Health Service Commissioners Act 1993

Health Service Commissioners U.K.

1 The Commissioners. E+W+S

(1) For the purpose of conducting investigations in accordance with this Act, there shall continue to be—

(a) a Health Service Commissioner for England,

(b) a Health Service Commissioner for Wales, and

(c) a Health Service Commissioner for Scotland.

(2) References in this Act to a Commissioner (or Health Service Commissioner) are, unless the context otherwise requires, to any of the Commissioners.

(3) Schedule 1 has effect with respect to the appointment and remuneration of [F1 , and other administrative matters relating to, the Health Service Commissioner for England and the Health Service Commissioner for Scotland; and Schedule 1A has effect with respect to the appointment and remuneration of, and other administrative matters relating to, the Health Service Commissioner for Wales].

Textual Amendments

F1 Words in s. 1(3) substituted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 2 (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

Health service bodies subject to investigation E+W+S

2 The bodies subject to investigation. E+W+S

(1) The bodies subject to investigation by the Health Service Commissioner for England are—

[F2 (a) Health Authorities whose areas are in England,]

(c) Special Health Authorities to which this section applies exercising functions only or mainly in England, [F3 and

(ca) the National Assembly for Wales (“the Assembly”).]

(d) National Health Service trusts managing a hospital, or other establishment or facility, in England,

[F4 (da) Primary Care Trusts established for areas in England]

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) the Dental Practice Board, and

(g) the Public Health Laboratory Service Board.

(2) The bodies subject to investigation by the Health Service Commissioner for Wales are—

[F5 (a) Health Authorities whose areas are in Wales,]

(b) Special Health Authorities to which this section applies exercising functions only or mainly in Wales [F6 and],

(c) National Health Service trusts managing a hospital, or other establishment or facility, in Wales, F7 . . .

F8 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The bodies subject to investigation by the Health Service Commissioner for Scotland are—

(a) Health Boards,

(b) National Health Service trusts established under section 12A of the M1 National Health Service (Scotland) Act 1978,

(c) the Common Services Agency for the Scottish Health Service, F9 . . .

(d) the Scottish Dental Practice Board [F10 and

(e) the Mental Welfare Commission for Scotland]

(4) References in this Act to a “health service body” are to any of the bodies mentioned above.

(5) The Special Health Authorities to which this section applies are those—

(a) established on or before 1st April 1974, or

(b) established after that date and designated F11 . . . as ones to which this section applies.

[F12 (6) A designation for the purposes of subsection (5)(b) shall be made—

(a) in the case of a Special Health Authority exercising functions only or mainly in Wales, by order made by the Assembly by statutory instrument, and

(b) in any other case, by Order in Council;

and a statutory instrument containing an Order in Council made by virtue of paragraph (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F2 S. 2(1)(a) substituted for s. 2(1)(a)(b) (28.6.1995 for specified purposes and otherwise 1.4.1996) by 1995 c. 17, ss. 2(1)(3), 8, Sch. 1 Pt. III, para. 126(2)(a) (with Sch. 2 paras. 6, 16)

F3 S. 2(2)(ca) and preceding word “and” inserted (1.4.1999) by 1998 c. 38, s. 112, Sch. 10 para. 3(2) (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

F4 S. 2(1)(da) inserted (E.W.) (4.1.2000) by 1999 c. 8, s. 65, Sch. 4 para. 85(2)(a); S.I. 1999/2342, art. 2(3), Sch.

F5 S. 2(2)(a) substituted (28.6.1995 for specified purposes and otherwise 1.4.1996) by 1995 c. 17, ss. 2(1)(3), 8, Sch. 1 Pt. III para. 126(2)(b) (with Sch. 2 paras. 6, 16)

F6 Word in S. 2(2)(b) repealed (1.4.1999) by 1998 c.38, s. 152, Sch. 18 Pt. I (with ss. 137(1), 139(2), 141(1), 143(2)); S.I. 1999/782, art. 2

F7 Word in S. 2(2)(c) repealed (28.6.1995 for specified purposes and otherwise 1.4.1996) by 1995 c. 17, ss. 2(1)(3), 5, 8, Sch. 1 Pt. III para. 126(2)(b), Sch. 3 (with Sch. 2 paras. 6, 16)

F8 S. 2(2)(d) repealed (28.6.1995 for specified purposes and otherwise 1.4.1996) by 1995 c. 17, ss. 2(1)(3), 5, 8, Sch. 1 Pt. III para. 126(2)(a), Sch. 3 (with Sch. 2 paras. 6, 16)

F9 Word in s. 2(3)(c) repealed (1.4.1996) by 1996 c. 5, ss. 4(1), 13, Sch. 2; S.I. 1996/970, art. 2(1)

F10 S. 2(3)(e) and preceding word “and” inserted (1.4.1996) by 1996 c. 5, s. 4(1); S.I. 1996/970, art. 2(1)

F11 Words in s. 2(5)(b) repealed (1.7.1999) by 1998 c. 38, ss. 112, 152, Sch. 10 para. 3(3), Sch. 18 Pt. I (with ss. 137(1), 139(2), 141(1), 143(2)); S.I. 1999/1290, art. 4

F12 S. 2(6) substituted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 3(4) (with ss. 139(2), 143(2))); S.I. 1999/1290, art. 4

Marginal Citations

M1 1978 c. 29.

[F13 Persons subject to investigation] E+W+S

Textual Amendments

F13 Ss. 2A, 2B and crossheading inserted (1.4.1996) by 1996 c. 5, s. 1; S.I. 1996/970, art. 2(1)

[F14 2A Health service providers subject to investigation. E+W+S

(1) Persons are subject to investigation by the Health Service Commissioner for England [F15 if they are [F16 or were at the time of the action complained of]—

(a) individuals undertaking to provide in England general medical services or general dental services under Part II of the National Health Service Act 1977;

(b) persons (whether individuals or bodies) undertaking to provide in England general ophthalmic services or pharmaceutical services under Part II of that Act; or

(c) individuals performing in England personal medical services or personal dental services in accordance with arrangements made under section 28C of that Act (except as employees of, or otherwise on behalf of, a health service body or an independent provider)]

(2) Persons are subject to investigation by the Health Service Commissioner for Wales [F17 if they are [F18 or were at the time of the action complained of]—

(a) individuals undertaking to provide in Wales general medical services or general dental services under Part II of the National Health Service Act 1977;

(b) persons (whether individuals or bodies) undertaking to provide in Wales general ophthalmic services or pharmaceutical services under Part II of that Act; or

(c) individuals performing in Wales personal medical services or personal dental services in accordance with arrangements made under section 28C of that Act (except as employees of, or otherwise on behalf of, a health service body or an independent provider)]

(3) Persons are subject to investigation by the Health Service Commissioner for Scotland [F19 if they are—

(a) individuals undertaking to provide in Scotland general medical services or general dental services under Part II of the M2 National Health Service (Scotland) Act 1978;

(b) persons (whether individuals or bodies) undertaking to provide in Scotland general ophthalmic services or pharmaceutical services under Part II of that Act; or

(c) individuals performing in Scotland personal medical services or personal dental services in accordance with arrangements made under section 17C of that Act (except as employees of, or otherwise on behalf of, a health service body or an independent provider)]

(4) In this Act—

(a) references to a family health service provider are to any person mentioned in subsection (1), (2) or (3);

(b) references to family health services are to any of the services so mentioned.]

