4.6 The Ombudsman derives his powers from the Health Service Commissioners Act 1993, and the Health Service Commissioners (Amendment) Act 1996. This jurisdiction now extends to all complaints by, or on behalf of, NHS patients with the exception of complaints about any action by a Health Service body to which the protective functions of the Mental Welfare Commission may be exercised in accordance with its remit under the 1984 Act. By agreement the Mental Welfare Commission will also be the appropriate organisation rather than the Ombudsman when complaints within its remit involve primary care and independent providers.

4.7 In distinguishing between the roles of the two organisations, however, it is not enough to say that all complaints by, or on behalf of, persons with mental disorder should be directed to the Mental Welfare Commission when the NHS procedure has been invoked and exhausted. Some complaints relating to persons with mental disorder, will be solely about alleged maladministration of the complaint and these are within the remit of the Ombudsman. Others will concern matters unrelated to the mental disorder or its treatment and will also fall within the remit of the Ombudsman.

Memorandum of Understanding

4.8 A Memorandum of Understanding between the Mental Welfare Commission for Scotland and the Health Service Ombudsman has been drawn up. It should not be necessary for anyone to approach both the Commission and the Ombudsman simultaneously. Any necessary discussions between the two organisations to decide which will take the matter forward, will observe confidentiality and will address the nature of the complaint, not the detail. (See Annex 4A.)

The Commission's Role in NHS Complaints

4.9 The main stages at which complaints may be made to the Mental Welfare Commission are:

· at the outset of complaining, for advice and guidance only;

· when a complainant is dissatisfied following local resolution and the convener has refused his request for an independent review;

· when a complainant is dissatisfied with the outcome of the independent review.

Convening Decisions

4.10 Where a complaint falls into the second or third of these categories, the Commission may recommend that the decision of the convener or the findings of the panel should be reconsidered in preference to a Commission investigation of the substance of the original complaint. This reflects the view of the Commission and the Ombudsman that the NHS complaints procedure should normally be fully exhausted before they consider investigation and that such investigation should be a local NHS responsibility wherever possible.

Commission Follow-Up

4.11 The Commission may, in relation to its more general remit, take up issues arising out of a complaint which have been fully investigated by the NHS complaints procedures - for example the outcome of either local resolution or an independent review panel - and may make a recommendation for changes in procedures within a hospital. The Commission may make enquiries to ensure that these changes have taken place and may inform relevant bodies of the outcome of their recommendations.

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