Focus: Divided Britain – Legislation on safe nurse staffing levels

Two the UK’s four countries have now passed laws covering staffing in health settings. In the latest of our series of focus articles, Nursing Times looks at the state of play on nurse staffing legislation.

“These changes will have a positive impact on the culture of our NHS organisations”

Fiona McQueen

Union leaders argue that the impending workforce crisis means legislation to ensure the safety of patients and staff is needed now more than ever.

Their warning comes as they celebrate a major milestone in their long-fought campaign for UK-wide laws to provide stronger protection against dangerous staff shortages.

Last month, Scotland became the second country in the UK to pass a bill around safe staffing, following the lead set by Wales in 2016.

However, the Scottish bill goes a step further because it covers both health and social care services and all clinical staff groups. The Welsh statute only relates to nursing and focuses on the NHS.

The bill passed in Scotland was described by the country’s chief nursing officer, Professor Fiona McQueen, as “world leading” and the culmination of 12 years of work by nurses and midwives.

“Our policy would hold us in a very strong position”

Charlotte McArdle

She added that the legislation ensured that the clinical voice was “heard at every level”, stating: “These changes, I believe, will have a positive impact on the culture of our NHS organisations.”

A significant amount of work is still needed to develop guidance and secondary legislation before the legislation in Scotland can be implemented.

There had also been calls for it to make senior charge nurses non-caseload-holding, to free up their time to lead, but this was not taken forward. But Professor McQueen said she had now commissioned work to review this particular role.

In 2016 Wales became not only the first country in UK to introduce safe staffing law but also in Europe. Under its law, adult acute medical and surgical wards are required to use a particular methodology to calculate their nursing establishment.

Welsh CNO Professor Jean White said, as a result of the legislation, trusts had identified the need to increase their staffing but in some areas were finding it difficult to fill all their vacancies.

“It is empowering frontline staff to have more of a say in what is the right, safe leevel of staffing”

Jean White

But she said there was now a “much clearer understanding” of what trusts should do if they were missing staff, because the legislative framework laid out a “long list” of what to do to mitigate risk.

The act requires trusts to monitor what actions they have taken to comply with the law and Professor White said she was expecting feedback from the first year imminently.

She was now setting her sights on extending the legislation to cover inpatient paediatric before the end of this term of government in 2021, she told Nursing Times.

The act was designed in way that it could continue to be expanded to other areas, but Professor White said it would be down the “political will” by the next government.

While acknowledging that it was “early days”, she said “greater attention” was being paid to the nursing workforce as a result of the legislation, with more nurses working in Wales than ever before.

“It is empowering frontline staff to have more of a say in what is the right, safe level of staffing to care for their patients, and that’s all for the good,” she told Nursing Times.

“We think that legislation is a first step towards creating a culture of transparency”

Sara Gorton

In Northern Ireland, progress has been limited by political instability, with no assembly in place for two-and-a-half years.

Pat Cullen, director of RCN Northern Ireland, said change was desperately needed, because nurses were working in a “very challenging picture”.

The country currently has a 11% nurse vacancy rate, equating to more than 2,100 empty posts, as well as a shortage of around 420 nursing assistants.

“The stories that our nurses are telling us are truly heart-breaking in relation to the conditions and the environments that they are expected to provide safe and effective care in,” Ms Cullen noted.

She said the RCN was seeking legislation to underpin the country’s existing safe staffing framework – called Delivering Care – which was launched in 2014 and sets nurse ratio ranges for different settings.

She said workforce shortages meant these recommended ratios were not being met and without legislation the document would become “another document on the shelf”.

“The experience that we have had in Northern Ireland [is], if there is not legislation that underpins decision making, then it is absolutely and totally ignored.”

“The stories that our nurses are telling us are truly heart-breaking”

Pat Cullen

However, Northern Ireland’s CNO, Professor Charlotte McArdle, said Delivering Care offered a degree of flexibility that a statutory instrument would not, though she recognised nurse shortages were a barrier.

“If we overcome our workforce difficulties, our policy would hold us in very strong position,” she said.