Textual Amendments

F14 S. 2A and sidenote inserted (1.4.1996) by 1996 c. 5, s. 1; S.I. 1996/970, art. 2(1)

F15 S. 2A(1)(a)(b)(c) and words in s. 2A(1) substituted for words in s. 2A(1) (1.4.1998 with effect as mentioned in art. 3(3) of S.I. 1998/631) by 1997 c. 46, s. 41(10), Sch. 2 Pt. I para. 68(2); S.I. 1998/631, art. 2(1)(b), Sch. 2

F16 Words in s. 2A(1) inserted (23.2.2001) by 2000 c. 28, ss. 1(1)(2)(a), 4(2) (with s. 3)

F17 S. 2A(2)(a)(b)(c) and words in s. 2A(2) substituted for words in s. 2A(2) (1.4.1998 with effect as mentioned in art. 3(3) of S.I. 1998/631) by 1997 c. 46, s. 41(10), Sch. 2 Pt. I para. 68(3); S.I. 1998/631, art. 2(1)(b), Sch. 2

F18 Words in s. 2A(2) inserted (23.2.2001) by 2000 c. 28, ss. 1(1)(2)(b), 4(2) (with s. 3)

F19 S. 2A(3)(a)(b)(c) and words in s. 2A(3) substituted for words in s. 2A(3) (1.4.1998 with effect as mentioned in art. 3(3) of S.I. 1998/631) by 1997 c. 46, s. 41(10), Sch. 2 Pt. I para. 68(4); S.I. 1998/631, art. 2(1)(b), Sch. 2

Marginal Citations

M2 1978 c. 29.

[F20 2B Independent providers subject to investigation. E+W+S

(1) Persons are subject to investigation by the Health Service Commissioner for England if—

(a) they are [F21 or were at the time of the action complained of] persons (whether individuals or bodies) providing services in England under arrangements with health service bodies or family health service providers, and

(b) they are not [F22 or were not at the time of the action complained of] themselves health service bodies or family health service providers.

(2) Persons are subject to investigation by the Health Service Commissioner for Wales if—

(a) they are [F23 or were at the time of the action complained of] persons (whether individuals or bodies) providing services in Wales under arrangements with health service bodies or family health service providers, and

(b) they are not [F24 or were not at the time of the action complained of] themselves health service bodies or family health service providers.

[F25 (2A) Arrangements with the Assembly are not arrangements with a health service body for the purposes of this Act unless they are made in the exercise of a function of the Assembly relating to the National Health Service.]

(3) Persons are subject to investigation by the Health Service Commissioner for Scotland if—

(a) they are persons (whether individuals or bodies) providing services in Scotland under arrangements with health service bodies or family health service providers, and

(b) they are not themselves health service bodies or family health service providers.

(4) The services provided under arrangements mentioned in subsection (1)(a), (2)(a) or (3)(a) may be services of any kind.

(5) In this Act references to an independent provider are to any person providing services as mentioned in subsection (1), (2) or (3).]

Textual Amendments

F20 S. 2B and sidenote inserted (1.4.1996) by 1996 c. 5, s. 1; S.I. 1996/970, art. 2(1)

F21 Words in s. 2B(1)(a) inserted (23.2.2001) by 2000 c. 28, ss. 1(1)(3)(a), 4(2) (with s. 3)

F22 Words in s. 2B(1)(b) inserted (23.2.2001) by 2000 c. 28, ss. 1(1)(3)(b), 4(2) (with s. 3)

F23 Words in s. 2B(2)(a) inserted (23.2.2001) by 2000 c. 28, ss. 1(1)(3)(c), 4(2) (with s. 3)

F24 Words in s. 2B(2)(b) inserted (23.2.2001) by 2000 c. 28, ss. 1(1)(3)(d), 4(2) (with s. 3)

F25 S.2B(2A) inserted (1.4.1999) by 1998 c. 38, s. 112, Sch. 10 para. 4 (with ss. 139(2), 143(2)); S.I. 1999/782, art. 2

Matters subject to investigation E+W+S

3 General remit of Commissioners. E+W+S

(1) On a complaint duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of—

(a) a failure in a service provided by a health service body,

(b) a failure of such a body to provide a service which it was a function of the body to provide, or

(c) maladministration connected with any other action taken by or on behalf of such a body,

the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action.

[F26 (1YA) In the case of the Assembly the Health Service Commissioner for Wales may only conduct an investigation in respect of—

(a) a failure in a service provided by the Assembly in the exercise of a function of the Assembly relating to the National Health Service (an “Assembly health service function”),

(b) a failure of the Assembly to provide a service the provision of which is an Assembly health service function, or

(c) maladministration connected with any other action taken by or on behalf of the Assembly in the exercise of an Assembly health service function.]

[F27 (1ZA) Any failure or maladministration mentioned in subsection (1) may arise from action of—

(a) the health service body,

(b) a person employed by that body,

(c) a person acting on behalf of that body, or

(d) a person to whom that body has delegated any functions.]

[F28 (1A) Where a family health service provider has undertaken to provide any family health services and a complaint is duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of—

(a) action taken by the family health service provider in connection with the services,

(b) action taken in connection with the services by a person employed by the family health service provider in respect of the services,

(c) action taken in connection with the services by a person acting on behalf of the family health service provider in respect of the services, or

(d) action taken in connection with the services by a person to whom the family health service provider has delegated any functions in respect of the services,

the Commissioner may, subject to the provisions of this Act, investigate the alleged action.

F29 (1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1C) Where an independent provider has made an arrangement with a health service body or a family health service provider to provide a service (of whatever kind) and a complaint is duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of—

(a) a failure in the service provided by the independent provider,

(b) a failure of the independent provider to provide the service, or

(c) maladministration connected with any other action taken in relation to the service,

the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action.

(1D) Any failure or maladministration mentioned in subsection (1C) may arise from action of—

(a) the independent provider,

(b) a person employed by the provider,

(c) a person acting on behalf of the provider, or

(d) a person to whom the provider has delegated any functions.]

(2) In determining whether to initiate, continue or discontinue an investigation under this Act, a Commissioner shall act in accordance with his own discretion.

(3) Any question whether a complaint is duly made to a Commissioner shall be determined by him.

(4) Nothing in this Act authorises or requires a Commissioner to question the merits of a decision taken without maladministration by a health service body in the exercise of a discretion vested in that body.

[F30 (5) Nothing in this Act authorises or requires a Commissioner to question the merits of a decision taken without maladministration by—

(a) a family health service provider,

(b) a person employed by a family health service provider,

(c) a person acting on behalf of a family health service provider, or

(d) a person to whom a family health service provider has delegated any functions.

(6) Nothing in this Act authorises or requires a Commissioner to question the merits of a decision taken without maladministration by—

(a) an independent provider,

(b) a person employed by an independent provider,

(c) a person acting on behalf of an independent provider, or

(d) a person to whom an independent provider has delegated any functions.]

[F31 (7) Subsections (4) to (6) do not apply to the merits of a decision to the extent that it was taken in consequence of the exercise of clinical judgment.]

Textual Amendments

F26 S. 3(1YA) inserted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 5 (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

F27 S. 3(1ZA) inserted (1.4.1998 with effect as mentioned in art. 3(3) of S.I. 1998/631) by 1997 c. 46, s. 41(10), Sch. 2 Pt. I para. 68(5); S.I. 1998/631, art. 2(1)(b), Sch. 2

F28 S. 3(1A)-(1D) inserted (1.4.1996 with effect as mentioned in art. 2(2) of S.I. 1996/970) by 1996 c. 5, s. 2(2); S.I. 1996/970, art. 2(1)(2)

F29 S. 3(1B) repealed (1.10.1999 for E. and S. and 1.4.2000 for W.) by 1999 c. 8, s. 65, Sch. 4 para. 85(3), Sch. 5; S.I. 1999/2540, art. 2, Sch. 1; S.I. 1999/90, art. 2(b), Sch. 2; S.I. 2000/1041, art. 2(d), Sch.

F30 S. 3(5)(6) inserted (1.4.1996) by 1996 c. 5, s. 2(3); S.I. 1996/970, art. 2(1)

F31 S. 3(7) inserted (1.4.1996) by 1996 c. 5, s. 6(2); S.I. 1996/970, art. 2(1)

Matters excluded from investigation E+W+S

4 Availability of other remedy. E+W+S

(1) A Commissioner shall not conduct an investigation in respect of action in relation to which the person aggrieved has or had—

(a) 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, or

(b) a remedy by way of proceedings in any court of law,

unless the Commissioner is satisfied that in the particular circumstances it is not reasonable to expect that person to resort or have resorted to it.

