Health Service Commissioners Act 1993 in Scotland

For the purpose of conducting investigations in accordance with this Act, there shall continue to be—

References in this Act to F4the Commissioner (or Health Service Commissioner) are, unless the context otherwise requires, to F5the Health Service Commissioner for England.

Schedule 1 has effect with respect to the appointment and remuneration of, and other administrative matters relating to, the Health Service Commissioner F6....

The bodies subject to investigation by F1the Commissioner are—

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References in this Act to a “health service body” are to any of the bodies mentioned above.

The Special Health Authorities to which this section applies are those—

A designation made for the purposes of subsection (5)(b) shall be made by Order in Council; and a statutory instrument containing an Order in Council made by virtue of this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Persons are subject to investigation by F2the Commissioner F3if they are F4or were at the time of the action complained of—

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In this Act—

Persons are subject to investigation by F1the Commissioner if—

Persons are subject to investigation by the Commissioner if—

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The services provided under arrangements mentioned in F7subsection (1)(a) may be services of any kind.

In this Act references to an independent provider are to any person providing services as mentioned in subsection (1) F8or (1A).

On a complaint duly made to F1the Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of—

the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action.

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Any failure or maladministration mentioned in subsection (1) may arise from action of—

Where a family health service provider has undertaken to provide any family health services and a complaint is duly made to F5the Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of—

the Commissioner may, subject to the provisions of this Act, investigate the alleged action.

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Where an independent provider has made an arrangement with a health service body or a family health service provider to provide a service (of whatever kind) F7, or has undertaken to provide direct payment services, and a complaint is duly made to F8the Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of—

the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action.

Any failure or maladministration mentioned in subsection (1C) may arise from action of—

Where a complaint is duly made to F10the Commissioner by or on behalf of a person that the person has sustained injustice or hardship in consequence of maladministration by any person or body in the exercise of any function under section 113 of the Health and Social Care (Community Health and Standards) Act 2003 (complaints about health care), the Commissioner may, subject to the provisions of this Act, investigate the alleged maladministration.

In determining whether to initiate, continue or discontinue an investigation under this Act, F11the Commissioner shall act in accordance with his own discretion.

Any question whether a complaint is duly made to F12the Commissioner shall be determined by him.

Nothing in this Act authorises or requires F13the Commissioner to question the merits of a decision taken without maladministration by a health service body in the exercise of a discretion vested in that body.

Nothing in this Act authorises or requires F15the Commissioner to question the merits of a decision taken without maladministration by—

Nothing in this Act authorises or requires F16the Commissioner to question the merits of a decision taken without maladministration by—

Subsections (4) to (6) do not apply to the merits of a decision to the extent that it was taken in consequence of the exercise of clinical judgment.

F1The Commissioner shall not conduct an investigation in respect of action in relation to which the person aggrieved has or had—

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.

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 M1National Health Service Act 1977 or section 76 of the M2National Health Service (Scotland) Act 1978 (general powers to hold inquiries).

A Commissioner shall not conduct an investigation in respect of action F2by 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.

Subsection (5) applies where—

In such a case F5the Commissioner shall not conduct an investigation in respect of the action unless he is satisfied that—

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.

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F2The Commissioner shall not conduct an investigation in respect of action taken by a Primary Care Trust F3... in the exercise of its functions under the M1National Health Service (Service Committees and Tribunal) Regulations 1992, or any instrument amending or replacing those regulations.

A Commissioner shall not conduct an investigation in respect of action taken by a Health Board in the exercise of its functions under the M2National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1992, or any instrument amending or replacing those regulations.

The Commissioner shall not conduct an investigation in respect of action taken by a Primary Care Trust ... in the exercise of its functions under regulations made under section F5... F6126 or 129 of the National Health Service Act 2006 by virtue of section 17 of the M3Health and Medicines Act 1988 (investigations of matters relating to services).

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 M4National Health Service (Scotland) Act 1978 by virtue of section 17 of the M5Health and Medicines Act 1988.

F1The 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 F2the National Health Service Act 2006 or the National Health Service (Wales) Act 2006 F3....

F4The Commissioner shall not conduct an investigation in respect of action taken in matters relating to contractual or other commercial transactions, except for—

In determining what matters arise from arrangements mentioned in subsection (2)(b) F11the 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.

