3. For Articles 7 (bodies subject to investigation), 8 (matters subject to investigation) and 9 (matters not subject to investigation) of the principal Order there shall be substituted—
7.—(1) Subject to the provisions of paragraphs (2) to (4), this Article applies to the bodies listed in Schedule 2.
(2) The Department may by order amend Schedule 2 by the alteration of any entry, the removal or qualification of any entry or the insertion of any additional entry.
(3) Nothing in paragraph (2) authorises the inclusion in Schedule 2 of—
(a)a department; or
(b)a body which does not either—
(i)exercise functions conferred on it by a statutory provision; or
(ii)have its expenses substantially defrayed out of moneys appropriated by Measure.
(4) Any reference in this Order to a body to which this Article applies includes a reference to the members and officers of that body.
(5) Subject to the provisions of this Order, the Commissioner may investigate any action taken—
(a)by or on behalf of a body to which this Article applies; and
(b)in the exercise of administrative functions of that body.
(6) Without prejudice to the generality of paragraph (5)(b), action taken in the exercise of administrative functions of a body includes action taken by or on behalf of that body in relation to any appointment or employment in respect of which power to take action, or to determine or approve action to be taken, is vested in that body.
(7) The Commissioner may investigate any action taken as mentioned in paragraph (5) only if a complaint is made to the Commissioner in accordance with this Order by a person who claims to have sustained injustice in consequence of maladministration in connection with the action so taken with a request to conduct an investigation into it.
(8) Without prejudice to the generality of paragraph (5)(a), any maladministration mentioned in paragraph (7) may, in relation to a health and social services body, arise from action of—
(a)the health and social services 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.
(9) Nothing in this Order authorises or requires the Commissioner to question the merits of a decision taken without maladministration by a body to which this Article applies in the exercise of a discretion vested in that body.
(10) Paragraph (9) does not apply, in the case of a health and social services body, to the merits of a decision to the extent that it was taken in consequence of the exercise of clinical judgment.
8.—(1) This Article applies to persons if they are—
(a)individuals undertaking to provide general medical services or general dental services under Part VI of the [1972 NI 14.] Health and Personal Social Services (Northern Ireland) Order 1972;
(b)persons (whether individuals or bodies) undertaking to provide general ophthalmic services or pharmaceutical services under Part VI of that Order; or
(c)individuals performing personal medical services or personal dental services in accordance with arrangements made under Article 15B of that Order (except as employees of, or otherwise on behalf of, a health and social services body or an independent provider).
(2) In this Order—
(a)references to a general health services provider are to any person to whom this Article applies;
(b)references to general health services are to any of the services mentioned in paragraph (1).
(3) Where a general health services provider has undertaken to provide any general health services, the Commissioner may, subject to the provisions of this Order, investigate—
(a)any action taken by the general health services provider in connection with the services;
(b)any action taken in connection with the services by a person employed by the general health services provider in respect of the services;
(c)any action taken in connection with the services by a person acting on behalf of the general health services provider in respect of the services; or
(d)any action taken in connection with the services by a person to whom the general health services provider has delegated any functions in respect of the services.
(4) Where the general health services provider mentioned in paragraph (3) is a member of a recognised fund-holding practice, references in that paragraph to action taken by any person in connection with general health services include references to action taken by the person concerned in connection with any allotted sum paid to the members of the practice.
(5) The Commissioner may investigate any action taken as mentioned in paragraph (3) only if a complaint is made to the Commissioner in accordance with this Order by a person who claims to have sustained injustice in consequence of the action so taken with a request to conduct an investigation into it.
(6) Nothing in this Order authorises or requires the Commissioner to question the merits of a decision taken without maladministration by—
(a)a general health services provider;
(b)a person employed by a general health services provider;
(c)a person acting on behalf of a general health services provider; or
(d)a person to whom a general health services provider has delegated any functions.
(7) Paragraph (6) does not apply to the merits of a decision to the extent that it was taken in consequence of the exercise of clinical judgment.