(2) A Commissioner shall not conduct an investigation in respect of action which has been, or is, the subject of an inquiry under section 84 of the M3 National Health Service Act 1977 or section 76 of the M4 National Health Service (Scotland) Act 1978 (general powers to hold inquiries).

(3) A Commissioner shall not conduct an investigation in respect of action [F32 by a health service body other than the Mental Welfare Commission for Scotland if it is action] in relation to which the protective functions of the Mental Welfare Commission for Scotland have been, are being or may be exercised under the M5 Mental Health (Scotland) Act 1984.

[F33 (4) Subsection (5) applies where—

(a) action by reference to which a complaint is made under section 3(1), (1A) or (1C) is action by reference to which a complaint can be made under a procedure operated by a health service body, a family health service provider or an independent provider, and

(b) subsection (1), (2) or (3) does not apply as regards the action.

(5) In such a case a Commissioner shall not conduct an investigation in respect of the action unless he is satisfied that—

(a) the other procedure has been invoked and exhausted, or

(b) in the particular circumstances it is not reasonable to expect that procedure to be invoked or (as the case may be) exhausted.

(6) Section 1(2) of the M6 Hospital Complaints Procedure Act 1985 (which provides that no right of appeal etc. conferred under section 1 of that Act is to preclude an investigation under this Act) shall have effect subject to subsection (5) above.]

Textual Amendments

F32 Words in S. 4(3) inserted (1.4.1996 with application as mentioned in art. 2(2) of S.I. 1996/970) by 1996 c. 5, s. 4(2); S.I. 1996/970, art. 2(1)

F33 S. 4(4)-(6) inserted (1.4.1996) by 1996 c. 5, s. 5; S.I. 1996/970, art. 2(1)

Marginal Citations

M3 1977 c. 49.

M4 1978 c. 29.

M5 1984 c. 36.

M6 1985 c. 42.

F34 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F34 S. 5 repealed (1.4.1996 with application as mentioned in art. 2(2) of S.I. 1996/970) by 1996 c. 5, ss. 6(1), 13, Sch. 2; S.I. 1996/970, art. 2(1)

6 General health services and service committees. E+W+S

F35 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F35 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) A Commissioner shall not conduct an investigation in respect of action taken by a [F36 Health Authority] in the exercise of its functions under the M7 National Health Service (Service Committees and Tribunal) Regulations 1992, or any instrument amending or replacing those regulations.

(4) A Commissioner shall not conduct an investigation in respect of action taken by a Health Board in the exercise of its functions under the M8 National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992, or any instrument amending or replacing those regulations.

[F37 (5) A Commissioner shall not conduct an investigation in respect of action taken by a Health Authority in the exercise of its functions under regulations made under section 29, 36, 39 or 42 of the M9 National Health Service Act 1977 by virtue of section 17 of the M10 Health and Medicines Act 1988 (investigations of matters relating to services).

(6) A Commissioner shall not conduct an investigation in respect of action taken by a Health Board in the exercise of its functions under regulations made under section 19, 25(2), 26(2) or 27(2) of the M11 National Health Service (Scotland) Act 1978 by virtue of section 17 of the M12 Health and Medicines Act 1988.]

Textual Amendments

F35 S. 6(1)(2) repealed (1.4.1996) by 1996 c. 5, ss. 7(2), 13, Sch. 2; S.I. 1996/970, art. 2(1)

F36 Words in s. 6(3) substituted (28.6.1995 for specified purposes and otherwise 1.4.1996) by 1995 c. 17, ss. 2(1)(3), 8 Sch. 1 Pt. III para. 126(3) (with Sch. 2 paras. 6, 16)

F37 S. 6(5)(6) inserted (1.4.1996) by 1996 c. 5, s. 7(3); S.I. 1996/970, art. 2(1)

Marginal Citations

M7 S.I. 1992/664.

M8 S.I. 1992/434.

M9 1977 c. 49.

M10 1988 c. 49.

M11 1978 c. 29.

M12 1988 c. 49.

7 Personnel, contracts etc. E+W+S

(1) A Commissioner shall not conduct an investigation in respect of action taken in respect of appointments or removals, pay, discipline, superannuation or other personnel matters in relation to service under the M13 National Health Service Act 1977 or the M14 National Health Service (Scotland) Act 1978 [F38 or the M15 National Health Service and Community Care Act 1990][F39 or service as a member of the staff of the Assembly].

(2) A Commissioner shall not conduct an investigation in respect of action taken in matters relating to contractual or other commercial transactions, except for—

(a) matters relating to NHS contracts (as defined by section 4 of the M16 National Health Service and Community Care Act 1990 and, in relation to Scotland, by section 17A of the National Health Service (Scotland) Act 1978), F40 . . .

(b) matters arising from arrangements between a health service body and [F41 an independent provider for the provision of services by the provider][F42 and.

(c) matters arising from arrangements between a family health service provider and an independent provider for the provision of services by the independent provider.]

(3) In determining what matters arise from arrangements mentioned in subsection (2)(b) the Health Service Commissioners for England and for Wales shall disregard any arrangements for the provision of services at an establishment maintained by a Minister of the Crown mainly for patients who are members of the armed forces of the Crown.

[F43 (3A) A Commissioner shall not conduct an investigation in pursuance of a complaint if—

(a) the complaint is in respect of action taken in any matter relating to arrangements made by a health service body and a family health service provider for the provision of family health services,

(b) the action is taken by or on behalf of the body or by the provider, and

(c) the complaint is made by the provider or the body.]

[F44 (3B) Nothing in the preceding provisions of this section prevents a Commissioner conducting an investigation in respect of action taken by a health service body in operating a procedure established to examine complaints.]

(4) Her Majesty may by Order in Council amend this section so as to permit the investigation by a Commissioner of any of the matters mentioned in subsection (1) or (2).

(5) A statutory instrument containing an Order in Council made by virtue of subsection (4) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

F38 Words in s. 7(1) inserted (1.4.1996) by 1996 c. 5, s. 8(2); S.I. 1996/970, art. 2(1)

F39 Words in s. 7(1) inserted (1.4.1999) by 1998 c. 38, s. 112, Sch. 10 para. 6 (with ss. 139(2), 143(2)); S.I. 1999/782, art. 2

F40 Word in s. 7(2)(a) repealed (1.4.1996) by 1996 c. 5, ss. 3, 13, Sch. 1 para. 2(2), Sch. 2; S.I. 1996/970, art. 2(1)

F41 Words in s. 7(2)(b) substituted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 2(3); S.I. 1996/970, art. 2(1)

F42 S. 7(2)(c) and preceding word “and” inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 2(4); S.I. 1996/970, art. 2(1)

F43 S. 7(3A) inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 2(5); S.I. 1996/970, art. 2(1)

F44 S. 7(3B) inserted (1.4.1996) by 1996 c. 5, s. 8(3); S.I. 1996/970, art. 2(1)

Marginal Citations

M13 1977 c. 49.

M14 1978 c. 29.

M15 1990 c. 19.

M16 1990 c. 19.

[F45 7A Certain functions of Mental Welfare Commission for Scotland. E+W+S

A Commissioner shall not conduct an investigation in respect of action taken by the Mental Welfare Commission for Scotland under section 33 (orders for discharge of hospital patients) [F46 or], 35I (revocation of community care orders) [F47 or 50 (orders discharging patients from guardianship)] of the M17 Mental Health (Scotland) Act 1984 [F46 or section 73 of the Adults with Incapacity (Scotland) Act 2000].]

