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FITNESS TO PRACTISE PANEL
12 - 13 JUNE 2012
7th Floor, St James’s Buildings, 79 Oxford Street, Manchester, M1 6FQ
Name of Respondent Doctor: Dr Tim BRIER
Registered Qualifications: MB BS 2010 Kings College London
Area of Registered Address: London
Reference Number: 7086629
Type of Case: New case of impairment by reason of:
misconduct
Panel Members: Professor S Miller, Chairman (Lay)
Dr J Owen-Jones (Medical)
Mr J Black (Lay)
Legal Assessor: Mr A Reid
Secretary to the Panel: Ms L Astley
Representation:
GMC: Mr Ciaran Rankin, Counsel, instructed by GMC Legal
Doctor: Dr Brier is present and represented by Mr Jeremy Hyam, Counsel, instructed
by Berrymans Lace Mawer.
ALLEGATION
The Panel will inquire into the following allegation against Dr Tim Brier,
MB BS 2010 Kings College London
“That being registered under the Medical Act 1983, as amended:
1. On 7 October 2010 you:
a. Made an inappropriate and unauthorised entry onto Patient A’s
clinical notes and,
Admitted and found proved
b. Entered an inappropriate and unauthorised prescription onto
Patient A’s drug chart;
Admitted and found proved
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And that by reason of the matters set out above your fitness to practise
is impaired because of your misconduct.”
Determination on Rule 17(2)(g) application
Mr Hyam:
You have made an application on behalf of Dr Brier under Rule 17 (2) (g) of the
General Medical Council (Fitness to Practise) Rules 2004 (the Rules) that insufficient
evidence has been adduced to support a finding of impairment.
You referred the Panel to the judgment of Lane LCJ in the criminal case of R v
Galbraith [1981] 2 All ER 1039. His Lordship stated:
Where the judge comes to the conclusion that the Crown evidence, taken at
its highest, is such that a jury properly directed could not properly convict on it,
it is his duty, on a submission being made, to stop the case.
You submitted that it was appropriate to apply that approach to the current
application, and that the evidence adduced in this case was such that, taken at its
highest, a properly advised panel could not properly conclude that Dr Brier’s Fitness
to practise is impaired by reason of his misconduct.
You referred the panel to the cases of Calhaem [2007] EWHC 2606 (Admin),
Cheatle [2009] EWHC 645 (Admin)and Nandi [2004] EWHC 2317 (Admin) and
submitted that a properly advised panel would first be required to consider whether
the matters found proved were sufficiently serious as to amount to misconduct for
the purposes of impairment. You submitted that to be so serious they would have to
be regarded as deplorable by other practitioners, and that the matters found proved
in this case fall below that threshold. Accordingly, a properly advised panel would
find that there was no misconduct and would not proceed further.
You submitted that even if a panel were to conclude that the matters found proved
were of sufficient seriousness as to constitute misconduct, and were therefore to
proceed further, there was insufficient evidence to support a finding of impairment by
reason of that misconduct. You reminded the panel that Dr Brier had admitted the
matters concerned, that they were part of an isolated incident, that no patient had
been put at risk, that evidence had been adduced that the Doctor had reflected on
his wrongdoing and that it was most unlikely to be repeated.
Mr Rankin, on behalf of the GMC, opposed your application on the ground that the
evidence adduced is sufficient to support a finding of impairment. On the issue of
seriousness, he reminded the panel that Dr Brier had admitted making inappropriate
and unauthorised entries on the clinical notes and drug chart of a patient for whom
he had no clinical responsibility. His actions were in breach of the GMC publication
Good Medical Practice and of Section 6 c) of the GMC guidance document The New
Doctor. Mr Rankin submitted that the evidence was such that a properly advised
panel could properly find those actions to be sufficiently serious as to constitute
misconduct for current purposes and that sufficient evidence had been adduced to
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enable such a panel properly to conclude Dr Brier’s fitness to practise is impaired by
reason of his misconduct. Further, Mr Rankin submitted that such a panel would also
be required to consider the need to declare and uphold proper standards of conduct
and behaviour so as to maintain public confidence in the profession. He said a panel
could properly conclude that a finding of impairment was required in order to meet
that need.
The Panel has accepted the advice of the Legal Assessor. He referred the panel to
the cases of Cheatle, Remedy, Cohen and Grant. He advised that a properly advised
panel would be required to first consider whether the matters found proved were
sufficiently serious that they could properly be described as misconduct going to
fitness to practise. Only if such a panel concluded that they were, should it go on to
consider whether by reason of that misconduct Dr Brier’s fitness to practise is
impaired. The Legal Assessor advised that in reaching its decision on the second
question such a panel would be required to look forward and consider whether the
Doctor is likely to repeat his misconduct. To this end it should consider whether and
to what extent it had received evidence of insight and remediation on the part of the
doctor.
In addition, the Legal Assessor advised that even if such a panel concluded that
there was no future risk it would, as Mr Rankin had submitted, be required to ask
itself, in light of the evidence adduced, whether the need to uphold proper
professional standards and public confidence in the profession would be undermined
if a finding of impairment of fitness to practise were not made in the circumstances of
this case. If it concluded that that need would be undermined then that panel would
be required to make a finding of impairment.
