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Health Service Commissioners Act 1993

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This is the original version (as it was originally enacted).

Matters excluded from investigation

4Availability 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)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 [1977 c. 49.] National Health Service Act 1977 or section 76 of the [1978 c. 29.] National Health Service (Scotland) Act 1978 (general powers to hold inquiries).

(3)A Commissioner shall not conduct an investigation in respect of 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 [1984 c. 36.] Mental Health (Scotland) Act 1984.

5Exercise of clinical judgment

(1)A Commissioner shall not conduct an investigation in respect of action taken in connection with—

(a)the diagnosis of illness, or

(b)the care or treatment of a patient,

which, in the opinion of the Commissioner, was taken solely in consequence of the exercise of clinical judgment, whether formed by the person taking the action or any other person.

(2)In subsection (1), “illness” includes a mental disorder within the meaning of the [1983 c. 20.] Mental Health Act 1983 or the Mental Health (Scotland) Act 1984 and any injury or disability requiring medical or dental treatment or nursing.

6General health services and service committees

(1)A Commissioner shall not conduct an investigation in respect of action taken in connection with any general medical services, general dental services, general ophthalmic services or pharmaceutical services under the National Health Service Act 1977 by a person providing those services.

(2)A Commissioner shall not conduct an investigation in respect of action taken by medical practitioners, dental practitioners, ophthalmic or dispensing opticians or pharmacists in pursuance of their contracts with Health Boards under Part II of the National Health Service (Scotland) Act 1978.

(3)A Commissioner shall not conduct an investigation in respect of action taken by a Family Health Services Authority in the exercise of its functions under the [S.I. 1992/664.] 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 [S.I. 1992/434.] National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992, or any instrument amending or replacing those regulations.

7Personnel, contracts etc

(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 [1977 c. 49.] National Health Service Act 1977 or the [1978 c. 29.] National Health Service (Scotland) Act 1978.

(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 [1990 c. 19.] National Health Service and Community Care Act 1990 and, in relation to Scotland, by section 17A of the National Health Service (Scotland) Act 1978), and

(b)matters arising from arrangements between a health service body and a body which is not a health service body for the provision of services for patients by that body.

(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.

(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.

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