Case Note in R (Henshaw) v Assistant Coroner for Derby and Derbyshire [2025]

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.

Given the circumstances surrounding her death, an Article 2 inquest was held with a jury in October 2023.

Ms Henshaw had a complex medical history. She had been prescribed anti-psychotic medication by her community GP before entering the prison system. She had a history of repeatedly overdosing her medication.

The anti-psychotic medication she was taking was associated with long QT syndrome, a rare condition which in most cases is congenital. An ECG carried out in April 2017 suggested an abnormal result. However, ultimately, it was not possible to ascertain the cause of Ms Henshaw’s fatal arrythmia.

In June 2017 Ms Henshaw’s community GP had included ‘high priority’ alert in her records, warning that she should not be issued with any further antipsychotics until she had been reviewed by a psychiatrist, and noting her prolonged QTc as well as her history of recurrent overdoses.

A GP summary was sent to the prison a month later. However, it became apparent during the course of the inquest that that had not included the high priority warning. Anti-psychotic medication was then prescribed by medical professionals at the prison. An ECG requested in May 2018 was never carried out.

Ms Henshaw was believed to have suffered the fatal cardiac arrhythmia between 8:10 AM and 8:40 AM on the day of her death. When she was discovered unresponsive at 8:40 AM, a code blue emergency response was called. A prison nurse inserted an I-gel device to secure Ms Henshaw’s airway. Unfortunately the device was wrongly inserted, meaning that CPR was “doomed to fail”.

The evidence reflected that Ms Henshaw was still alive (although “deeply unconscious”) when the I-gel device had been inserted. However, the chances of surviving an out-of-hospital cardiac arrest were noted to be “under 50%”.

GROUNDS OF CHALLENGE AND DETERMINATIONS

Three grounds of challenge were advanced on behalf of the Claimant (Ms Henshaw’s mother).

Ground 1: The Natural Causes Direction

The Coroner had directed the jury that there were two possible conclusions: a short form conclusion of natural causes or a narrative conclusion.

The Court noted that the Claimant’s submissions in respect of Ground 1 had evolved from criticising the Coroner’s direction to consider natural causes “first”, to a broader submission that “accident” should also have been left to the jury on the basis of the incorrect insertion of the I-gel device may have hastened Ms Henshaw’s demise.

The Court described the question of whether natural causes should have been considered first as “entirely academic” in the circumstances of the case, on the basis that the jury had in reality returned a narrative conclusion (albeit within Box 3).

The Court also found that a conclusion of accidental death was “simply not realistic” in this case. Ms Henshaw’s chances of survival were already below 50%. The Court acknowledged that the incorrect I-gel insertion “may well have hastened” her death but found that it would “defy common sense” to conclude that that could have been “by more than very few minutes”. The impact was “no more than de minimis”. A conclusion of accidental death was thus “simply not realistic”.

In support of that conclusion, the Court cited the distinction drawn by Mr Justice Kay in R v Brimingham and Solihull Coroner Ex p. Benton, (1997) 162 JP 807 between cases where a person is suffering from a potentially fatal condition and medical intervention does no more than fail to prevent it, versus cases where someone suffering from a non-life-threatening condition undergoes medical treatment that causes their death.

Ground 2: Directions on What the Jury Could Find and Conclude

The Claimant also challenged the Coroner’s direction to the jury that the (admitted) failings regarding the ECG were not to form part of the findings. The Claimant contended that the Coroner had prevented the jury from reaching conclusions on central matters and from entering judgmental conclusions of a factual nature.

The Court was critical of Coroner’s approach, both in terms of style and substance, stating:

“I have to say that I do not think that the Defendant’s legal directions are particularly clear or easy to follow. They contain legal language and references that would make little or no sense to a jury”.

The Court also identified apparent contradictions in what the jury were directed to consider and not consider by the Coroner.

However, the Court also acknowledged that “this was a difficult case which would have challenged even the most experienced coroners”.

Importantly, the Court found that the Coroner had unlawfully fettered her discretion by failing to direct the jury that the missed 2018 ECG (an admitted failure) could be considered as a possible contributory factor to the death. The Court noted that the “causative potency” of the ECG omission was uncertain on the evidence, but found that the case fell within R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016] EWHC 1396 (Admin); principles, i.e. it was an admitted failing which “may” have had a causative impact.

The judgment includes an interesting analysis of those principles in light of the fresh guidance issued by the Chief Coroner in January 2025. The Chief Coroner’s interpretation of Tainton is not that admitted failings must be recorded in the Record of Inquest but that there is a power to do so in circumstances where that failing cannot be established on the evidence to have been causative. Mr Justice Jay found it was unnecessary to reach a definitive conclusion “on the issue of duty versus power” but noted that noted that there may be situations “where the power effectively translates into a duty because there is only one reasonable exercise of it in public law terms”.

No Fresh Inquest

Despite the errors identified by the Court, the Court was not satisfied that the Record of Inquest should be quashed and a fresh inquest held. Such a step was described as “as disproportionate as it is unnecessary”.

Mr Justice Jay found that the High Court’s judgment now “sets out the position very fully” and “no reasonable jury could reach more favourable conclusions from the Claimant’s perspective than I have done”. Declaratory relief was deemed sufficient in the circumstances.

Ground 3: The Coroner’s Decisions in Respect of the GP

Finally, the Claimant argued that the Coroner should have directed a relevant GP witness be called once it was discovered that the high priority warning had not been passed on to the prison.

The Court found there was “some force” in that submission and determined that the Coroner’s approach again amounted to a fetter of her own discretion.

However, the Court again declined to order a fresh inquest with regard to that error. In doing so, Mr Justice Jay found that nothing concrete was likely to emerge after such a long passage of time, the Court felt able to draw a “reasonably solid inference”  that the GP’s error was down to a breakdown in communication or systems, and there was a “lack of causative potency” in that omission.

Again, the Court cited the “benefit of this public judgment” in determining  that a fresh inquest was unnecessary.

KEY TAKEAWAYS

The judgment is a salutary lesson in the important of providing a clear and consistent summing-up and directions to the jury.

It is also an important endorsement of Tainton principles, and the ways in which a Coroner can improperly fetter their own discretion in the context of witnesses called and issues left to a jury in an Article 2 inquest.

However, it is also a vindication of pragmatism. Even where legal errors are identified and criticism abounds, a detailed, public judgment can be deemed to render a fresh inquest unnecessary in certain circumstances.