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Legislation for the Health Service Ombudsman

The Health Service Commissioner (or Health Service Ombudsman) draws his powers almost wholly from the Health Service Commissioners Act 1993, as since amended.

The Health Service Commissioner (or Health Service Ombudsman) for England was first established under the National Health Service Reorganisation Act 1973 and the office opened for business on 1 October 1973. However, he now draws his powers almost wholly from the Health Service Commissioners Act 1993. 

Below are set out those changes made to the 1993 Act which are still relevant, and other legislation particularly affecting the powers of the Ombudsman, after a brief note on the background.

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  1. The background to the 1993 Act and the Health Service Ombudsman for England
  2. The main legislation amending the 1993 Act
  3. Legislation (now) affecting only one section of the 1993 Act
  4. Orders in Council (under section 2(5)(b) of the 1993 Act 
  5. Other legislation affecting the Health Service Ombudsman’s powers

1. The background to the 1993 Act and the Health Service Ombudsman for England:

The 1993 Act replaced earlier legislation, contained in the Health Service Act 1977 and the Health Service ( Scotland) Act 1978, and provided for Health Service Ombudsmen for England, Scotland and Wales. (The Northern Ireland Ombudsman was the Health Service Ombudsman for Northern Ireland, under separate legislation.) Since devolution, separate legislation has been enacted for complaints about the National Health Service in Scotland and Wales. (The Scottish Public Services Ombudsman now has jurisdiction over complaints about the NHS in Scotland, under the Scottish Public Services Ombudsman Act 2002; and the Public Services Ombudsman for Wales now has jurisdiction over complaints about the NHS in Wales under the Public Services Ombudsman (Wales) Act 2005. The 1993 Act has been amended so that as from 23 October 2002 it no longer covers complaints about the NHS in Scotland; and as from 1 April 2006 it no longer covers complaints about the NHS in Wales. Hence, as from the latter date, apart from some provisions dealing with such matters as co-operation with other Ombudsmen, the 1993 Act deals only with the Health Service Ombudsman for England.

 2. The main legislation amending the 1993 Act:

The Health Authorities Act 1995, s.2(1) and schedule 1, paragraph 126; and s.5(1) and schedule 3:
   removed section 2(1)(b), repealed section 2(1)(e), and amended section 14(1).

The Health Service Commissioners (Amendment) Act 1996:

That inserted sections 2A, 2B, 3(1A) to (1D), 3(5) to (7), 4(4) to (6), 6(5), 7(2)(c), 7(3A) and (3B), 11(1A), 11(1B), 11(5A), 12(1A), 14(2A) to (2D), 15(1)(e), 15(1B) and (1C), and 15(3), and paragraph 3A of schedule 1; repealed sections 5, 6(1) and (2), 9(5) and (6), and 14(2)(c); substituted sections 14(1)(c) and (4); amended sections 7(1) and(2), 14(3), 15(2), and 19; and made some other changes. The main effect of the 1996 Act was to extend the Ombudsman’s remit. It extended that to cover complaints about family health service providers (such as GPs) and independent providers carrying out NHS services; and to cover complaints (within the terms of the 1993 Act) about clinical matters. However, those changes had no effect for actions completed before 1 April 1996: see section 14(3) of the 1996 Act, and its commencement order, SI 1996/970.

The National Health Service (Primary Care) Act 1997, s.41(1) and schedule 2, part 1, paragraph 68: amended section 2A(1); and inserted section 3(1ZA).

The Government of Wales Act 1998, s.112 and schedule 10:
       inserted various provisions since repealed by the 2005 Act mentioned below; amended sections 1(3) and 8(2)(a) and (c); and made various amendments to sections 14 and 18 and schedule 1, and elsewhere, arising from devolution in Wales.

The Health Act 1999, s.65(1) and schedule 4, paragraph 85; s.65(2) and schedule 5; and s.43:
         inserted section 2(1)(da); repealed section 3(1B); and made amendments to sections 15 and 19.

The Health Service Commissioners (Amendment) Act 2000: amended sections 2A(1) and 2B(1)(a) and (b); and inserted sections 9(4A) and (4B).   

The Freedom of Information Act 2000, s.76(2) and schedule 7, paragraphs 5 and 6: inserted sections 15(4) and 18A.       

The Scottish Public Services Ombudsman Act 2002, s.25(1) and schedule 6, paragraph 14, repealed the 1993 Act generally in matters within the devolved competence of the Scottish Parliament.

The National Health Service Reform and Health Care Professions Act 2002, s.1(3) and schedule 1, part 2, paragraph 47; s.2(5) and schedule 2, part 2, paragraph 61; and s.37(2) and schedule 9, part 1:
 substituted s.2(1)(a); and amended sections 2(1)(da), 6(3), and 6(5).