(8) In this Article—
“allotted sum” shall be construed in accordance with Article 18 of the [1991 NI 1.] Health and Personal Social Services (Northern Ireland) Order 1991; and
“recognised fund-holding practice” shall be construed in accordance with Article 17 of that Order.
8A.—(1) This Article applies to persons if—
(a)they are persons (whether individuals or bodies) providing services (of any kind) under arrangements with health and social services bodies or general health services providers; and
(b)they are not themselves health and social services bodies or general health services providers.
(2) In this Order references to an independent provider are to any person to whom this Article applies.
(3) Where an independent provider has made an arrangement with a health and social services body or a general health services provider to provide a service, the Commissioner may, subject to the provisions of this Order, investigate any action taken in relation to the service by—
(a)the independent provider;
(b)a person employed by the independent provider;
(c)a person acting on behalf of the independent provider; or
(d)a person to whom the independent provider has delegated any functions.
(4) The Commissioner may investigate any action taken as mentioned in paragraph (3) only if a complaint is made to the Commissioner in accordance with this Order by a person who claims to have sustained injustice in consequence of maladministration in connection with the action so taken with a request to conduct an investigation into it.
(5) Nothing in this Order authorises or requires the Commissioner to question the merits of a decision taken without maladministration by—
(a)an independent provider;
(b)a person employed by an independent provider; -6
(c)a person acting on behalf of an independent provider; or
(d)a person to whom an independent provider has delegated any functions.
(6) Paragraph (5) does not apply to the merits of a decision to the extent that it was taken in consequence of the exercise of clinical judgment.
9.—(1) The Commissioner shall not conduct an investigation under this Order in respect of any such actions or matters as are described in Schedule 3, otherwise than as authorised by the proviso to paragraph 2 of that Schedule.
(2) The Department may by order amend Schedule 3 so as to exclude from the provisions of that Schedule any such action or matter as is described in that order.
(3) Subject to paragraph (4) and to section 22 of the [1973 c. 36.] Northern Ireland Constitution Act 1973, the Commissioner shall not conduct an investigation under this Order in respect of—
(a)any action in respect of which the person aggrieved has or had a right of appeal, complaint, reference or review to or before a tribunal constituted under any statutory provision or otherwise;
(b)any action in respect of which the person aggrieved has or had a remedy by way of proceedings in a court of law.
(4) The Commissioner may conduct an investigation—
(a)notwithstanding that the person aggrieved has or had such a right or remedy as is mentioned in paragraph (3). if the Commissioner is satisfied that in the particular circumstances it is not reasonable to expect him to resort to or have resorted to it; or
(b)notwithstanding that the person aggrieved had exercised such a right as is mentioned in paragraph (3)(a), if he complains that the injustice sustained by him remains unremedied thereby and the Commissioner is satisfied that there are reasonable grounds for that complaint.
(5) The Commissioner shall not conduct an investigation in respect of any action which has been, or is, the subject of an inquiry under Article 54 of the [1972 NI 14.] Health and Personal Social Services (Northern Ireland) Order 1972 (general powers to hold inquiries).
(6) Paragraph (7) applies where—
(a)action by reference to which a complaint is made under Article 7, 8 or 8A is action by reference to which a complaint can be made under a procedure operated by a health and social services body, a general health services provider or an independent provider; and
(b)paragraph (3) or (5) does not apply as regards the action.
(7) In such a case the 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.
(8) The Commissioner shall not conduct an investigation in respect of any action taken by a health and social services board in the exercise of its functions under regulations made under Articles 56, 61, 62 or 63 of the Health and Personal Social Services (Northern Ireland) Order 1972 by virtue of Article 10 of the [1988 NI 24.] Health and Medicines (Northern Ireland) Order 1988 (investigations of matters relating to services).
(9) The Commissioner shall not conduct an investigation in pursuance of a complaint if—
(a)the complaint is in respect of any action taken in any matter relating to arrangements made by a health and social services body and a general health services provider for the provision of general 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.
(10) Nothing in paragraph (9) prevents the Commissioner conducting an investigation in respect of any action taken by a health and social services body in operating a procedure established to examine complaints.”.