland, increasing resilience in turbulent times and making any compliant care service more attractive to investors.

Comments

Care service providers, more than any other sector, have been dealing with complex and challenging circumstances post pandemic. The aftermath of Covid-19 brought waves of recruitment and staff retention difficulties. While M&A trends in the sector had recovered and returned to pre-Covid levels by the end of 2022, recent times have seen economic pressures affecting investor appetite and transaction activity.

Safe staffing is now a statutory duty in Scotland with penalties for non-compliance. It fits squarely within the “social” pillar of ESG. As a regulatory requirement, safe staffing will be one of many compliance considerations in transaction activity involving care services in Scotland. Non-compliance could adversely affect the risk profile of a service and/or group and therefore attraction of any target. It is prudent for any relevant care service to consider any actions required to ensure compliance and fill any gaps identified, recognising that there are likely to be some in these changing times.

Duty holders should ensure compliance by considering and following relevant and applicable guidance and keeping appropriate records, providing a demonstrable audit trail of compliance which could be shown to Care Inspectorate Scotland during regular inspections, used positively as part of tendering and procurement or disclosed as part of due diligence in any M&A transaction were that ever required.

If you are reviewing your own processes, taking on a new business or an investor in the sector and would like to understand more about the new staffing regulation in Scotland, get in touch with your usual Burness Paull contact or our health, safety and corporate crime team.

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