Matters excluded from investigation
4 Availability of other remedy.
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
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.
F24
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.