F13The Commissioner shall not conduct an investigation in pursuance of a complaint if—

Nothing in the preceding provisions of this section prevents F15the Commissioner conducting an investigation in respect of action taken by a health service body in operating a procedure established to examine complaints.

Her Majesty may by Order in Council amend this section so as to permit the investigation by F16the Commissioner of any of the matters mentioned in subsection (1) or (2).

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.

A complaint under this Act may be made by an individual or a body of persons, whether incorporated or not, other than a public authority.

In subsection (1), “public authority” means—

The following requirements apply in relation to a complaint made to F1the Commissioner.

A complaint must be made in writing.

The complaint shall not be entertained unless it is made—

The Commissioner shall not entertain the complaint if it is made more than a year after the day on which the person aggrieved first had notice of the matters alleged in the complaint, unless he considers it reasonable to do so.

In the case of a complaint against a person who is no longer of a description set out in F3section 2A(1), but was of such a description at the time of the action complained of, the Commissioner shall not entertain the complaint if it is made more than three years after the last day on which the person was a family health service provider.

In the case of a complaint against a person falling within F4section 2B(1) in relation to whom there are no longer any such arrangements as are mentioned there, the Commissioner shall not entertain the complaint if it is made more than three years after the last day on which the person was an independent provider.

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A health service body may itself refer to F1the Commissioner a complaint made to that body that a person has, in consequence of a failure or maladministration for which the body is responsible, sustained such injustice or hardship as is mentioned in section 3(1).

A complaint may not be so referred unless it was made—

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A health service body may not refer a complaint under this section after the period of one year beginning with the day on which the body received the complaint.

Any question whether a complaint has been duly referred to the Commissioner under this section shall be determined by him.

A complaint referred to the Commissioner under this section shall be deemed to be duly made to him.

Where F1the Commissioner proposes to conduct an investigation pursuant to a complaint under F2section 3(1), he shall afford—

an opportunity to comment on any allegations contained in the complaint.

Where F4the Commissioner proposes to conduct an investigation pursuant to a complaint under section 3(1A), he shall afford—

an opportunity to comment on any allegations contained in the complaint.

Where F5the Commissioner proposes to conduct an investigation pursuant to a complaint under section 3(1C), he shall afford—

an opportunity to comment on any allegations contained in the complaint.

Where F7the Commissioner proposes to conduct an investigation pursuant to a complaint under section 3(1E), he shall afford to the person or body whose maladministration is complained of an opportunity to comment on any allegations contained in the complaint.

An investigation shall be conducted in private.

In other respects, the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case, and in particular—

F8The Commissioner may, if he thinks fit, pay to the person by whom the complaint was made and to any other person who attends or supplies information for the purposes of an investigation—

The conduct of an investigation F13pursuant to a complaint under section 3(1) shall not affect any action taken by the health service body concerned, or any power or duty of that body to take further action with respect to any matters subject to the investigation.

The conduct of an investigation pursuant to a complaint under section 3(1A) or (1C) shall not affect any action taken by the family health service provider or independent provider concerned, or any power or duty of that provider to take further action with respect to any matters subject to the investigation.

Where the person aggrieved has been removed from the United Kingdom under any order in force under the M1Immigration Act 1971 he shall, if the Commissioner so directs, be permitted to re-enter and remain in the United Kingdom, subject to such conditions as the Secretary of State may direct, for the purposes of the investigation.

For the purposes of an investigation pursuant to a complaint under section 3(1) F1the Commissioner may require any officer or member of the health service body concerned or any other person who in his opinion is able to supply information or produce documents relevant to the investigation to supply any such information or produce any such document.

For the purposes of an investigation pursuant to a complaint under section 3(1A) (1C) or (1E) F3the Commissioner may require any person who in his opinion is able to supply information or produce documents relevant to the investigation to supply any such information or produce any such document.

For the purposes of an investigation F4the Commissioner shall have the same powers as the Court in respect of—

No obligation to maintain secrecy or other restriction on the disclosure of information obtained by or supplied to persons in Her Majesty’s service, whether imposed by any enactment or by any rule of law, shall apply to the disclosure of information for the purposes of an investigation.

