Inner House upholds mental health tribunal’s decision not to hold hearing in second London transfer warrant refusal

About this case:

• Citation:
  [2025]CSIH 18
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Malcolm

Dr Agnes Johnston, the responsible medical officer in respect of first respondent GA, sought to have a determination of December 2024 in respect of GA set aside on the basis that the tribunal should not have applied the principle of res judicata when considering the application. The respondents’ position was that the tribunal was entitled to conclude that the material before it was not sufficient to disapply the principle.

The appeal was heard by the Lord Justice Clerk, Lord Beckett, with Lord Malcolm and Lord Armstrong. Pugh KC and Black, advocate, appeared for the appellant, Paterson KC for the first respondent and McBrearty KC for the second respondent.

Essentially same question

The first respondent, GA, was subject to a compulsory treatment order in relation to an eating disorder. In May 2024, at the instance of the responsible medical officer, the Scottish Ministers granted a warrant for her transfer to a hospital in England. This warrant was successfully appealed to the tribunal by GA and her father, the named person in respect of GA and the second respondent to the appeal.

It was concluded by the tribunal that a transfer so far away from GA’s family and friends was not the least restrictive option in her case, and that insufficient investigations had been made into the clinic in London which had been identified as capable of addressing her complex needs. 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.

Three weeks after the tribunal’s decision, the RMO sought another warrant for the same purpose, which was granted in September. A differently constituted mental health tribunal held a preliminary hearing in December 2024 to consider whether there should be another evidentiary hearing on essentially the same question and considered that on the basis of res judicata there should not. While new material had been presented to the tribunal, it was not sufficient to overcome the application of the principle.

For the appellant it was submitted that technical rules, including restrictions on admissible evidence, should not thwart the patient’s welfare and best interests, which ought to be assessed at the time of the decision. It was noted that, for similar reasons, the children’s hearings system was not subject to res judicata. The respondents submitted that, as a specialist tribunal, the mental health tribunal was entitled to consider the material relied upon and conclude that it did not justify another hearing.

Significant concerns raised

Lord Malcolm, delivering the opinion of the court, said of the applicable law: “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. Finality of litigation applies unless it would operate contrary to the wider interests of justice. Absent a good reason, such as fresh evidence or a change of circumstances, a tribunal decision cannot be circumvented by a subsequent administrative decision.”

He continued: “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. 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.”

Noting that this did not mean the appellant could repeatedly apply until the desired outcome was achieved, Lord Malcolm said: “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 v Glasgow City Council (2020) 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. 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.”

He concluded: “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 in 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’. That decision having been made, the interests of justice did not require that it be explored at an evidential hearing.”

Having determined that the tribunal had made a decision it was entitled to make, the appeal was refused.