The facts of this case relate to entries made by Dr Brier on 7 October 2010 into the
case notes and drug chart of Patient A, an elderly relative of Dr Brier who was being
treated at the Eastbourne District General Hospital. The entry in the case notes
asked the staff responsible for the care of Patient A whether they would provide a
brief report either to Dr Brier or to another relative once Patient A’s condition had
become clearer. The entry in the drug chart would have had the effect of changing
the regime for the administration of a particular drug, senna, a laxative, from an ‘as
required’ dose to a ‘regular’ dose; in the event, the hospital staff did not act on
Dr Brier’s entry.
At the time of these events Dr Brier was neither responsible for the care of Patient A,
nor was he employed by the Hospital in which she was being treated. Accordingly
Dr Brier has admitted, and the Panel has found proved, that his actions in making
these entries were inappropriate and unauthorised.
In determining whether sufficient evidence has been adduced to allow a panel,
properly advised, to find Dr Brier’s Fitness to Practice impaired, the Panel first
considered the issue of misconduct.
In relation to Paragraph 1a, the Panel noted that Dr Brier’s entry into Patient A’s
clinical notes consisted simply of a note requesting hospital staff to contact the
patient’s relatives when more information was available; the entry made no
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comments or suggestions about Patient A’s treatment, nor did it raise any clinical
issues. For this reason, the Panel has concluded that, viewed in isolation, a panel
considering this matter could not properly regard the entry as a sufficiently serious
breach of standards to support a finding of misconduct.
In relation to Paragraph 1b concerning Dr Brier’s unauthorised entry in Patient A’s
drug chart, the Panel took account of the following guidance:-
The New Doctor (2009) at Paragraph 6 states:
“Good clinical care
F1 doctors must:
(a) demonstrate that they recognise personal and professional
limits, and ask for help from senior colleagues…….when necessary.
(b) know about and follow our guidance on the principles of Good
Medical Practice and the standards of competence, care and conduct
expected of doctors registered with the GMC.
(c) demonstrate that they are taking increasing responsibility, under
supervision and with appropriate discussion with colleagues, for patient
care, putting the patient at the centre of their practice by:
…
(ix) using medicines safely and effectively (under supervision)
including giving a clear explanation to patients”
Good Medical Practice (GMP) at Paragraph 5 states that:
“Wherever possible, you should avoid providing medical care to anyone with
whom you have a close personal relationship”
This Panel considers that it would be open to a panel to conclude that Dr Brier’s
conduct is in breach of all of the above guidelines. In particular, the Panel was
concerned that Dr Brier appeared not to have recognised the impropriety involved in
altering the prescription of a patient for whom he was not responsible. This was
done despite Dr Brier having no formal standing within the East Sussex Hospitals
NHS Trust where Patient A was being treated and without the agreement of the
clinicians in charge of the patient. The Panel is satisfied that a panel, properly
advised, could find this action sufficiently serious to amount to misconduct.
The Panel then went on to consider whether this misconduct could properly form the
basis of a finding of impairment. In so doing, it has taken account of the agreed
witness statement of Mr B, Director of Medical Education at Barnet and Chase Farm
Hospitals NHS Trust (Dr Brier’s employers). Mr B stated that he had discussed the
allegations with Dr Brier and that, in his opinion, Dr Brier had genuinely reflected on
the inappropriateness of his behaviour and was unlikely to make similar errors of
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judgement in the future. As a result, the Trust had not considered it appropriate to
limit Dr Brier’s activities or responsibilities in the remainder of his F1 post.
The Panel has also borne in mind that the errors of judgement in this case arise from
a single incident and that Dr Brier has accepted from an early stage that his actions
were inappropriate and admitted all charges against him. The Panel considered that,
on the basis of the evidence adduced, a panel would be bound to conclude that his
misconduct had been remediated, that Dr Brier had insight into the matters at issue,
and that there was no significant risk of repetition.
However, notwithstanding the issue of remediation, the Panel recognises that before
reaching a decision of no impairment, a panel considering the matter would need to
take account of the requirement to protect the public interest. This includes not only
the protection of patients, but also the maintenance of public confidence in the
profession, and the declaring and upholding of proper standards of conduct and
behaviour. In this respect, the Panel has been guided by paragraph 101 in the
judgement of Cox J in the case of Grant [2011] EWHC 927 (Admin) which states:-
The Committee should therefore have asked themselves not only whether the
Registrant continued to present a risk to members of the public, but whether the
need to uphold proper professional standards and public confidence in the
Registrant and in the profession would be undermined if a finding of impairment
of fitness to practise were not made in the circumstances of this case. “
In considering this question, the Panel has borne in mind the following factors: that at
the time of these events Dr Brier was a young and relatively inexperienced doctor
seeking to assist an elderly patient; that he communicated precisely what he had
done to the relevant parties (albeit that they were inappropriate and unauthorised);
that there were no harmful consequences of his actions. Given also the evidence on
insight and remediation, and the fact that Dr Brier’s actions did not involve
dishonesty or abuse of trust, the Panel considers that a panel could not properly
conclude that the public interest would be undermined by a finding of no impairment.
In all the circumstances therefore the Panel is satisfied that, taken at its highest, the
evidence adduced by the GMC could not lead a panel to conclude that Dr Brier’s
fitness to practice is impaired by reason of his misconduct. Accordingly, the Panel
has acceded to your application under Rule 17(2)(g) that there is no case to answer.
Confirmed
Date: Chairman
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