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Dr Agnes Louise Johnston against GA and another (Court of Session) [2025] CSIH 18 (11 June 2025)
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[2025] CSIH 18
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2025]CSIH 18
XA21/25
Lord Justice Clerk
Lord Malcolm
Lord Armstrong
OPINION OF THE COURT
delivered by LORD MALCOLM
in the appeal
by
DR AGNES LOUISE JOHNSTON
Appellant
against
GA AND ANOTHER
Respondents
Appellant: Pugh KC and Black; NHS Scotland Central Legal Office
First Respondent: Paterson KC; Ormistions Law Practice Limited
Second Respondent: McBrearty KC; Starling Lawyers
11 June 2025
Introduction
[1]
This appeal raises the question of whether, and if so to what extent, a mental health
tribunal is bound by an earlier tribunal decision in respect of the same patient. The
circumstances can be summarised as follows. GA is subject to a compulsory treatment order
and is currently in a specialist unit for those with an eating disorder. In May 2024, and at
the instance of the responsible medical officer (RMO), the Scottish Ministers granted a
warrant under cross border regulations for her transfer to a hospital in England. In June the
2
warrant was successfully appealed to the tribunal by GA and her father (the named person).
Three weeks after that decision the RMO sought another warrant for the same purpose,
which was granted in September. It was appealed to a differently constituted tribunal. In
December 2024 it held a preliminary hearing to decide whether, given the earlier decision,
there should be another evidential hearing on essentially the same question. Under
reference to the doctrine of res judicata (the matter has been decided), the appeal was
granted. Thus the cross-border transfer has not taken place. This court is now asked to set
aside the December determination as a legally erroneous decision, essentially on the basis
that res judicata should not have been applied in proceedings where circumstances can
change and the primary concern is the best interests of the patient.
The June tribunal decision
[2]
The June tribunal set out the evidence presented for and against the proposed
transfer, the parties' submissions, and its findings in fact. Given GA's severe mental
disorder, compulsory treatment remained necessary to ensure nutrition and survival. The
improvement in her mental health had reached a plateau and the desire of the clinicians was
to pass on the care to a suitable specialist unit more capable of addressing GA's complex
needs. None had been found in Scotland but one had been identified near London.
The tribunal considered it a very difficult case. It concluded that a transfer so far away from
family and friends was not the least restrictive option. There had been insufficient
investigation into the staff resources and skills available at the London unit to keep the
patient safe. None of GA's clinical team had visited it. Reliance had been based on
anecdotal comments rather than research into patient outcomes. There had been no rebuttal
of inspectors' criticisms. There was no recovery plan should there be a traumatic response
3
to the transfer. The tribunal was not convinced that local solutions had been fully
investigated, nor that the benefits of a transfer would outweigh the serious risks for GA.
There was no clear evidence that the transfer would provide the patient with the maximum
benefit or be in her best interests. A cross border transfer order was refused.
The December tribunal decision
[3]
After hearing submissions on the issue, the December tribunal commented that in
principle the rationale underpinning res judicata is as desirable in disputes about mental
health care as in any other type of case, though they may not apply with their full rigour.
The essence of the dispute was whether the anticipated benefits of in-patient care at the
London hospital outweighed the practical disadvantages and the identified risks of the
move. Material additional to that before the June tribunal had been presented, but it was
insufficient to overcome the application of res judicata in respect of the prior refusal of the
transfer. Some of the new information was administrative in nature; some did not bear
directly on the issues highlighted by the earlier tribunal. Other material pre-dated the June
decision. Recent documents vouching regulatory inspections were general in nature. The
opinions of the RMO and other doctors were useful background but could have been
presented in June. In any event, they did not rebut six of the nine identified particular
concerns expressed by the June tribunal.
[4]
The December tribunal referred to passages in the judgment of Andrews LJ in
that (a) an earlier decision will be final and binding on the parties to it unless there is a legal
justification for departing from it, and (b) absent a change in circumstances, material which
could and should have been presented to the original tribunal cannot be relied upon. Fresh
4
difficulty for the RMO was that none of the additional material satisfied both of the first and
second limbs of that test; those limbs in summary being (i) could not have been used at the
earlier tribunal, and (ii) if given to the tribunal, would have had an important influence on
the outcome. While the tribunal was sympathetic to the comment that the RMO did not
have advance notice of the June tribunal's concerns, the problem was that they had not been
met by the material she now relied upon. Thus the decision was that "the current
proceedings are caught by the doctrine of res judicata, as that doctrine has come to be applied
in a public law context", see paragraph 29.
