Legalize / United Kingdom / Public General Act

Health Service Commissioners Act 1993

Type Public General Act

Publication 1993-11-05

State In force

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Health Service Commissioner

Notes:

1

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

(a) a Health Service Commissioner for England and

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

Health service bodies subject to investigation

The bodies subject to investigation

2

(1) The bodies subject to investigation by the Commissioner are—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) National Health Service trusts managing a hospital, or other establishment or facility, in England,

(da) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(db) NHS foundation trusts,

(dc) NHS England,

(dd) integrated care boards,

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

(a) established on or before 1st April 1974, or

(b) established after that date and designated by Order in Council as ones to which this section applies.

(6) 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.

Matters subject to investigation

General remit of Commissioners

3

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

(a) a failure in a service provided by a health service body,

(b) a failure of such a body to provide a service which it was a function of the body to provide, or

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

(1YA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(a) the health service body,

(b) a person employed by that body,

(d) a person to whom that body has delegated any functions.

(1A) Where a family health service provider has undertaken to provide any family health services and a complaint is duly made to the Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of—

(a) action taken by the family health service provider in connection with the services,

(b) action taken in connection with the services by a person employed by the family health service provider in respect of the services,

(c) action taken in connection with the services by a person acting on behalf of the family health service provider in respect of the services, or

(d) action taken in connection with the services by a person to whom the family health service provider has delegated any functions in respect of the services,

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

(1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1C) 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) , or has undertaken to provide direct payment services, and a complaint is duly made to the Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of—

(a) a failure in the service provided by the independent provider,

(b) a failure of the independent provider to provide the service, or

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

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

(a) the independent provider,

(b) a person employed by the provider,

(d) a person to whom the provider has delegated any functions.

(1E) Where a complaint is duly made to the 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.

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

(3) Any question whether a complaint is duly made to the Commissioner shall be determined by him.

(4) Nothing in this Act authorises or requires the 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.

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

(a) a family health service provider,

(b) a person employed by a family health service provider,

(d) a person to whom a family health service provider has delegated any functions.

(6) Nothing in this Act 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,

(d) a person to whom an independent provider has delegated any functions.

(7) 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.

Matters excluded from investigation

Availability of other remedy

4

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

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

(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 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 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 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.

Exercise of clinical judgment

5

General health services and service committees

6

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

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

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

(5) 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 ... 126 or 129 of the National Health Service Act 2006 by virtue of section 17 of the 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 National Health Service (Scotland) Act 1978 by virtue of section 17 of the Health and Medicines Act 1988.

Personnel, contracts etc

7

(1) 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 the National Health Service Act 2006 or the National Health Service (Wales) Act 2006 ....

(2) 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 section 9 of the National Health Service Act 2006 ...), ...

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

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

(3A) 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

(3B) Nothing in the preceding provisions of this section prevents 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 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.

Complaints

Individuals and bodies entitled to complain

8

(1) 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.

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

(a) a local authority or other authority or body constituted for the purposes of the public service or of local government (including the Assembly),

(b) an authority or body constituted for the purposes of carrying on under national ownership any industry or undertaking or part of an industry or undertaking, and

(i) whose members are appointed by Her Majesty or any Minister of the Crown or government department or by the Assembly, or

(ii) whose revenues consist wholly or mainly of money provided by Parliament or out of the Scottish Consolidated Fundor the Assembly.

Requirements to be complied with

9

(1) The following requirements apply in relation to a complaint made to the Commissioner.

(2) A complaint must be made in writing.

(3) The complaint shall not be entertained unless it is made—

(a) by the person aggrieved, or

(b) where the person by whom a complaint might have been made has died or is for any reason unable to act for himself, by—

(i) his personal representative,

(ii) a member of his family, or

(iii) some body or individual suitable to represent him.

(4) 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.

(4A) In the case of a complaint against a person who is no longer of a description set out in section 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.

(4B) In the case of a complaint against a person falling within section 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.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Referral of complaint by health service body

10

(1) A health service body may itself refer to the 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).

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

(a) in writing,

(b) by the person aggrieved or by a person authorised by section 9(3)(b) to complain to the Commissioner on his behalf, and

(c) not more than a year after the person aggrieved first had notice of the matters alleged in the complaint, or such later date as the Commissioner considers appropriate in any particular case.

(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) 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.

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

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

Investigations

Procedure in respect of investigations

11

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

(a) to the health service body concerned, and

(b) to any other person who is alleged in the complaint to have taken or authorised the action complained of,

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

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

(a) to the family health service provider, and

(b) to any person by reference to whose action the complaint is made (if different from the family health service provider),

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

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