Alexandra Tampakopoulos
Editor
Foreword
In this inaugural edition, Sarah Przybylska, Paul Renteurs and Christopher Veal provide a fascinating insight into the series of ongoing inquests into the deaths of patients treated by Ian Paterson, a breast cancer surgeon who was sentenced to 15 years’ imprisonment in respect of 17 counts of wounding with intent. Grace Forbes weaves together a detailed and extremely helpful analysis of the case of Henshaw and its salutary lessons for inquest practitioners, whilst Gabriele Watts thoughtfully reviews the notable case of O’Brien, which concerns the distinction between possible and speculative causes in the coronial context. Finally on inquests, I look at the position of non-state actors in Article 2 inquests and the question of whether it is permissible to use judgmental language in connection to them having regard to the Gorani case. Turning then to Public Inquiries, Christina Russell provides a helpful update as to where we are in respect of a crucial concern in the field, namely the actual implementation of inquiry recommendations. Finally, Christoper Gillespie offers his considered view on the question of a Chair’s power to pause public inquiry proceedings.
I also take this opportunity to thank Sir Peter Thornton KC, Oliver Carlyon (Fieldfisher) and Laura Stephenson (2 Hare Court), who each provided fascinating talks as part of our annual Inquest and Public Inquiries seminar last month. If you wish to be informed about our events going forward, please do let JuliaFox@2harecourt.com know, or subscribe here.
I hope you find our newsletter informative. If you wish to discuss any of the matters covered in the newsletter please do reach out to the authors. Also, if you have any suggestions for topics for our next edition please do get in contact.
Sarah Przybylska, Paul Renteurs and Christopher Veal
HH Richard Foster, a former circuit judge and Deputy High Court Judge, is conducting a series of inquests into the deaths of patients treated by Ian Paterson. Readers will remember that Paterson was a high-profile breast cancer surgeon convicted in 2017 of 17 counts of wounding with intent and sentenced to 15 years’ imprisonment, increased on appeal to 20 years. He had carried out medically unnecessary cancer surgery on ten patients between 1997 and 2011. His motives were unclear.
Following these convictions, HM Senior Coroner for Birmingham and Solihull began inquiries to determine whether there was reason to suspect that any former patient of Paterson in his private or NHS practice died an unnatural death as a result of his actions. The investigation involved a review of the medical records for each patient by a multi-disciplinary team of surgeons and oncologists [‘the MDT’], who then reported whether there appeared to have been any culpable act or omission in the patient’s treatment and whether, on the balance of probabilities, the failing more than minimally, trivially or negligibly contributed to death. At present 62 inquests have been opened and adjourned as a result of these inquiries.
HM Deputy Coroner is now conducting a lengthy series of hearings expected to last into 2026 and beyond. The first module consists of ‘normal’ inquests into the death of each patient to determine the cause of death. Later modules will deal with systemic issues, the response of regulators and other NHS bodies, the patient recall process initiated once concerns about Paterson’s treatment were raised, and the question of a prevention of future deaths report…
The recent High Court decision in Henshaw offers an important insight into the legal and procedural complexities of Article 2 inquests and the ways in which a Coroner can be deemed to have fettered their own discretion.
The inquest concerned the death of a vulnerable woman in custody and explored concerns about missed medical warnings and flawed emergency responses.
The High Court was critical of the Coroner’s approach to which witnesses were called, which issues were left to the jury and the application of Tainton principles.
However, the case is an example of a robust endorsement of the ability of a detailed, public judgment to properly stand in the place of a fresh inquest in appropriate circumstances, even where things have gone wrong.
THE BACKGROUND AND FACTS
On 31 August 2018, Georgina Henshaw died in her cell at HMP Foston Hall having suffered a sudden cardiac arrythmia and consequent cardiac arrest. At the point of her death she was serving a life sentence for the murder of a man by stabbing, having entered the prison system in July 2017…
Background
In summary, Linda O’Brien had died on 9 May 2020 after falling from the window of her flat on the fourth floor. It was likely that she was intoxicated at the time.
Present in her flat was also Mr McMahon (her former partner). By way of background, several months before Ms O’Brien’s death, he had been convicted of assaulting her. A restraining order was in place which prevented him from contacting her. Furthermore, one month before her death on 7 April 2020, police attended Ms O’Brien’s flat following reports of a disturbance. Mr McMahon was found drunk at the address, but Ms O’Brien explained that there was no disturbance. The police were unaware that Mr McMahon was subject to a restraining order and in breach of it.
Turning to her injuries, whilst the majority of them were consistent with a fall, there were some injuries to the right side of her face which would be consistent with having been punched or slapped. Indeed, there was some evidence that prior to her fall she may have been struck with a weapon on the left shoulder and right shin. Given these injuries, and that Mr McMahon was the only other person present in the property, he was arrested on suspicion of attempted murder but later released on bail. Ultimately, he was sentenced to 20 months’ imprisonment for breach of the restraining order and for theft but the case against him for attempted murder was dropped.
