Part VI The Health Service Commissioner for Scotland

93Bodies and action subject to investigation.

(1)

In this Part a “body subject to investigation” means any of the following bodies—

(a)

Health Boards;

(b)

the Agency;

F1(bb)

NHS trusts

F2(bb)

the Dental Practice Board;

(c)

F3(2)

Subject to the provisions of this section, the Commissioner may investigate—

(a)

an alleged failure in a service provided by a body subject to investigation, or

(b)

an alleged failure of a body subject to investigation to provide a service which it was the function of the body to provide, or

(c)

any other action taken by or on behalf of a body subject to investigation,

in a case where a complaint is duly made by or on behalf of any person that he has sustained injustice or hardship in consequence of the failure or in consequence of maladministration connected with the other action.

(3)

Except as hereafter provided, the Commissioner shall not conduct an investigation under this Part in respect of any of the following matters—

(a)

any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty’s prerogative;

(b)

any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law;

but the Commissioner may conduct an investigation notwithstanding that the person aggrieved has or had such a right or remedy, if he is satisfied that in the particular circumstances it is not reasonable to expect that person to resort or have resorted to it.

(4)

Without prejudice to subsection (3), the Commissioner shall not conduct an investigation under this Part in respect of any such action as is described in Schedule 14.

(5)

Her Majesty may, by Order in Council, amend the said Schedule 14 so as to exclude from the provisions of that Schedule action described in paragraph 4 or 5 of that Schedule.

(6)

In determining whether to initiate, continue or discontinue an investigation under this Part, the Commissioner shall, subject to the foregoing provisions of this section, act in accordance with his own discretion; and any question whether a complaint is duly made under this Part shall be determined by the Commissioner.