Professor McArdle added, in the absence of a legislator in Northern Ireland, the issue of safe staffing law was “not really a conversation that we can take forward”, but she vowed to keep watch of the evidence that came out of the implementation in Wales and Scotland.

Meanwhile, union chiefs hope the progress made in Wales and Scotland would add pressure on policy-makers in England to follow suit. Unison head of health Sara Gorton said the union had been fighting for legislation for the best part of a decade but the debate had now become “reinvigorated”.

Unison passed a motion at its health conference in April to refresh its campaign. The “stark shortages” that nurses were experiencing in their working environments had “prompted more interest” in legislation, said Ms Gorton.

The key reason Unison wanted legislation was because voluntary and guidance measures were not proving effective, said Ms Gorton.

She pointed to guidelines developed by the National Institute for Health and Care Excellence (NICE) in 2014 in response to the inquiry into failings at Mid Staffordshire hospital, where inadequate staffing levels was found to have led to poor care.

Ms Gorton said NICE’s one-to-eight nurse-to-patient ratio recommendations for adult inpatient wards and red flag warning system were “routinely ignored” and “didn’t really translate into a difference that was felt on the frontline”.

She also noted that NICE’s programme of nurse staffing guidelines for other settings was controversially halted in 2015.

Legislation would help empower nurses to confidently speak out about staffing concerns in their workplace, she said.

“We think that legislation is a first step towards creating a culture of transparency,” she added. However, Ms Gorton said new laws must go “hand in glove” with continuing efforts to increase the number of nurses in training.

The Royal College of Nursing played a big role in securing the legislation in Wales and Scotland and is now also turning to the rest of the UK. It wants each country to have a legal framework in place that covers five principles: accountability, numbers, strategy, plans and education.

sara gorton for index

sara gorton for index

Sara Gorton

During an RCN event last October, English health secretary Matt Hancock promised to “look at” the possibility of legislation after being questioned on the matter by a delegate.

However, a government source told Nursing Times there were “no policy updates” yet to report.

The college’s tactics for England are currently focused on getting clear lines of accountability for nurse staffing written into law, as part of a review of the Health and Social Care Act to support the delivery of the new NHS Long Term Plan.

Professor Anne Marie Rafferty, president of the RCN and a leading workforce researcher herself, noted how changes brought about by the 2012 act made it unclear whose responsibility it was for workforce planning.

The new legislation review was a “good hook” to start the conversation about safe staffing in England, she said, but claimed it was “only the beginning”.

Alongside this, the RCN is embarking on a grassroots initiative to galvanise regional support for changes in legislation. Professor Rafferty said this work was still in its early stages.

Although there was an absence of legislation, the Department of Health and Social Care highlighted to Nursing Times that the system regulator the Care Quality Commission checked providers had appropriate staffing levels, as part of its registration regime in England.

But Alison Leary, professor of healthcare and workforce modelling at London South Bank University, said current measures were not always effective, noting how abuse recently uncovered at learning disabilities hospital Whorlton Hall by the BBC’s Panorama had been missed by the CQC.

“The nursing workforce is seen as an expensive liability and not a safety critical asset”

Alison Leary

While Professor Leary agreed there was a need for new legislation in England, she said pinning it solely on staffing was too narrow and that a wider legislative framework around safety should be introduced for the healthcare system, similar to that in aviation.

She said there were many laws that were already in place around workforce and safety that were not being leveraged and that an overarching framework could bring these together and add extra requirements to fill in any gaps.

A leading researcher in the field, Professor Leary has been highlighting for some time the need for nursing to be viewed as a “safety critical” industry, as to opposed to a service industry, and she believed progress was finally being made.

Alison Leary

Alison Leary

Alison Leary

“The workforce crisis that we have got has made people look perhaps in different directions and think about more contemporary ways of viewing their workforce,” she said.

“One of the biggest issues we face in nursing is the workforce is seen as an expensive liability and not a safety critical asset, and that’s the big difference between healthcare and safety critical industries – they see their workforce as their biggest asset, and they see it as mission critical to success.”

Workforce laws

Safe staffing legislation timeline

Source: Jennifer Van Schoor