Issues and challenge
The scope of the inquest became a key issue in this case. The coroner was invited to investigate whether omissions by the police on 7 April (failure to recognise that Mr McMahon was in breach of a restraining order and failure to subsequently arrest) had contributed to Ms O’Brien’s death…
In Jamieson type cases (that is non-Article 2 cases ) the position seems clear that judgmental language in answer to the how question (by what means) within a conclusion is to be avoided. After R (Gorani) v Assistant Coroner for West London [2022] EWHC 15, where Article 2 applies, the position might be said to be less clear in respect of the use of judgmental language as regards non-public agents/ organisations.
The facts in Gorani can be summarised as follows: In the year before the deceased’s death, he had received psychiatric treatment for anxiety and depression from his GP and the local mental health NHS trust team. In the week prior to his death, the deceased had sought help from the single point of access at the NHS trust. This call was not assessed and triaged as it ought to have been and, as a result, he was not spoken to. The following day the deceased saw his GP who assessed him and referred him for psychotherapy. The next day the deceased was dismissed at work. He fell to his death from a fifth-floor balcony four days later. The Coroner ruled that the Article 2 systems duty was arguably breached by a Mental Health Trust but did not find that Article 2 was engaged in respect of a GP.
In the Administrative Court, the argument that once a coroner had declared that the inquest was to be “an Article 2 inquest”, all aspects of the Article 2 jurisdiction were in play, was rejected. In other words, there may be some cases where some issues (and indeed IPs) can be differentiated from others in respect of the Article 2 duty. It did not however go on to consider whether judgmental language can still be used in respect of non-public agents/organisations in respect of which Article 2 is not engaged…
The government’s response to the Enhancing Public Trust report of the House of Lords Statutory Inquiries Committee of 16 September 2024[1][2] (“the 2024 report”) was published on 10 February 2025[3]. The long-standing issue of how to achieve implementation of the recommendations of the 2024 report itself and also of inquiry recommendations in general remains live and resolution of the issue has certainly not been “swift”.
The government accepted six of the nine recommendations. In summary, these are – the recommendation that ministers should consider the legal basis and chair of the inquiry on a case-by-case basis (Recommendation 1), victims and survivors should be consulted on terms of reference where appropriate (Recommendation 2), indicative deadlines should be considered (Recommendation 3), an interim report requirement should be considered for inquiries likely to be of long duration (Recommendation 4), lessons-learnt papers should be produced (Recommendation 8) and the Inquiries Unit should be sufficiently resourced and should establish a wider community of practice for public inquiries (Recommendation 9). A further two recommendations as to implementation of the 2024 report (Recommendation 6) and implementation monitoring after inquiries (Recommendation 7) are “for Parliament”.
The remaining 2024 report recommendation (Recommendation 5) was for swift implementation of a further 26 reiterated (and sometimes slightly amended) recommendations from an earlier House of Lords select committee report of 2014[4] (“the 2014 recommendations”), including many which were accepted by the government at the time, but which have mostly not yet been implemented…
Following the application to the Criminal Cases Review Commission by representatives of Lucy Letby in respect of her criminal convictions in March of this year, representatives for the former managers of the Countess of Chester hospital made an application pursuant to s17(3) of the Inquiries Act 2005 (“the Act”) to the Chair of the Thirlwall Inquiry to “pause” the inquiry “pending the outcome of the Criminal Cases Review Commission’s (“CCRC”) consideration of an application made by Lucy Letby in respect of her criminal convictions.” At the same time, an application was made to the Minister to suspend the inquiry pursuant to section 13(1) of the Act.
The application suggested that the application made by Lucy Letby to the CCRC, at face value at least, could not be ignored by the Inquiry and merited consideration given the international panel of expert opinion which appeared to support it. At the heart of the application was a concern about the completeness of the inquiry and fairness to its participants. The Inquiry had proceeded on the basis that Lucy Letby was responsible for the deaths and unexplained collapses of the babies at the Countess of Chester hospital, which was entirely in accordance with its terms of reference (in respect of which Letby’s guilt is fundamental). It was argued that there now appeared to be a serious risk that Letby’s convictions may be quashed. Given that the fundamental purpose of the inquiry was to understand the circumstances in which the babies came to die/suffer unexplained collapses and that there had been no investigation of alternative explanations, such as poor clinical care, it was argued that it would be wrong to proceed regardless. As to the issue of fairness, all witnesses were questioned on the basis of the single killer nurse scenario, alternative scenarios were not explored and their evidence would be judged on that basis alone. The application did not envisage a complete stop to the Inquiry’s work but a pause in respect of most aspects and progress in relation to matters that were not conditional on Letby’s conviction (for example, safeguarding processes and the treatment of bereaved parents).
As to the relevant legislation, section 17(1) provides that “subject to any provision of this Act (emphasis added)…the procedure and conduct of an inquiry are to be such as the chairman of the inquiry may direct.” By section 17(3), “In making any decision as to the procedure or conduct of an inquiry, the chairman must act with fairness and with regard also to the need to avoid any unnecessary cost (whether to public funds or to witnesses or others).”…
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