Textual Amendments

F45 S. 7A and sidenote inserted (1.4.1996) by 1996 c. 5, s. 4(3); S.I. 1996/970, art. 2(1)

F46 Words in s. 7A inserted (S.)(1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 24; S.S.I. 2001/81, art. 3, Sch. 2

F47 Words in s. 7A repealed (S.)(1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 24; S.S.I. 2001/81, art. 3 Sch. 2

Marginal Citations

M17 1984 c. 36.

Complaints E+W+S

8 Individuals and bodies entitled to complain. E+W+S

(1) A complaint under this Act may be made by an individual or a body of persons, whether incorporated or not, other than a public authority.

(2) In subsection (1), “public authority” means—

(a) a local authority or other authority or body constituted for the purposes of the public service or of local government [F48 (including the Assembly)],

(b) an authority or body constituted for the purposes of carrying on under national ownership any industry or undertaking or part of an industry or undertaking, and

(c) any other authority or body—

(i) whose members are appointed by Her Majesty or any Minister of the Crown or government department [F49 or by the Assembly], or

(ii) whose revenues consist wholly or mainly of money provided by Parliament [F50 or out of the Scottish Consolidated Fund][F49 or the Assembly].

Textual Amendments

F48 Words in s. 8(2)(a) inserted (1.4.1999) by 1998 c. 38, s. 112, Sch. 10 para. 7(a) (with ss. 139(2), 14314.(2)); S.I. 1999/782, art. 2

F49 Words in s. 8(2)(c)(i)(ii) inserted (1.4.1999) by 1998 c. 38, s. 112, Sch. 10 para. 7(b) (with ss. 139(2), 143(2)); S.I. 1999/782, art. 2

F50 Words in s. 8(2)(c) inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 112(2); S.I. 1998/3178, art. 3

9 Requirements to be complied with. E+W+S

(1) The following requirements apply in relation to a complaint made to a Commissioner.

(2) A complaint must be made in writing.

(3) The complaint shall not be entertained unless it is made—

(a) by the person aggrieved, or

(b) where the person by whom a complaint might have been made has died or is for any reason unable to act for himself, by—

(i) his personal representative,

(ii) a member of his family, or

(iii) some body or individual suitable to represent him.

(4) The Commissioner shall not entertain the complaint if it is made more than a year after the day on which the person aggrieved first had notice of the matters alleged in the complaint, unless he considers it reasonable to do so.

[F51 (4A) In the case of a complaint against a person who is no longer of a description set out in section 2A(1) or (2), but was of such a description at the time of the action complained of, the Commissioner shall not entertain the complaint if it is made more than three years after the last day on which the person was a family health service provider.

(4B) In the case of a complaint against a person falling within section 2B(1) or (2) in relation to whom there are no longer any such arrangements as are mentioned there, the Commissioner shall not entertain the complaint if it is made more than three years after the last day on which the person was an independent provider.]

F52 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F53 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F51 S. 9(4A)(4B) inserted (23.2.2001) by 2000 c. 28, ss. 2, 4(2) (with s. 3)

F52 S. 9(5) repealed (1.4.1996) by 1996 c. 5, ss. 9(a), 13, Sch. 2; S.I. 1996/970, art. 2(1)

F53 S. 9(6) repealed (1.4.1996) by 1996 c. 5, ss. 9(b), 13, Sch. 2; S.I. 1996/970, art. 2(1)

10 Referral of complaint by health service body. E+W+S

(1) A health service body may itself refer to a Commissioner a complaint made to that body that a person has, in consequence of a failure or maladministration for which the body is responsible, sustained such injustice or hardship as is mentioned in section 3(1).

(2) A complaint may not be so referred unless it was made—

(a) in writing,

(b) by the person aggrieved or by a person authorised by section 9(3)(b) to complain to the Commissioner on his behalf, and

(c) not more than a year after the person aggrieved first had notice of the matters alleged in the complaint, or such later date as the Commissioner considers appropriate in any particular case.

[F54 (2A) The Assembly may only refer a complaint under this section if it is in respect of a matter which the Health Service Commissioner for Wales can investigate by virtue of section 3(1YA).]

(3) A health service body may not refer a complaint under this section after the period of one year beginning with the day on which the body received the complaint.

(4) Any question whether a complaint has been duly referred to a Commissioner under this section shall be determined by him.

(5) A complaint referred to a Commissioner under this section shall be deemed to be duly made to him.

Textual Amendments

F54 S. 10(2A) inserted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 8 (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

Investigations U.K.

11 Procedure in respect of investigations. U.K.

(1) Where a Commissioner proposes to conduct an investigation pursuant to a complaint under [F55 section 3(1)], he shall afford—

(a) to the health service body concerned, and

(b) to any other person who is alleged in the complaint to have taken or authorised the action complained of,

an opportunity to comment on any allegations contained in the complaint.

[F56 (1A) Where a Commissioner proposes to conduct an investigation pursuant to a complaint under section 3(1A), he shall afford—

(a) to the family health service provider, and

(b) to any person by reference to whose action the complaint is made (if different from the family health service provider),

an opportunity to comment on any allegations contained in the complaint.

(1B) Where a Commissioner proposes to conduct an investigation pursuant to a complaint under section 3(1C), he shall afford—

(a) to the independent provider concerned, and

(b) to any other person who is alleged in the complaint to have taken or authorised the action complained of,

an opportunity to comment on any allegations contained in the complaint.]

(2) An investigation shall be conducted in private.

(3) In other respects, the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case, and in particular—

(a) he may obtain information from such persons and in such manner, and make such inquiries, as he thinks fit, and

(b) he may determine whether any person may be represented, by counsel or solicitor or otherwise, in the investigation.

(4) A Commissioner may, if he thinks fit, pay to the person by whom the complaint was made and to any other person who attends or supplies information for the purposes of an investigation—

(a) sums in respect of expenses properly incurred by them, and

(b) allowances by way of compensation for the loss of their time.

Payments [F57 made by the Health Service Commissioner for England or the Health Service Commissioner for Scotland] under this subsection shall be in accordance with such scales and subject to such conditions as may be determined by the Treasury [F58 ; and payments made by the Health Service Commissioner for Wales under this subsection shall be in accordance with such scales and subject to such conditions as may be determined by him.]

(5) The conduct of an investigation [F59 pursuant to a complaint under section 3(1)]shall not affect any action taken by the health service body concerned, or any power or duty of that body to take further action with respect to any matters subject to the investigation.

[F60 (5A) The conduct of an investigation pursuant to a complaint under section 3(1A) or (1C) shall not affect any action taken by the family health service provider or independent provider concerned, or any power or duty of that provider to take further action with respect to any matters subject to the investigation.]

(6) Where the person aggrieved has been removed from the United Kingdom under any order in force under the M18 Immigration Act 1971 he shall, if the Commissioner so directs, be permitted to re-enter and remain in the United Kingdom, subject to such conditions as the Secretary of State may direct, for the purposes of the investigation.

Textual Amendments

F55 Words in s. 11(1) substituted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 3(2); S.I. 1996/970, art. 2(1)

F56 S. 11(1A)(1B) inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 3(3); S.I. 1996/970, art. 2(1)

F57 Words in s. 11(4) inserted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 9(a) (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

F58 Words in s. 11(4) inserted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 9(b) (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

F59 Words in s. 11(5) inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 3(4); S.I. 1996/970, art. 2(1)

F60 S. 11(5A) inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 3(5); S.I. 1996/970, art. 2(1)

Modifications etc. (not altering text)

C1 S. 11(1)(a)(5) modified (1.4.1996) by 1996/709, art. 9(3)(a)(i)(ii)

Marginal Citations

M18 1971 c. 77.

12 Evidence. U.K.

(1) For the purposes of an investigation [F61 pursuant to a complaint under section 3(1)]a Commissioner may require any officer or member of the health service body concerned or any other person who in his opinion is able to supply information or produce documents relevant to the investigation to supply any such information or produce any such document.

[F62 (1A) For the purposes of an investigation pursuant to a complaint under section 3(1A) or (1C) a Commissioner may require any person who in his opinion is able to supply information or produce documents relevant to the investigation to supply any such information or produce any such document.]

