Legal Profession and Legal Aid (Scotland) Act 2007

15 Complaint appears during mediation or investigation to fall within different category

(1) Where a relevant professional organisation at any time during any mediation by it, or its investigation, of a conduct complaint remitted to it under section 6(a) considers that it is reasonably likely that the complaint (or any element of it) may instead constitute a services complaint, it must—

(a) suspend the mediation or, as the case may be, the investigation;

(b) consult, co-operate and liaise with the Commission as respects the matter;

(c) send the complaint and any material which relates to it and which is in the organisation’s possession to the Commission;

(d) give notice in writing to the complainer and the practitioner that it so considers and is so doing.

(2) Where the Commission at any time during its mediation by virtue of section 8(5) in relation to, or investigation by virtue of section 9(1) of, a services complaint considers that it is reasonably likely that the complaint (or any element of it) may instead constitute a conduct complaint, it must—

(a) suspend the mediation or investigation;

(b) send a copy of the complaint and any material which relates to it and which is in the Commission’s possession to the relevant professional organisation;

(c) consult, co-operate and liaise with the relevant professional organisation as respects the matter;

(d) give notice in writing to the complainer, the practitioner and the relevant professional organisation that it so considers and is so doing.

(3) Where, in the circumstances referred to in subsection (1) or (2) the Commission, having regard to the views expressed by the relevant professional organisation as respects the matter, considers that—

(a) its determination under section 5(1) as respects the complaint should be confirmed (to any extent), it must so determine; and the determination under this paragraph must specify the extent to which the determination under that section is confirmed;

(b) a complaint (or any element of a complaint) which was determined by it under section 5(1) to constitute—

(i) a conduct complaint constitutes instead a services complaint;

(ii) a services complaint constitutes instead a conduct complaint,

it must determine accordingly.

(4) Where, or to the extent that, the Commission determines under subsection (3)(a) to confirm to any extent its determination under section 5(1)—

(a) it must give notice in writing to the complainer, the practitioner and the relevant professional organisation by sending to each of them a copy of the determination and specifying the reasons for the determination;

(b) any suspension under subsection (1)(a) or (2)(a) ceases.

(5) Where the Commission determines under subsection (3)(b) that a complaint (or any element of a complaint) which was determined by it under section 5(1) to constitute a services complaint constitutes instead a conduct complaint, it must—

(a) remit the conduct complaint to the relevant professional organisation to deal with (and give to the organisation any material referred to in section 6(a));

(b) give notice in writing to the complainer, the practitioner and the relevant professional organisation by sending to each of them a copy of the determination and specifying—

(i) the reasons for the determination;

(ii) that the conduct complaint is being remitted under paragraph (a);

(iii) the relevant professional organisation to which it is being remitted;

(iv) that the relevant professional organisation is under a duty under this Act to deal with the conduct complaint.

(6) Where the Commission determines under subsection (3)(b) that a complaint (or any element of a complaint) which was determined by it under section 5(1) to constitute a conduct complaint constitutes instead a services complaint—

(a) it must give notice in writing to the complainer, the practitioner and the relevant professional organisation by sending to each of them a copy of the determination and specifying the reasons for the determination;

(b) sections 8 to 12 apply to the services complaint as they apply where a determination is made under section 5(1) that a complaint constitutes a services complaint.