Health Service Commissioners Act 1993

Matters excluded from investigation E+W+S

4 Availability of other remedy. E+W+S

(1) [F1 The 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) [F1 The 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 M1 National Health Service Act 1977 or section 76 of the M2 National Health Service (Scotland) Act 1978 (general powers to hold inquiries).

(3) A Commissioner shall not conduct an investigation in respect of action [F2 by 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 M3 Mental Health (Scotland) Act 1984.

[F3 (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 [F4 under section 113(1) or (2) of the Health and Social Care (Community Health and Standards) Act 2003 or] 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 [F5 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.

(6) Section 1(2) of the M4 Hospital 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

F1 Words in s. 4(1)(2) substituted (1.4.2006) by Public Services Ombudsman (Wales) Act 2005 (c. 10), s. 40, Sch. 6 para. 36(2) (with s. 38); S.I. 2005/2800, art. 5(1)(3)

F2 Words 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)

F3 S. 4(4)-(6) inserted (1.4.1996) by 1996 c. 5, s. 5; S.I. 1996/970, art. 2(1)

F4 Words in s. 4(4)(a) inserted (1.6.2004) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), s. 199(1)(4), Sch. 9 para. 11(2); S.I. 2004/759, art. 7

F5 Words in s. 4(5) substituted (1.4.2006) by Public Services Ombudsman (Wales) Act 2005 (c. 10), s. 40, Sch. 6 para. 36(3) (with s. 38); S.I. 2005/2800, art. 5(1)(3)

Marginal Citations

M1 1977 c. 49.

M2 1978 c. 29.

M3 1984 c. 36.

M4 1985 c. 42.

F6 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F6 S. 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)

6 General health services and service committees. E+W+S

F7 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) [F8 The Commissioner] shall not conduct an investigation in respect of action taken by a Primary Care Trust F9 ... in the exercise of its functions under the M5 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 M6 National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992, or any instrument amending or replacing those regulations.

[F10 (5) [F8 The Commissioner] shall not conduct an investigation in respect of action taken by a Primary Care Trust F9 ... in the exercise of its functions under regulations made under section F11 ... [F12 126 or 129 of the National Health Service Act 2006] by virtue of section 17 of the M7 Health 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 M8 National Health Service (Scotland) Act 1978 by virtue of section 17 of the M9 Health and Medicines Act 1988.]

Textual Amendments

F7 S. 6(1)(2) repealed (1.4.1996) by 1996 c. 5, ss. 7(2), 13, Sch. 2; S.I. 1996/970, art. 2(1)

F8 Words in s. 6(3)(5) substituted (1.4.2006) by Public Services Ombudsman (Wales) Act 2005 (c. 10), s. 40, Sch. 6 para. 37(a) (with s. 38); S.I. 2005/2800, art. 5(1)(3); S.I. 2005/2800, art. 5(1)(3)

F9 Words in s. 6(3)(5) repealed (1.4.2006) by Public Services Ombudsman (Wales) Act 2005 (c. 10), s. 40, Sch. 6 para. 37(b), Sch. 7 (with s. 38); S.I. 2005/2800, art. 5(1)(3); S.I. 2005/2800, art. 5(1)(3)

F10 S. 6(5)(6) inserted (1.4.1996) by 1996 c. 5, s. 7(3); S.I. 1996/970, art. 2(1)

F11 Words in s. 6(5) repealed (1.4.2004) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), s. 199(1)(4), Sch. 11 para. 63(a), Sch. 14 Pt. 4; S.I. 2004/288, arts. 5(2)(w), 6(2)(l) (with art. 7) (as amended by S.I. 2004/866 and S.I. 2005/2925); S.I. 2004/480, arts. 4(2)(aa), 5(2)(l) (with art. 6) (as amended by S.I. 2004/1019 and S.I. 2006/345); S.I. 2004/288, arts. 5(2)(w), 6(2)(l) (with art. 7) (as amended by S.I. 2004/866 and S.I. 2005/2925); S.I. 2004/480, arts. 4(2)(aa), 5(2)(l) (with art. 6) (as amended by S.I. 2004/1019 and S.I. 2006/345)

F12 Words in s. 6(5) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), s. 8(2), Sch. 1 para. 167 (with Sch. 3 Pt. 1)

Modifications etc. (not altering text)

C1 S. 6(5) savings for effects of 2003 c. 43, Sch. 11 para. 62-68 (E.S.) (1.4.2004) by The General Medical Services and Personal Medical Services Transitional and Consequential Provisions Order 2004 (S.I. 2004/865), arts. 1(1), 113 (with art. 1(3))

Marginal Citations

M5 S.I. 1992/664.