The Crown shall not be entitled in relation to an investigation to any such privilege in respect of the production of documents or the giving of evidence as is allowed by law in legal proceedings.

No person shall be required or authorised by this Act—

and for the purposes of this subsection a certificate issued by the Secretary of the Cabinet with the approval of the Prime Minister and certifying that any information, question, document or part of a document relates to such proceedings shall be conclusive.

Subject to subsections (3) and (4), no person shall be compelled for the purposes of an investigation to give any evidence or produce any document which he could not be compelled to give or produce in civil proceedings before the Court.

F1The Commissioner may certify an offence to the Court where—

Where an offence is so certified the Court may inquire into the matter and after hearing—

the Court may deal with the person charged with the offence in any manner in which it could deal with him if he had committed the like offence in relation to the Court.

Nothing in this section shall be construed as applying to the taking of any such action as is mentioned in section 11(5).

F1In any case where F2the Commissioner F3... conducts an investigation pursuant to a complaint under section 3(1) he shall send a report of the results of the investigation—

In any case where F7the Commissioner F8... decides not to conduct an investigation F9pursuant to a complaint under section 3(1) he shall send a statement of his reasons—

In any case where F15the Commissioner F16... conducts an investigation pursuant to a complaint under section 3(1A) he shall send a report of the results of the investigation—

In any case where F20the Commissioner F21... decides not to conduct an investigation pursuant to a complaint under section 3(1A) he shall send a statement of his reasons—

In any case where F23the Commissioner F24... conducts an investigation pursuant to a complaint under section 3(1C) he shall send a report of the results of the investigation—

In any case where F29the Commissioner F30... decides not to conduct an investigation pursuant to a complaint under section 3(1C) he shall send a statement of his reasons—

In any case where F33the Commissioner conducts an investigation pursuant to a complaint under section 3(1E) he shall send a report of the results of the investigation—

In any case where F35the Commissioner decides not to conduct an investigation pursuant to a complaint under section 3(1E) he shall send a statement of his reasons—

Where the Commissioner has not concluded an investigation before the end of the 12 month period beginning with the date the complaint was received, the Commissioner must send a statement explaining the reason for the delay to the person who made the complaint.

Where the Commissioner is required by this section to send a report or statement of reasons to certain persons, the Commissioner may send the report or statement to such other persons as the Commissioner thinks appropriate.

If after conducting an investigation it appears to F38the Commissioner F39... that—

he may if he thinks fit F41lay before each House of Parliament a special report on the case.

F43The Commissioner F44...—

The general report laid under subsection (4)(a) must include information about—

For the purposes of the law of defamation, the publication of any matter by F48the Commissioner F49... in sending or making a report or statement in pursuance of this section shall be absolutely privileged.

Information obtained by F1the Commissioner or his officers in the course of or for the purposes of an investigation shall not be disclosed except—

Subsection (1B) applies where, in the course of an investigation, F10the Commissioner or any of his officers obtains information which—

In F11a case within subsection (1)(e) the Commissioner may disclose the information to any persons to whom he thinks it should be disclosed in the interests of the health and safety of patients F12; and a person to whom disclosure may be made may, for instance, be a body which regulates the profession to which the person mentioned in subsection (1A)(b) belongs or his employer or any person with whom he has made arrangements to provide services.

If F13the Commissioner discloses information as permitted by subsection (1B) he shall—

Neither F15the Commissioner nor his officers F16nor his advisers shall be called on to give evidence in any proceedings, other than proceedings mentioned in subsection (1), of matters coming to his or their knowledge in the course of an investigation under this Act.

The reference in subsection (2) to F18the Commissioner's advisers is a reference to persons from whom the Commissioner obtains advice under paragraph 13 of Schedule 1 F19....

Information obtained from the F21Information Commission by virtue of section 76 of the Freedom of Information Act 2000 shall be treated for the purposes of subsection (1) as obtained for the purposes of an investigation and, in relation to such information, the reference in paragraph (a) of that subsection to the investigation shall have effect as a reference to any investigation.

A Minister of the Crown may give notice in writing to F1the Commissioner with respect to any document or information specified in the notice that in the Minister’s opinion the disclosure of the document or information would be prejudicial to the safety of the State or otherwise contrary to the public interest.