(2) For the purposes of an investigation a Commissioner shall have the same powers as the Court in respect of—

(a) the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad), and

(b) the production of documents.

(3) No obligation to maintain secrecy or other restriction on the disclosure of information obtained by or supplied to persons in Her Majesty’s service, whether imposed by any enactment or by any rule of law, shall apply to the disclosure of information for the purposes of an investigation.

(4) The Crown shall not be entitled in relation to an investigation to any such privilege in respect of the production of documents or the giving of evidence as is allowed by law in legal proceedings.

(5) No person shall be required or authorised by this Act—

(a) to supply any information or answer any question relating to proceedings of the Cabinet or of any Committee of the Cabinet, or

(b) to produce so much of any document as relates to such proceedings;

and for the purposes of this subsection a certificate issued by the Secretary of the Cabinet with the approval of the Prime Minister and certifying that any information, question, document or part of a document relates to such proceedings shall be conclusive.

(6) Subject to subsections (3) and (4), no person shall be compelled for the purposes of an investigation to give any evidence or produce any document which he could not be compelled to give or produce in civil proceedings before the Court.

Textual Amendments

F61 Words in s. 12(1) inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 4(2); S.I. 1996/970, art. 2(1)

F62 S. 12(1A) inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 4(3); S.I. 1996/970, art. 2(1)

Modifications etc. (not altering text)

C2 S. 12(1) applied with modifications (1.4.1996) by S.I. 1996/709, art. 9(3)(b)

13 Obstruction and contempt. U.K.

(1) A Commissioner may certify an offence to the Court where—

(a) a person without lawful excuse obstructs him or any of his officers in the performance of his functions, or

(b) a person is guilty of any act or omission in relation to an investigation which, if that investigation were a proceeding in the Court, would constitute contempt of court.

(2) Where an offence is so certified the Court may inquire into the matter and after hearing—

(a) any witnesses who may be produced against or on behalf of the person charged with the offence, and

(b) any statement that may be offered in defence,

the Court may deal with the person charged with the offence in any manner in which it could deal with him if he had committed the like offence in relation to the Court.

(3) Nothing in this section shall be construed as applying to the taking of any such action as is mentioned in section 11(5).

Reports U.K.

14 Reports by [F63 English and Scottish] Commissioners. U.K.

(1) [F64 In any case where [F65 the Health Service Commissioner for England or the Health Service Commissioner for Scotland] conducts an investigation pursuant to a complaint under section 3(1) he shall send a report of the results of the investigation]—

(a) to the person who made the complaint,

(b) to any member of the House of Commons [F66 or member of the Scottish Parliament] who to the Commissioner’s knowledge assisted in the making of the complaint (or if he is no longer a member to such other member as the Commissioner thinks appropriate),

[F67 (c) to the health service body who at the time the report is made provides the service, or has the function, in relation to which the complaint was made,]

(d) to any person who is alleged in the complaint to have taken or authorised the action complained of, [F68 and]

[F69 (e) to the Secretary of State.]

(2) In any case where [F65 the Health Service Commissioner for England or the Health Service Commissioner for Scotland] decides not to conduct an investigation [F70 pursuant to a complaint under section 3(1)]he shall send a statement of his reasons—

(a) to the person who made the complaint, [F71 and]

(b) to any such member of the House of Commons [F66 or member of the Scottish Parliament] as is mentioned in subsection (1)(b), F72 . . .

F73 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F74 (2A) In any case where [F65 the Health Service Commissioner for England or the Health Service Commissioner for Scotland] conducts an investigation pursuant to a complaint under section 3(1A) he shall send a report of the results of the investigation—

(a) to the person who made the complaint,

(b) to any member of the House of Commons [F66 or member of the Scottish Parliament] who to the Commissioner’s knowledge assisted in the making of the complaint (or if he is no longer a member to such other member as the Commissioner thinks appropriate),

(c) to any person by reference to whose action the complaint is made,

(d) to the family health service provider (if he does not fall within paragraph (c)),

(e) to any health service body with whom the family health service provider is subject to an undertaking to provide family health services, and

(f) to the Secretary of State.

(2B) In any case where [F65 the Health Service Commissioner for England or the Health Service Commissioner for Scotland] decides not to conduct an investigation pursuant to a complaint under section 3(1A) he shall send a statement of his reasons—

(a) to the person who made the complaint, and

(b) to any such member of the House of Commons [F66 or member of the Scottish Parliament] as is mentioned in subsection (2A)(b).

(2C) In any case where [F65 the Health Service Commissioner for England or the Health Service Commissioner for Scotland] conducts an investigation pursuant to a complaint under section 3(1C) he shall send a report of the results of the investigation—

(a) to the person who made the complaint,

(b) to any member of the House of Commons [F66 or member of the Scottish Parliament] who to the Commissioner’s knowledge assisted in the making of the complaint (or if he is no longer a member to such other member as the Commissioner thinks appropriate),

(c) to any person who is alleged in the complaint to have taken or authorised the action complained of,

(d) to the independent provider,

(e) to the health service body or family health service provider with whom the independent provider made the arrangement to provide the service concerned, and

(f) to the Secretary of State.

(2D) In any case where [F65 the Health Service Commissioner for England or the Health Service Commissioner for Scotland] decides not to conduct an investigation pursuant to a complaint under section 3(1C) he shall send a statement of his reasons—

(a) to the person who made the complaint, and

(b) to any such member of the House of Commons [F66 or member of the Scottish Parliament]as is mentioned in subsection (2C)(b).]

(3) If after conducting an investigation it appears to [F65 the Health Service Commissioner for England or the Health Service Commissioner for Scotland] that—

(a) the person aggrieved has sustained such injustice or hardship as is mentioned in section 3(1) [F75 , (1A) or (1C)], and

(b) the injustice or hardship has not been and will not be remedied,

he may if he thinks fit [F76 lay before each House of Parliament a special report on the case.].

[F77 (4) [F78 The Health Service Commissioner for England and the Health Service Commissioner for Scotland]—

(a) shall [F79 each]annually lay before each House of Parliament a general report on the performance of his functions under this Act, and

(b) may [F79 each] from time to time lay before each House of Parliament such other reports with respect to those functions as he thinks fit.]

(5) For the purposes of the law of defamation, the publication of any matter by [F65 the Health Service Commissioner for England or the Health Service Commissioner for Scotland] in sending or making a report or statement in pursuance of this section shall be absolutely privileged.

Extent Information

E1 S. 14(5) extends to Northern Ireland see s. 22(2)(a).

Textual Amendments

F63 Words in sidenote to s. 14 inserted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 10(4) (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

F64 Words in s. 14(1) substituted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 5(2); S.I. 1996/970, art. 2(1)

F65 Words in s. 14(1)(2)(2A)(2B)(2C)(2D)(3)(5) substituted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 10(2) (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

F66 Words in s. 14(1)(b)(2)(b)(2A)(b)(2B)(b)(2C)(b)(2D)(b) inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 112(3); S.I. 1998/3178, art. 3

F67 S. 14(1)(c) substituted (1.4.1996) by 1996 c. 5, s. 10(2); S.I. 1996/970, art. 2(1)

F68 Word in s. 14(1)(d) inserted (28.6.1995 for specified purposes and otherwise 1.4.1996) by 1995 c. 17, ss. 2(1)(3), 8, Sch. 1 Pt. III para. 126(4)(a) (with Sch. 2 paras. 6, 16)

F69 S. 14(e) substituted for s. 14(e)(f) (28.6.1995 for specified purposes and otherwise 1.4.1996) by 1995 c. 17, ss. 2(1)(3), 8, Sch. 1 Pt. III para. 126(4)(b) (with Sch. 2 paras. 6, 16)

F70 Words in s. 14(2) inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 5(3); S.I. 1996/970, art. 2(1)