M6 S.I. 1992/434.

M7 1988 c. 49.

M8 1978 c. 29.

M9 1988 c. 49.

7 Personnel, contracts etc. E+W+S

(1) [F13 The 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 [F14 the National Health Service Act 2006 or the National Health Service (Wales) Act 2006] F15 ....

(2) [F16 The 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 [F17 section 9 of the National Health Service Act 2006] F18 ...), F19 ...

[F20 (aa) matters arising from arrangements for the provision of direct payment services,]

(b) matters arising from arrangements between a health service body and [F21 an independent provider for the provision of services by the provider] [F22 and

(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) [F23 the Commissioner] 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.

[F24 (3A) [F25 The 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.]

[F26 (3B) Nothing in the preceding provisions of this section prevents [F27 the 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 [F28 the 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

F13 Words in s. 7(1) substituted (1.4.2006) by Public Services Ombudsman (Wales) Act 2005 (c. 10), s. 40, Sch. 6 para. 38(2)(a) (with s. 38); S.I. 2005/2800, art. 5(1)(3)

F14 Words in s. 7(1) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), s. 8(2), Sch. 1 para. 168(a) (with Sch. 3 Pt. 1)

F15 Words in s. 7(1) repealed (1.4.2006) by Public Services Ombudsman (Wales) Act 2005 (c. 10), s. 40, Sch. 6 para. 38(2)(b), Sch. 7 (with s. 38); S.I. 2005/2800, art. 5(1)(3)

F16 Words in s. 7(2) substituted (1.4.2006) by Public Services Ombudsman (Wales) Act 2005 (c. 10), s. 40, Sch. 6 para. 38(3) (with s. 38); S.I. 2005/2800, art. 5(1)(3)

F17 Words in s. 7(2)(a) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), s. 8(2), Sch. 1 para. 168(b) (with Sch. 3 Pt. 1)

F18 Words in s. 7(2)(a) omitted (14.7.2004) by virtue of The Scottish Public Services Ombudsman Act 2002 (Consequential Provisions and Modifications) Order 2004 (S.I. 2004/1823), arts. 1, 17(6)

F19 Word 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)

F20 S. 7(2)(aa) inserted (19.1.2010) by Health Act 2009 (c. 21), ss. 12(5), 40(1); S.I. 2010/30, art. 2(b)

F21 Words 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)

F22 S. 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)

F23 Words in s. 7(3) substituted (1.4.2006) by Public Services Ombudsman (Wales) Act 2005 (c. 10), s. 40, Sch. 6 para. 38(4) (with s. 38); S.I. 2005/2800, art. 5(1)(3)

F24 S. 7(3A) inserted (1.4.1996) by 1996 c. 5, s. 3, Sch. 1 para. 2(5); S.I. 1996/970, art. 2(1)

F25 Words in s. 7(3A) substituted (1.4.2006) by Public Services Ombudsman (Wales) Act 2005 (c. 10), s. 40, Sch. 6 para. 38(5) (with s. 38); S.I. 2005/2800, art. 5(1)(3)

F26 S. 7(3B) inserted (1.4.1996) by 1996 c. 5, s. 8(3); S.I. 1996/970, art. 2(1)

F27 Words in s. 7(3B) substituted (1.4.2006) by Public Services Ombudsman (Wales) Act 2005 (c. 10), s. 40, Sch. 6 para. 38(6) (with s. 38); S.I. 2005/2800, art. 5(1)(3)

F28 Words in s. 7(4) substituted (1.4.2006) by Public Services Ombudsman (Wales) Act 2005 (c. 10), s. 40, Sch. 6 para. 38(6) (with s. 38); S.I. 2005/2800, art. 5(1)(3)

[F29 7A Certain functions of Mental Welfare Commission for Scotland. E+W+S

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) [F30 or], 35I (revocation of community care orders) [F31 or 50 (orders discharging patients from guardianship)] of the M10 Mental Health (Scotland) Act 1984 [F30 or section 73 of the Adults with Incapacity (Scotland) Act 2000].]

Textual Amendments

F29 S. 7A and sidenote inserted (1.4.1996) by 1996 c. 5, s. 4(3); S.I. 1996/970, art. 2(1)

F30 Words in s. 7A inserted (S.)(1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 24; S.S.I. 2001/81, art. 3, Sch. 2

F31 Words in s. 7A repealed (S.)(1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 24; S.S.I. 2001/81, art. 3 Sch. 2

Marginal Citations

M10 1984 c. 36.