About this case

Case name

Dr Agnes Louise Johnston v 'AG' and another

Case reference number

XA21/25

Date of hearing

Wednesday 30 April 2025

Time of hearing

10:30 to 13:00 then 14:00 until conclusion

Division

Second Division

Judges

• Lord Justice Clerk
• Lord Malcolm
• Lord Armstrong

Agents and Counsel

For the Appellants (Dr. Louise Johnston)

• Agents: NHS Central Legal Office
• Counsel: Richard Pugh, K.C. and Adam Black

For the Respondents ('AG')

• Agents: Ormistons Law Practice Limited
• Counsel: Chris Paterson, K.C.

For the Respondents ('PG')

• Agents: Starling Lawyers Limited
• Counsel: Kenny McBrearty, K.C.

Case description

[1] This is an appeal from The Mental Health Tribunal for Scotland (“MHTS”). The appellant is the Responsible Medical Officer for the first interested party, AG. AG is subject to a Compulsory Treatment Order (“CTO”) and is presently a patient in a specialist unit in Scotland for those suffering with eating disorders. AG has been subject to the CTO since March 2019. The appellant’s view is that it is in AG’s best interests for her to be transferred to a specialist hospital in London and that there is no other viable option for AG’s treatment. AG and her father, PG, each oppose the intended transfer.

[2] In May 2024 the Scottish Ministers granted a warrant under The Mental Health (Cross border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005 for the transfer of AG to the specialist hospital. AG successfully appealed that decision to the MHTS in June 2024 and an order was made that the transfer “shall not take place.”

[3] In September 2024, the Scottish Ministers granted a further warrant under the 2005 Regulations for the transfer of AG to the same specialist hospital in London. AG, again, appealed to the MHTS. The Tribunal held that the issues before it were captured by the principle of res judicata in that there had been no material change in circumstances between June 2024 and September 2024, but rather the appellant simply disagreed with the outcome of the previous proceedings and had sought to circumvent that decision by making a fresh application to the Scottish Ministers under the 2005 Regulations. The MHTS allowed AG’s appeal and ordered that the proposed transfer “shall not take place.”

[4] The appellant contends that the MHTS erred in law by applying the principle of res judicata to it’s statutory jurisdiction. She argues that the MHTS is a forum governed entirely by statute and that there is no provision or power for the MHTS to sustain a plea of res judicata. Application of res judicata in a forum intended to ensure appropriate care and treatment for patients is wholly inappropriate and contradictory. In the event that res judicata does apply in the MHTS, the appellant argues that it ought not to apply in the present case.

[5] AG and PG each resist the appeal. They argue that the risk of harm associated with the transfer outweighs the potential benefits, not least when it would significantly reduce regular contact with family and friends. They contend that the MHTS was correct to find that the principle of res judicata may be applied in its jurisdiction and that the warrant of September 2024 was captured by it.

[6] The Second Division of the Inner House will hear the appeal on Wednesday 30 April 2025.