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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 <strong>document</strong> 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 2
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 3
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Page 5: judgement in the future. As a resul

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