A summary of the parties' submissions
The RMO
[5]
It was accepted that res judicata could apply in a public law context, though not as
strictly as in respect of a finally determined private court action. Scrutiny of the relevant
statutory framework supported the RMO's appeal. Nothing in the rules governing the
tribunal refers to dismissal because of an earlier decision. There is an inquisitorial aspect to
the procedure. The primary concern is to bring maximum benefit to the patient. Technical
rules, including restrictions on the scope of admissible evidence, should not thwart the
patient's welfare and best interests; they should be assessed on the information available at
the time of the decision. For similar reasons, the children's hearings system is not subject to
res judicata. The RMO is not seeking to nullify or frustrate the June decision. In any event,
this was an appeal against a subsequent warrant granted by the Scottish Ministers on the
basis of different information. The June tribunal could not and did not determine the
question of a transfer for all time. There was genuinely new information available to the
5
second tribunal which should have allowed evidence to be led in support of the second
warrant.
GA and her father
[6]
The earlier decision should be respected unless there is a good reason for re-visiting
the issue. The RMO had the chance to put forward her best case in June. Nothing had been
presented in support of the second warrant which placed a different complexion on the case.
The principles of res judicata "resonate" in permanence proceedings, see RG v Glasgow City
Council 2020 SC 1 at paragraph 30. Plainly decisions of the present kind could not be
binding for all time, but there had to be fresh evidence or a material change in
circumstances. Another dispute on the same issue militates against the wellbeing of GA. It
wastes money, resources, and the time of the tribunal. There was no procedural
requirement for the second tribunal to hear oral evidence. As a specialist tribunal it was
entitled to consider the material relied upon and conclude that it did not justify another
evidential hearing into the proposed transfer to the London hospital.
The case law
[7]
The following general propositions can be derived from the authorities cited by the
parties, many of which concerned administrative or public law disputes. The doctrine of res
judicata is not confined to private law adjudications. Unless the relevant statutory
framework indicates otherwise, the principles underlying the plea can apply to any decision
which finally and absolutely establishes the existence of a legal right; Thrasyvoulou v
Secretary of State for the Environment [1990] 2 AC 273, Lord Bridge of Harwich at 289. Finality
of litigation applies unless it would operate contrary to the wider interests of justice; R(Ex
6
parte Momin Ali) v Secretary of State for the Home Department [1984] 1 WLR 663. Absent a good
reason, such as fresh evidence or a change of circumstances, a tribunal decision cannot be
circumvented by a subsequent administrative decision; Secretary of State for the Home
which nullifies or sets at nought a tribunal's decision. Mere disagreement is not enough for
a second application. The applicant must reasonably and in good faith consider that they
have information, not known to the tribunal, which puts a significantly different complexion
on the case; R(Von Brandenburg) v East London and The City Mental Health Trust and another
[8]
The plea of res judicata is based on considerations of public policy, equity and
common sense which will not tolerate the same issue being litigated repeatedly between the
same parties on substantially the same basis; Grahame v Secretary of State for Scotland 1951 SC
368 at 387. The plea can act in a positive manner by allowing facts determined earlier in
another forum to be founded upon; RG v Glasgow City Council 2020 SC 1. Thus when
considering an application for a permanence order, it was open to a sheriff to proceed on the
basis of facts found by a different sheriff at earlier ground of referral proceedings, and to
refuse to hear substantially the same evidence as that before the first court.
Analysis
[9]
The well-established rules of res judicata as they apply to adversarial private law
claims cannot simply be transferred to cases of the present nature, nor indeed to many
public law claims. The plea is designed to provide certainty when a matter has been finally
determined, for example that X can exercise a right of access, or Y has breached a contract.
(That said, there are public law examples of this in operation, for instance in respect of a
7
decision that the mental health tribunal had no jurisdiction in the matter, see C, Petitioner
2012 SLT 521.) The result is that the parties cannot re-litigate the same issue. However, with
regard to a tribunal required to make decisions which are best for the patient as matters
stand at the time, there can be no such finality. And that was not the effect of the June
decision; the tribunal could not and did not say that the transfer could never happen.