F71 Word in s. 14(2)(a) inserted (1.4.1996) by 1996 c. 5, s. 10(3)(a); S.I. 1996/970, art. 2(1)

F72 Word in s. 14(2)(b) repealed (1.4.1996) by 1996 c. 5, ss. 10(3)(b), 13, Sch. 2; S.I. 1996/970, art. 2(1)

F73 S. 14(2)(c) repealed (1.4.1996) by 1996 c. 5, ss. 10(3)(b), 13, Sch. 2; S.I. 1996/970, art. 2(1)

F74 S. 14(2A)-(2D) inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 5(4); S.I. 1996/970, art. 2(1)

F75 Words in s. 14(3)(a) inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 5(5); S.I. 1996/970, art. 2(1)

F76 Words in s. 14(3) substituted (1.4.1996) by 1996 c. 5, s. 10(4); S.I. 1996/970, art. 2(1)

F77 S. 14(4) substituted (1.4.1996) by 1996 c. 5, s. 10(5); S.I. 1996/970, art. 2(1)

F78 Words in s. 14(4) substituted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 10(3)(a) (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

F79 Words in s. 14(4) inserted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 10(3)(b) (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

Modifications etc. (not altering text)

C3 S. 14(1)(c) applied with modifications (1.4.1996) by S.I. 1996/709, art. 9(3)(c)

[F80 14A Reports by Welsh Commissioner. E+W+S

(1) In any case where the Health Service Commissioner for Wales has conducted an investigation pursuant to a complaint under section 3(1), (1A) or (1C) he shall prepare a report of the results of the investigation and send copies of it—

(a) to the person who made the complaint,

(b) to any Assembly member who to the Commissioner’s knowledge assisted in the making of the complaint (or, if he is no longer an Assembly member, to such Assembly member as the Commissioner thinks appropriate), and

(c) to the Assembly First Secretary.

(2) He shall also send a copy of the report—

(a) in the case of a complaint under section 3(1)—

(i) to the health service body who at the time of the report provides the service, or has the function, in relation to which the complaint was made, and

(ii) to any person who is alleged in the complaint to have taken or authorised the action complained of,

(b) in the case of a complaint under section 3(1A)—

(i) to any person by reference to whose action the complaint is made,

(ii) to the family health service provider (if he does not fall within sub-paragraph (i)), and

(iii) to any health service body with whom the family health service provider is subject to an undertaking to provide family health services, and

(c) in the case of a complaint under section 3(1C)—

(i) to any person who is alleged in the complaint to have taken or authorised the action complained of,

(ii) to the independent provider, and

(iii) to the health service body or family health service provider with whom the independent provider made the arrangement to provide the service concerned.

(3) In any case where the Health Service Commissioner for Wales decides not to conduct an investigation pursuant to a complaint under section 3(1), (1A) or (1C) he shall prepare a statement of his reasons for not conducting an investigation and shall send copies of it—

(a) to the person who made the complaint, and

(b) to any Assembly member who to the Commissioner’s knowledge assisted in the making of the complaint (or, if he is no longer an Assembly member, to such Assembly member as the Commissioner thinks appropriate).]

Textual Amendments

F80 S. 14A and sidenote inserted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 11 (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

[F81 14B Action in response to reports by Welsh Commissioner. E+W+S

(1) Where the Assembly First Secretary receives a copy of a report under section 14A(1), he shall send a copy of it to any Assembly Secretary who is accountable to the Assembly (in accordance with section 56 of the Government of Wales Act 1998) for the exercise of any functions of the Assembly relating to the National Health Service.

(2) Where in a report under section 14A(1) the Health Service Commissioner for Wales states that the person aggrieved has sustained such injustice or hardship as is mentioned in section 3(1), (1A) or (1C), any body or provider subject to the investigation shall consider the report and within—

(a) the period of three months beginning with the date on which the body or provider received the report, or

(b) such longer period as the Commissioner may agree in writing,

shall notify the Commissioner of the action taken or proposed to be taken.

(3) The Health Service Commissioner for Wales shall prepare a further report if he—

(a) does not receive the notification required by subsection (2) within the period allowed by or under that subsection,

(b) is not satisfied with the action taken or proposed to be taken, or

(c) does not within the period of three months beginning with the end of the period allowed by or under subsection (2), or such longer period as the Commissioner may agree in writing, receive confirmation from the body or provider that action has been taken, as proposed, to his satisfaction.

(4) The further report shall set out those facts and make such recommendations as the Health Service Commissioner for Wales thinks fit to make with respect to action which, in his opinion, should be taken—

(a) to remedy the injustice or hardship to the person aggrieved, and

(b) to prevent similar injustice or hardship being caused in the future;

and a copy of the further report shall be sent to each of the persons to whom a copy of the report under section 14A(1) was sent.

(5) Where the Assembly First Secretary receives a copy of a further report, he shall send a copy of it to any Assembly Secretary who is accountable to the Assembly (in accordance with section 56 of the Government of Wales Act 1998) for the exercise of any functions of the Assembly relating to the National Health Service.

(6) Where the Assembly First Secretary receives a copy of a further report arising from an investigation relating to the Assembly, he shall also—

(a) lay a copy of it before the Assembly, and

(b) (unless action to the satisfaction of the Health Service Commissioner for Wales has been taken or proposed) give to the Assembly notice of his intention to move that the Assembly resolve to approve the recommendations specified in it.

(7) The standing orders of the Assembly must make provision for any motion of which notice has been given pursuant to subsection (6)(b) to be moved as soon as is reasonably practicable (unless action to the satisfaction of the Health Service Commissioner for Wales has been taken or proposed).]

Textual Amendments

F81 S. 14B and sidenote inserted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 11 (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

[F82 14C Reports: supplementary. E+W+S

(1) Apart from identifying any body or provider investigated, a report under section 14A(1), a further report under section 14B(3) or a report under paragraph 7 of Schedule 1A shall not—

(a) mention the name of any person, or

(b) include any particulars which, in the opinion of the Health Service Commissioner for Wales, are likely to identify any person and can be omitted without impairing the effectiveness of the report or further report,

unless, after taking account of the public interest (as well as the interests of any person who made a complaint and other persons), the Commissioner considers it necessary for the report or further report to mention his name or include such particulars.

(2) For the purposes of the law of defamation, the following are absolutely privileged—

(a) the publication of any matter by the Health Service Commissioner for Wales in a report or statement under section 14A, a further report under section 14B(3) or a report under paragraph 7 of Schedule 1A,

(b) the publication of any matter in communications between—

(i) an Assembly member or a member of the Assembly’s staff or a member or an officer or member of the staff of any other body or provider subject to investigation by the Commissioner, and

(ii) the Commissioner or a member of his staff,

in connection with a complaint to the Commissioner,

(c) the publication of any matter in communications between any person and an Assembly member in connection with a complaint by the person to the Commissioner, and

(d) the publication of any matter in communications between any person and the Commissioner or a member of his staff in connection with a complaint by the person to the Commissioner.]

Textual Amendments

F82 S. 14C and sidenote inserted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 11 (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

Information and consultation U.K.

15 Confidentiality of information. U.K.

(1) Information obtained by a Commissioner or his officers in the course of or for the purposes of an investigation shall not be disclosed except—

(a) for the purposes of the investigation and any report to be made in respect of it,

(b) for the purposes of any proceedings for—

(i) an offence under the Official Secrets Acts 1911 to 1989 alleged to have been committed in respect of information obtained by virtue of this Act by a Commissioner or any of his officers, or

(ii) an offence of perjury alleged to have been committed in the course of the investigation,

(c) for the purposes of an inquiry with a view to the taking of such proceedings as are mentioned in paragraph (b), F83 . . .

(d) for the purposes of any proceedings under section 13 (offences of obstruction and contempt) [F84 or

(e) [F85 where the information is to the effect that any person is likely to constitute a threat to the health or safety of patients]as permitted by subsection (1B).]