Where such a notice is given to the Commissioner, nothing in this Act shall be construed as authorising or requiring him or any of his officers to communicate to any person or for any purpose any document or information specified in the notice.

References above to a document or information include references to a class of document or a class of information.

This section applies where F1the Commissioner also holds F2... the office of Parliamentary Commissioner (an “additional office”).

Where—

information obtained by the Commissioner or his officers in the course of or for the purposes of the investigation of that other complaint may be disclosed for the purposes of carrying out his functions in relation to the complaint initiated to him as the holder of the additional office.

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Where F1the Commissioner, at any stage in the course of conducting an investigation, forms the opinion that the complaint relates partly F2or wholly to a matter which could be the subject of an investigation—

he shall consult about the complaint with the appropriate Commissioner F10or F11... Ombudsman and, if he considers it necessary, he shall inform the person initiating the complaint of the steps necessary to initiate a complaint to that Commissioner or ... Ombudsman.

Where F12the Commissioner consults with another Commissioner F13, the Scottish Public Services Ombudsman or F14... F15the Public Services Ombudsman for Wales in accordance with this section, the consultations may extend to any matter relating to the complaint, including—

Nothing in section 15 (confidentiality of information) applies in relation to the disclosure of information F16... in the course of consultations held in accordance with this section.

If at any stage in the course of conducting an investigation under this Act the Commissioner forms the opinion that the complaint relates partly to a matter within the jurisdiction of—

he may, subject to subsection (2), conduct an investigation under this Act jointly with that Commissioner or those Commissioners.

The Commissioner must obtain the consent of the person aggrieved or any person acting on his behalf in accordance with section 9(3) before agreeing to a joint investigation referred to in subsection (1).

If the Commissioner forms the opinion that F2matters which are the subject of an investigation by—

F3include a matter within his jurisdiction, he may conduct an investigation F4of that matter under this Act jointly with that Commissioner or those Commissioners.

If the Commissioner conducts an investigation F5... jointly with another person, the requirements of section 14 (reports) (so far as relating to a case where the Commissioner conducts an investigation under this Act) may be satisfied by a report made jointly with that person.

Apart from identifying any body or provider investigated, a report prepared by virtue of subsection (4) by the Commissioner and a Local Commissioner shall not—

unless, after taking into account the public interest as well as F6the interests of the complainant (if any) and of other persons, the Commissioner and the Local Commissioner consider it necessary to mention the name of that person or to include in the report any such particulars.

Nothing in subsection (5) of this section prevents a report—

the Mayor of London or any member of the London Assembly.

F2The Health Service Commissioner may disclose to the F3Information Commission any information obtained by, or furnished to, the Health Service Commissioner under or for the purposes of this Act if the information appears to the Health Service Commissioner to relate to—

Nothing in section 15 (confidentiality of information) applies in relation to the disclosure of information in accordance with this section.

Schedule 2 to this Act (which contains amendments consequential on this Act) has effect.

The enactments set out in Schedule 3 are repealed to the extent specified.

The repeal and re-enactment of provisions in this Act does not affect the continuity of the law.

Anything done, or having effect as if done, under a provision reproduced in this Act has effect as if done under the corresponding provision of this Act.

Any reference (express or implied) in this Act or any other enactment, or in any instrument or document, to a provision of this Act shall (so far as the context permits) be construed as (according to the context) being or including in relation to times, circumstances or purposes before the commencement of this Act a reference to the corresponding provision repealed in this Act.

Any reference (express or implied) in this Act or any other enactment, or in any instrument or document, to a provision repealed in this Act shall (so far as the context permits) be construed as (according to the context) being or including in relation to times, circumstances or purposes after the commencement of this Act a reference to the corresponding provision of this Act.

Subsection (4) is subject to Schedule 2.

This Act may be cited as the Health Service Commissioners Act 1993.

The following provisions of this Act extend to Northern Ireland—

The Secretary of State may by order provide that this Act shall apply to the Isles of Scilly with such modifications, if any, as are specified in the order.

Any such order shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

This Act shall come into force at the end of the period of three months beginning with the day on which it is passed.