Amongst other things, it commented on evidence which was missing and which might have
made a difference. If come December those deficiencies had been remedied, how could one
stop the issue being reconsidered by the tribunal?
[10]
It does not follow from the non-applicability of strict res judicata that it is open season
for repeated requests to a mental health tribunal until the desired outcome is achieved. If
the RMO had done no more than argue that the June decision was wrong, that would fall
foul of the authorities mentioned earlier. But by the time of the December hearing
additional evidence had been lodged. Plainly the intention was to persuade the tribunal that
the perceived weaknesses had been addressed and that the case for the transfer was now
sufficiently strong for an order to be granted. In contrast, GA's representative submitted
that the new evidence was not sufficiently different from that before the earlier tribunal. If it
had been applying a strict rule of res judicata, the December tribunal would not have
assessed that material. In doing so, its purpose was to determine whether, in the light of the
June decision, it justified further procedure.
[11]
As we understand it, essentially the tribunal's reasoning was as follows. The issue of
the proposed transfer to the London hospital was dealt with six months earlier. Having
regard to the terms of that determination, there was nothing in the information now relied
upon by the RMO which justified re-opening the matter. The tribunal is a specialist body
well able, as part of its case management powers, to assess the material relied on by the
8
RMO and decide whether it justified exploration at an evidential hearing. Although not
binding in the sense of res judicata, in the event the June decision was highly relevant to the
outcome. To have granted an evidential hearing would, in effect, have allowed a repeat
adjudication on substantially the same basis as that which occurred in June. It can be noted
that in RG the court explained that in cases of this kind the decision-maker can examine
whether proffered evidence does or does not merit the re-examination of findings made
earlier in related but different proceedings, see paragraph 34.
[12]
The reference to res judicata in the context of a case of this kind has the potential to
cause confusion, and we can understand why it has been contested. The concept is redolent
of a final judgment which settles a dispute between two parties once and for all. Either the
plea is available or it is not. If it is, the second action does not get off the ground. However
the December tribunal considered all of the material relied on by the RMO. By examining it
and weighing up its importance, the tribunal avoided an overly technical approach and
stayed true to its primary responsibility towards the patient.
[13]
The terminology used appears to have been influenced by certain passages in
Andrews LJ's judgment in Adeboye, in particular the notion that the principles of res judicata
may apply, but not with their full rigour; and also the reference to evidence having to meet
the Ladd v Marshall tests, the English equivalent of our res noviter veniens ad notitiam (things
newly come to light) as considered in cases such as Rankin v Jack 2010 SC 642 and RG at
paragraph 33. For reasons similar to those ruling out strict res judicata, we cannot endorse
the notion that the December tribunal required to ignore any evidence which reasonably
could have been put before the earlier hearing, and this however material it was to the
correct outcome. Had it applied such a rule, there might well have been a difficulty.
However we are satisfied that in this regard the key finding was that, for the reasons set out
9
in paragraph 21 of the judgment, "the significant concerns raised by the tribunal in its
decision in June do not appear to have been met by the material on which reliance is now
placed", see paragraph 28. That decision having been made, the interests of justice did not
require that it be explored at an evidential hearing.
[14]
It is worth noticing the different context of the Adeboye case, namely whether the
Home Secretary could issue a lawful deportation order notwithstanding a successful appeal
to the Upper Tribunal against an earlier order. Indeed Andrews LJ herself derives the
reference to Ladd v Marshall from TB(Jamaica), a case where the court confirmed that a mere
disagreement with an immigration appeal tribunal's decision to grant leave to remain did
not justify its circumvention by way of a subsequent inconsistent executive decision. These
cases were much closer to circumstances which would justify a res judicata/res noviter type
approach. Rather than focus on those concepts, in the present context we see merit in the
approach outlined by Lord Bingham of Cornhill in Von Brandenburg at paragraph 10,
namely, does the material now relied upon put "a significantly different complexion on the
case as compared with that which was before the [earlier] tribunal"? Plainly the December
tribunal did not think so.
Decision
[15]
While we might not have expressed matters in exactly the same way, we are satisfied
that the December decision is not vitiated by a material error in law. It was a decision which
the tribunal was entitled to make. It follows that the appeal is refused.