[F86 [F87 (1A) Subsection (1B) applies where, in the course of an investigation, a Commissioner or any of his officers obtains information which—

(a) does not fall to be disclosed for the purposes of the investigation or any report to be made in respect of it, and

(b) is to the effect that a person is likely to constitute a threat to the health or safety of patients.]

(1B) In [F88 a case within subsection (1)(e)] the Commissioner may disclose the information to any persons to whom he thinks it should be disclosed in the interests of the health and safety of patients [F89 ; and a person to whom disclosure may be made may, for instance, be a body which regulates the profession to which the person mentioned in subsection (1A)(b) belongs or his employer or any person with whom he has made arrangements to provide services.]

(1C) If a Commissioner discloses information as permitted by subsection (1B) he shall—

[F90 (a) where he knows the identity of the person mentioned in subsection (1)(e), inform that person that he has disclosed the information and of the identity of any person to whom he has disclosed it, and

(b) inform the person from whom the information was obtained that he has disclosed it.]]

(2) Neither a Commissioner nor his officers [F91 nor his advisers] shall be called on to give evidence in any proceedings, other than proceedings mentioned in subsection (1), of matters coming to his or their knowledge in the course of an investigation under this Act.

[F92 (3) The reference in subsection (2) to a Commissioner’s advisers is a reference to persons from whom the Commissioner obtains advice under paragraph 13 of Schedule 1 [F93 or paragraph 6(6) of Schedule 1A].]

[F94 (4) Information obtained from the Information Commissioner by virtue of section 76 of the Freedom of Information Act 2000 shall be treated for the purposes of subsection (1) as obtained for the purposes of an investigation and, in relation to such information, the reference in paragraph (a) of that subsection to the investigation shall have effect as a reference to any investigation.]

Textual Amendments

F83 Word in s. 15(1)(c) repealed (1.4.1996) by 1996 c. 5, ss. 11(2), 13, Sch. 2; S.I. 1996/970, art. 2(1)

F84 S. 15(1)(e) and preceding word “or” inserted (1.4.1996) by 1996 c. 5, s. 11(2); S.I. 1996/970, art. 2(1)

F85 Words in s. 15(1)(e) inserted (1.10.1999 for E.W., 1.3.2000 for S.) by 1999 c. 8, s. 43(2); S.S.I. 2000/38, art. 2

F86 S. 15(1A)-(1C) inserted (1.4.1996) by 1996 c. 5, s. 11(3); S.I. 1996/970, art. 2(1)

F87 S. 15(1A) repealed (1.10.1999 for E.W., 1.3.2000 for S.) by 1999 c. 8, ss. 43(3), 65, Sch. 5; S.I. 1999/2540, art. 2(1)(b); S.S.I. 2000/38, art. 2

F88 Words in s. 15(1B) substituted (1.10.1999 for E.W., 1.3.2000 for S. otherwiseprosp.) by 1999 c. 8, s. 43(4)(a); S.I. 1999/2540, art. 2(1)(b); S.S.I. 2000/38, art. 2

F89 Words in s. 15(1B) repealed (1.10.1999 for E.W., 1.3.2000 for S. otherwiseprosp.) by 1999 c. 8, ss. 43(4)(b), 65, Sch. 5; S.I. 1999/2540, art. 2(1)(b); S.S.I. 2000/38, art. 2

F90 S. 15(1C)(a)(b) substituted (1.10.1999 for E.W., 1.3.2000 for S. otherwiseprosp.) by 1999 c. 8, s. 43(5); S.I. 1999/2540, art. 2(1)(b); S.S.I. 2000/38, art. 2

F91 Words in s. 15(2) inserted (1.4.1996) by 1996 c. 5, s. 11(4); S.I. 1996/970, art. 2(1)

F92 S. 15(3) inserted (1.4.1996) by 1996 c. 5, s. 11(5); S.I. 1996/970, art. 2(1)

F93 Words in s. 15(3) inserted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 12 (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

F94 S. 15(4) inserted (30.1.2001) by 2000 c. 36, ss. 76(2), 87(2)(b), Sch. 7 para. 5 (with ss. 56, 78)

16 Information prejudicial to the safety of the State. U.K.

(1) A Minister of the Crown may give notice in writing to a Commissioner with respect to any document or information specified in the notice that in the Minister’s opinion the disclosure of the document or information would be prejudicial to the safety of the State or otherwise contrary to the public interest.

(2) Where such a notice is given to a Commissioner, nothing in this Act shall be construed as authorising or requiring him or any of his officers to communicate to any person or for any purpose any document or information specified in the notice.

(3) References above to a document or information include references to a class of document or a class of information.

17 Use of information by Commissioner in other capacity. E+W+S

(1) This section applies where a Commissioner also holds either of the other offices of Health Service Commissioner [F95 , the office of Welsh Administration Ombudsman] or the office of Parliamentary Commissioner (an “additional office”).

(2) Where—

(a) a person initiates a complaint to the Commissioner as the holder of the additional office, and

(b) the complaint relates partly to a matter with respect to which that person has previously initiated, or subsequently initiates, a complaint to the Commissioner in his capacity as such,

information obtained by the Commissioner or his officers in the course of or for the purposes of the investigation of that other complaint may be disclosed for the purposes of carrying out his functions in relation to the complaint initiated to him as the holder of the additional office.

Textual Amendments

F95 Words in s. 17(1) inserted (1.4.1999) by 1998 c. 38, s. 112, Sch. 10 para. 13 (with ss. 139(2), 143(2)); S.I. 1999/782, art. 2

Modifications etc. (not altering text)

C4 S. 17 extended (1.7.1999) by S.I. 1999/1351, art. 17(5)(a); S.I. 1998/3178, art. 3

18 Consultation during investigations. E+W+S

(1) Where a Commissioner, at any stage in the course of conducting an investigation, forms the opinion that the complaint relates partly to a matter which could be the subject of an investigation—

(a) by either of the other Health Service Commissioners under this Act,

(b) by the Parliamentary Commissioner under the M19 Parliamentary Commissioner Act 1967,

[F96 (ba) by the Welsh Administration Ombudsman under the Government of Wales Act 1998,]

(c) by a Local Commissioner under Part III of the M20 Local Government Act 1974, or

(d) by the Commissioner for Local Administration in Scotland under Part II of the M21 Local Government (Scotland) Act 1975,

he shall consult about the complaint with the appropriate Commissioner [F97 or the Ombudsman] and, if he considers it necessary, he shall inform the person initiating the complaint of the steps necessary to initiate a complaint to that Commissioner [F97 or the Ombudsman].

(2) Where a Commissioner consults with another Commissioner [F98 or the Welsh Administration Ombudsman] in accordance with this section, the consultations may extend to any matter relating to the complaint, including—

(a) the conduct of any investigation into the complaint, and

(b) the form, content and publication of any report of the results of such an investigation.

(3) Nothing in section 15 (confidentiality of information) applies in relation to the disclosure of information [F99 . . .] in the course of consultations held in accordance with this section.

Textual Amendments

F96 S. 18(1)(ba) inserted (1.4.1999) by 1998 c. 38, s. 112, Sch. 10 para. 14(2) (with ss. 139(2), 143(2)); S.I. 1999/782, art. 2

F97 Words in s. 18(1) inserted (1.4.1999) by 1998 c. 38, s. 112, Sch. 10 para. 14(2) (with ss. 139(2), 143(2)); S.I. 1999/782, art. 2

F98 Words in s. 18(2) inserted (1.4.1999) by 1998 c. 38, s. 112, Sch. 10 para. 14(3) (with ss. 139(2), 143(2)); S.I. 1999/782, art. 2

F99 Words in s. 18(3) repealed (1.4.1999) by 1998 c. 38, ss. 112, 152, Sch. 10 para. 14(4), Sch. 18 Pt. I (with ss. 137(1), 139(2), 141(1), 143(2)); S.I. 1999/782, art. 2

Modifications etc. (not altering text)

C5 S. 18 extended (1.7.1999) by S.I. 1999/1351, art. 17(5)(a); S.I. 1998/3178, art. 3

C6 S. 18(1)(b) extended (1.7.1999) by S.I. 1999/1351, art. 17(5)(b); S.I. 1998/3178, art. 3

Marginal Citations

M19 1967 c. 13.