F1Where F2the office of Commissioner becomes vacant, Her Majesty may, pending the appointment of the new Commissioner, appoint a person under this paragraph to act as F3the Commissioner at any time during the period of twelve months beginning with the date on which the vacancy arose.

A person appointed to act as the Commissioner (“an acting Commissioner”) may have held office as the Commissioner.

A person appointed as an acting Commissioner is eligible for appointment as the Commissioner unless he has already held office as the Commissioner.

A person appointed F5as acting Commissioner, shall hold office during Her Majesty’s pleasure and, subject to that, shall hold office—

A person appointed as an acting Commissioner shall, while he holds office, be treated for all purposes, except for the purposes of paragraphs 1, 4 to 10 and this paragraph, as the Commissioner.

A person who is a member of a relevant health service body shall not be appointed F1the Commissioner or acting Commissioner; and a person so appointed shall not, during his appointment, become a member of such a body.

For this purpose a “relevant health service body” means—

A person who is a relevant family health service provider shall not be appointed F2the Commissioner or acting Commissioner; and a person so appointed shall not, during his appointment, become a relevant family health service provider.

For this purpose a “relevant family health service provider” means—

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Where a person holds—

he shall, so long as he does so, be entitled only to the salary pertaining to the office of Parliamentary Commissioner.

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any abatement of that salary under paragraph 5,

any temporary abatement of that salary in the national interest, and

any voluntary surrender of that salary in whole or in part.

In this paragraph, “relevant office” means the office of Parliamentary Commissioner or F1the office of Health Service Commissioner.

The Treasury may by regulations provide that Schedule 1 to the Parliamentary Commissioner Act 1967 shall have effect, in relation to persons who have held more than one relevant office, with such modifications as it considers necessary in consequence of those persons having held more than one such office; and different regulations may be made in pursuance of paragraph 4 of Schedule 1 to the 1967 Act in relation to different relevant offices.

A person shall not be entitled to make simultaneously different elections in pursuance of paragraph 1 or 2 of Schedule 1 to the 1967 Act in respect of different relevant offices.

Where a person has made or is treated as having made an election in pursuance of paragraph 1 or 2 of Schedule 1 to the 1967 Act in respect of any relevant office, he shall be deemed to have made the same election in respect of all such other offices to which he is, or is subsequently, appointed.

No account shall be taken for the purposes of Schedule 1 to the 1967 Act of a period of service in a relevant office if salary in respect of the office was not paid for that period.

Regulations under this paragraph may make such incidental or supplementary provision as the Treasury considers necessary.

Regulations under this paragraph shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

as if in paragraph 7 the words “hold or” (in both places) and in paragraph 9(3) and (4) the words “or 2” (in both places) were omitted, and

as if for the reference in paragraph 9(2) to paragraph 4 of Schedule 1 to the 1967 Act there were substituted a reference to paragraph 8 of that Schedule.

F1The Commissioner may appoint such officers as he may determine with the approval of the Treasury as to numbers and conditions of service.

The Health Service Commissioner for England may appoint and pay a mediator or other appropriate person to assist him in the conduct of an investigation under this Act.

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any officer or member of staff of the Parliamentary Commissioner or

any person discharging or assisting in the discharge of a function of a Local Commissioner,

To assist him in any investigation F1the Commissioner may obtain advice from any person who, in his opinion, is qualified to give it.

F2The Commissioner may pay to any such person from whom he obtains advice under this paragraph such fees or allowances as he may determine with the approval of the Treasury.

shall be paid out of money provided by Parliament, and

shall not exceed such amount as the Treasury may sanction.

Section 33 of that Act (consultation between Local Commissioners, Parliamentary Commissioner and Health Service Commissioners) shall be amended as follows.

In subsection (1) for the words “sections 109” to the end of paragraph (b) and for the words “Part V of the Act of 1977” there shall be substituted “ the Act of 1993, ”.

In subsection (3)—

In subsection (4) the words “or Part V of the Act of 1977” shall be omitted.

In subsection (5) for the words “paragraph 16 of Schedule 13 to the National Health Service Act 1977” there shall be substituted “ section 15 of the Act of 1993 ”.

In subsection (6) for the words “the Act of 1977” onwards there shall be substituted “ the “Act of 1993” means the Health Service Commissioners Act 1993. ”