The Health and Social Care (Community Health and Standards) Act 2003, various provisions: inserted sections 2(1)(db), 3(1E), 11(1C), and 14(2E) and (2F); substituted section 2A(1)(a); repealed section 2(1)(g) (and is repealing sections 2(1)(f) and 4(6) from a date or dates yet to be set); and amended sections 2(1)(c), 2A(1)(c), 4(4)(a), 6(5), 12(1A), and 18(1).

The Scottish Public Services Ombudsman Act 2002 (Consequential Provisions and Modifications) Order 2004 [SI 2004/1823], article 17: repealed various provisions relating to Scotland (sections 1(1)(c), 2(3), 2A(3), 2B(3), and so on); made amendments to sections 14 and 18 and schedule 1; and made small changes elsewhere.

The Public Services Ombudsman ( Wales) Act 2005, s.39(1) and schedule 6, paragraphs 27 to 54:
 repealed various provisions relating to Wales (sections 1(1)(b), 2(2), 2A(2), 2B(2), and so on); substituted sections 2(6) and 18(1)(ba); repealed s.18(1)(a); and made many small changes elsewhere.

The Employment Equality (Age) Regulations 2006 [SI 2006/1031], article 49(1) and schedule 8, part 1, paragraphs 14-16:
amended the early paragraphs of schedule 1 as they apply to future appointments).

The NHS Redress Act 2006, section 15 (about the NHS redress scheme, and not yet in force):
Will insert new sections 3(1F), 7(2)(d), and 14(2G) and (2H), and amend sections 4(4)(a), 11(1C), and 12(1A).

The Regulatory Reform (Collaboration etc. between Ombudsmen) Order 2007 [SI 2007/1889]:
inserted sections 15(1)(aa) and 18ZA, and schedule 1, paragraphs 11(1A) and 12A.

The Local Government and Public Involvement in Health Act 2007, sections 182 and 241, and schedule 12 , part 2, paragraph 15, and schedule 18, part 14:
amended sections 15(1)(aa) and 18ZA(3)-(5), and schedule 1, paragraph 12A.

The Health Act 2009, section 12 (about direct payments for healthcare):
has inserted new sections 2B(1A), and 7(2)(aa), and amended sections 2B(5), 3(1C), 14, and 19.

The Health Act 2009, section 35 and schedule 5, paragraph 13;  and section 38 and schedule 6, (none of which are yet in force):
Section 35 and schedule 5, paragraph 13 (about privately arranged or funded adult social care) will amend section 18(1)(c);
Section 38 and schedule 6 will repeal schedule 2, paragraph 3.

3. Legislation (now) affecting only one section of the 1993 Act:

Section 2 has been amended by:
The National Health Service (Local Pharmaceutical Services Etc.) Regulations 2002 [SI 2002/2861], regulation 26, (which inserted section 2A(1)(d)).

Section 8 has been amended by:
The Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 [SI 1999/1820], article 4 and schedule 2, part 1, paragraph 112, (which amended section 8(2)(c)(ii)).

Section 18 has been amended by:
The Housing Act 2004, s.265(1) and schedule 15, paragraph 37; and s.266 and schedule 16; (which made several amendments to the section, largely since overtaken by other changes).

Section 19 has been amended by:
The Local Government (Wales) Act 1994, s.66(6) and schedule 16, paragraph 108; and s.6(8) and schedule 18.

4. Orders in Council (under section 2(5)(b) of the 1993 Act:

Those designate special health authorities as subject to the remit of the Ombudsman under section 2(1)(c) of the 1993 Act. The Orders which are still effective, and the authorities still covered by them, are as follows:

  • The Health Service Commissioner for England (Special Health Authorities) Order 2005 [SI 2005/251];
  • The National Health Service Litigation Authority;
  • The National Institute for Health and Clinical Excellence (formerly the National Institute for Clinical Excellence);
  • The National Patient Safety Agency;
  • The National Treatment Agency [for Substance Misuse];.
  • The Health Service Commissioner for England (Special Health Authorities) (No. 2) Order 2005 [SI 2005/3428];
  • The NHS institute for Innovation and Improvement;
  • NHS Blood and Transplant (Gwaed a Thrawsblaniadau’r GIG);
  • The Health and Social Care Information Centre;
  • The Health Service Commissioner for England (Special Health Authorities) Order 2006 [SI 2006/305]; and
  • NHS Business Services Authority (Awdurdod Gwasanaethau Busnes y GIG).

5. Other legislation affecting the Health Service Ombudsman’s powers:

The Public Services Ombudsman (Wales) Act 2005, section 25(5).

(There have also been various transitional provisions made over the years covering investigations where bodies have been abolished. Please contact us if you wish for details.)