M20 1974 c. 7.

M21 1975 c. 30.

[F100 18A Disclosure of information to Information Commissioner. E+W+S

(1) The Health Service Commissioner for England or the Health Service Commissioner for Wales may disclose to the Information Commissioner any information obtained by, or furnished to, the Health Service Commissioner under or for the purposes of this Act if the information appears to the Health Service Commissioner to relate to—

(a) a matter in respect of which the Information Commissioner could exercise any power conferred by—

(i) Part V of the Data Protection Act 1998 (enforcement),

(ii) section 48 of the Freedom of Information Act 2000 (practice recommendations), or

(iii) Part IV of that Act (enforcement), or

(b) the commission of an offence under—

(i) any provision of the Data Protection Act 1998 other than paragraph 12 of Schedule 9 (obstruction of execution of warrant), or

(ii) section 77 of the Freedom of Information Act 2000 (offence of altering etc. records with intent to prevent disclosure).

(3) Nothing in section 15 (confidentiality of information) applies in relation to the disclosure of information in accordance with this section.]

Textual Amendments

F100 S. 18A and sidenote inserted (30.1.2001) by 2000 c. 36, ss. 76(2), 87(2)(b), Sch. 7 para. 6 (with ss. 56, 78)

Supplementary U.K.

19 Interpretation. U.K.

In this Act—

• “action” includes failure to act, and related expressions shall be construed accordingly;

• [F101 [F102 “allotted sum” shall be construed in accordance with section 15 of the M22 National Health Service and Community Care Act 1990 or, in Scotland, section 87B of the M23 National Health Service (Scotland) Act 1978;]]

• [F103 “the Assembly” means the National Assembly for Wales;]

• “the Court” means, in relation to England and Wales, the High Court, in relation to Scotland, the Court of Session, and in relation to Northern Ireland, the High Court in Northern Ireland;

• [F104 “family health services” has the meaning given by section 2A;

• “family health service provider” has the meaning given by section 2A;]

• [F105 “financial year” and “first financial year of the Assembly” have the same meanings as in the Government of Wales Act 1998;]

• “functions” includes powers and duties;

• “health service body” has the meaning given by section 2;

• [F106 “independent provider” has the meaning given by section 2B;]

• “local authority” means—

  (a)

  in relation to England F107 . . ., a county, district or London borough council or the Common Council of the City of London,

[F108 (aa) in relation to Wales, a county council or county borough council,]

(b) in relation to Scotland, a regional, district or islands council;

• “officer” includes employee [F109 and, in the case of the Health Service Commissioner for Wales, any member of his staff;]

• “Parliamentary Commissioner” means Parliamentary Commissioner for Administration;

• “patient” includes an expectant or nursing mother and a lying-in woman; F110 . . .

• “person aggrieved” means the person who claims or is alleged to have sustained such injustice or hardship as is mentioned in section 3(1) [F111 , (1A) or (1C)].

• [F112 [F113 “recognised fund-holding practice” shall be construed in accordance with section 14 of the National Health Service and Community Care Act 1990 or, in Scotland, section 87A of the National Health Service (Scotland) Act 1978.]]

Textual Amendments

F101 Words in s. 19 inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 6(2); S.I. 1996/970, art. 2(1)

F102 Words in s. 19 repealed (1.10.1999 for E.S., 1.4.2000 for W.) by 1999 c. 8, s. 65, Sch. 4 para. 85(4), Sch. 5; S.I. 1999/2540, art. 2, Sch. 1; S.I. 1999/90, art. 2, Sch. 2; S.I. 2000/1026, art. 2(1), Sch.

F103 Words in s. 19 inserted (1.4.1999) by 1998 c. 38, s. 112, Sch. 10 para. 15(2) (with ss. 139(2), 143(2)); S.I. 1999/782, art. 2

F104 Words in s. 19 inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 6(3); S.I. 1996/970, art. 2(1)

F105 S. 19: definition of “financial year” inserted (1.7.1999) by 1998 c. 38, s. 112, Sch. 10 para. 15(3) (with ss. 139(2), 143(2)); S.I. 1999/1290, art. 4

F106 Words in s. 19 inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 6(4); S.I. 1996/970, art. 2(1)

F107 Words in s. 19 repealed (1.4.1996) by 1994 c. 19, s. 66(6)(8), Sch. 16 para. 108, Sch. 18 (with ss. 54(5)(7), 55(5), Sch. 17 para. 22(1), 23(2)); S.I. 1996/396, art. 4, Sch. 2

F108 Words in s. 19 inserted (1.4.1996) by 1994 c. 19, s. 66(6), Sch. 16 para. 108 (with ss. 54(5)(7), 55(5), Sch. 17 para. 22(1), 23(2)); S.I. 1996/396, art. 4, Sch. 2

F109 S. 19: words in definition of “officer” inserted (1.4.1999) by 1998 c. 38, s. 112, Sch. 10 para. 15(4) (with ss. 139(2), 143(2)); S.I. 1999/782, art. 2

F110 Word in s. 19 repealed (1.4.1996) by 1996 c. 5, ss. 3, 13, Sch. 1 para. 6(5), Sch. 2; S.I. 1996/970, art. 2(1)

F111 Words in s. 19 inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 6(6); S.I. 1996/970, art. 2(1)

F112 Words in s. 19 inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 6(7); S.I. 1996/970, art. 2(1)

F113 Words in s. 19 repealed (1.10.1999 for E.S., 1.4.2000 for W.) by 1999 c. 8, s. 65, Sch. 4 para. 85(4), Sch. 5; S.I. 1999/2540, art. 2, Sch. 1; S.I. 1999/90, art. 2, Sch. 2; S.I. 2000/1026, art. 2(1), Sch.

Marginal Citations

M22 1990 c. 19.

M23 1978 c. 29.

20 Consequential amendments and repeals. E+W+S

(1) Schedule 2 to this Act (which contains amendments consequential on this Act) has effect.

(2) The enactments set out in Schedule 3 are repealed to the extent specified.

21 Transitional provisions. E+W+S

(1) The repeal and re-enactment of provisions in this Act does not affect the continuity of the law.

(2) Anything done, or having effect as if done, under a provision reproduced in this Act has effect as if done under the corresponding provision of this Act.

(3) Any reference (express or implied) in this Act or any other enactment, or in any instrument or document, to a provision of this Act shall (so far as the context permits) be construed as (according to the context) being or including in relation to times, circumstances or purposes before the commencement of this Act a reference to the corresponding provision repealed in this Act.

(4) Any reference (express or implied) in this Act or any other enactment, or in any instrument or document, to a provision repealed in this Act shall (so far as the context permits) be construed as (according to the context) being or including in relation to times, circumstances or purposes after the commencement of this Act a reference to the corresponding provision of this Act.

(5) Subsection (4) is subject to Schedule 2.

22 Short title, extent and commencement. U.K.

(1) This Act may be cited as the Health Service Commissioners Act 1993.

(2) The following provisions of this Act extend to Northern Ireland—

(a) sections 11, 12, 13, 14(5), 15, 16 and this section;

(b) section 19 so far as it relates to provisions mentioned in this subsection;

(c) Schedule 2 so far as it amends any enactment which extends to Northern Ireland; and

(d) Schedule 3 so far as it repeals any enactment which extends to Northern Ireland.

(3) The Secretary of State may by order provide that this Act shall apply to the Isles of Scilly with such modifications, if any, as are specified in the order.

Any such order shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) This Act shall come into force at the end of the period of three months beginning with the day on which it is passed.