(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 M1National Health Service Act 1977 or section 76 of the M2National Health Service (Scotland) Act 1978 (general powers to hold inquiries).
(3)A Commissioner shall not conduct an investigation in respect of action [F1by 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 M3Mental Health (Scotland) Act 1984.
[F2(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 M4Hospital 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
F1Words 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)
F2S. 4(4)-(6) inserted (1.4.1996) by 1996 c. 5, s. 5; S.I. 1996/970, art. 2(1)
Marginal Citations
Textual Amendments
F3S. 5 repealed (1.4.1996 with application as mentioned in art. 2(2) of S.I. 1996/970) by 1996 c. 5, ss. 6(1), 13, Sch. 2; S.I. 1996/970, art. 2(1)
F4(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F4(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)A Commissioner shall not conduct an investigation in respect of action taken by a [F5Health Authority] in the exercise of its functions under the M5National 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 M6National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992, or any instrument amending or replacing those regulations.
[F6(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 M7National Health Service Act 1977 by virtue of section 17 of the M8Health 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 M9National Health Service (Scotland) Act 1978 by virtue of section 17 of the M10Health and Medicines Act 1988.]
Textual Amendments
F4S. 6(1)(2) repealed (1.4.1996) by 1996 c. 5, ss. 7(2), 13, Sch. 2; S.I. 1996/970, art. 2(1)
F5Words 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)
F6S. 6(5)(6) inserted (1.4.1996) by 1996 c. 5, s. 7(3); S.I. 1996/970, art. 2(1)
Marginal Citations
(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 M11National Health Service Act 1977 or the M12National Health Service (Scotland) Act 1978 [F7or the M13National Health Service and Community Care Act 1990].
(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 M14National Health Service and Community Care Act 1990 and, in relation to Scotland, by section 17A of the National Health Service (Scotland) Act 1978), F8. . .
(b)matters arising from arrangements between a health service body and [F9an independent provider for the provision of services by the provider][F10and
(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.
[F11(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.]
[F12(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
F8Word 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)
F9Words 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)
F10S. 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)
F11S. 7(3A) inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 2(5); S.I. 1996/970, art. 2(1)
Marginal Citations
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), 35I (revocation of community care orders) or 50 (orders discharging patients from guardianship) of the M15Mental Health (Scotland) Act 1984.]
Textual Amendments
Marginal Citations