Vivienne W Gleave
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Whilst registered as a Physiotherapist:
1. You submitted a false invoice dated 23 March 2013 to WPA for the cost of physiotherapy treatment from former Colleague A which you did not receive for the following dates.
a. 19 March 2013;
b. 20 March 2013;
c. 21 March 2013;
d. 22 March 2013; and
e. 23 March 2013.
2. You submitted a false invoice dated 9 May 2014 to WPA for the cost of physiotherapy treatment from former Colleague A which you did not receive for the following dates.
a. 16 April 2014;
b. 18 April 2014;
c. 22 April 2014;
d. 24 April 2014;
e. 28 April 2014;
f. 30 April 2014;
g. 2 May 2014; and
h. 9 May 2014.
3. Your actions in paragraphs 1-2 were dishonest.
4. The matters described in paragraphs 1-3 constitute misconduct.
5. By reason of your misconduct you fitness to practise is impaired.
Background and preliminary matters
1.The Panel first considered an application to amend the Particulars of the Allega-tion. The effect of the amendment was to delete the word false in respect of Particular 1 and Particular 2 to prevent duplication. This issue is already dealt with in Particular 3, which relates to dishonesty and hence the amendment changes noth-ing of substance. There was no objection to the amendment of the Allegation and the Panel approved the amendment. The Allegation set out above is the amended Allegation.
2.The Panel also heard an application to hear certain parts of the hearing in private, having regard to matters pertaining to the Registrant’s health and private life. The application was granted, but the Panel was mindful of the open justice principal and was careful to return to a public hearing, once the particular issues which re-lated to the Registrant’s private and family life had been dealt with.
3.The Registrant is a private Physiotherapist. In the 2013-2014 period, her private practice included seeing private patients and undertaking contractual duties on behalf of the NHS. The Registrant had a self - employed Physiotherapist working for her in 2013 and an additional member of staff in 2014, whom she did joint as-sessments with and who undertook the treatments, when the Registrant felt una-ble to personally carry out the treatments, due to her health condition.
4.The Registrant had a private health care insurance policy with Western Provident Association Limited (WPA). She had held this policy since 1999. On 20 March 2013 the Registrant contacted WPA by telephone to seek approval to make a claim for physiotherapy treatment. The Registrant stated that her General Practitioner had referred her to a Physiotherapist following a shoulder injury, due to a slip on snow. The Registrant informed WPA that the physiotherapy would be provided by Witness 2. Thereafter, WPA authorised the Registrant to submit a claim for 8 ses-sions of physiotherapy. This was confirmed in a letter dated 20 March 2013 from WPA.
5.Witness 2 was a Physiotherapist who the Registrant had previously worked with in 3 different clinics between October 2010 and June 2012. The Registrant had pre-viously been Witness 2’s manager. Witness 2 had previously submitted invoices to the Registrant for the work she had completed at the clinics she had worked at.
6.Witness 2 has not provided physiotherapy treatment to the Registrant and had never provided her with an invoice for physiotherapy sessions allegedly provided to her. Witness 2 had only seen the Registrant on one occasion since June 2012, which was over a Christmas period during a horse event.
7.On the 23 March 2013, the Registrant made a claim to WPA purporting to be in respect of physiotherapy treatment which she had received from witness 2. This was in respect of the 5 dates in March 2013 which form Particular 1. The invoice was on headed note paper from Witness 2. The Registrant was subsequently re-imbursed in the sum of £325 on or around 10 April 2013.
8.The Registrant fabricated the invoice. She had not in fact attended physiotherapy sessions with Witness 2, on the dates submitted, or indeed any dates during 2013. She had not received an invoice from Witness 2, nor made any payment to her.
9.On 16 April 2014, the Registrant contacted WPA for a second time, seeking ap-proval to make a further claim for physiotherapy treatment. The Registrant told WPA that her GP had referred her to a Physiotherapist following a fall, and that she may have been suffering from pain in her left arm and neck. She stated that her GP had expressed the opinion that she was suffering from a trapped nerve. As a result, WPA authorised the Registrant to submit claims for payment of a further 8 sessions of physiotherapy treatment with Witness 2. This was confirmed in a letter dated 16 April 2014.
10.On 9 May 2014, the Registrant made a second claim, this time for 8 sessions of physiotherapy treatment, purportedly undertaken by Witness 2. This was in respect of the dates in April and May 2014 that form Particular 2. The amount claimed was £500. The invoice submitted created the impression the treatment had been pro-vided by Witness 2, also being on headed notepaper.
11.The Registrant fabricated the second invoice. She had not attended physiotherapy sessions with Witness 2 on the dates claimed in April-May 2014, or indeed for any treatment during this period. She had not received an invoice from Witness 2 and had made no payment to Witness 2.
12.As part of the validation process for the reimbursement of monies. WPA sought proof of payment of the monies in the first invoice by the Registrant to Witness 2. This is evident from an email dated the 4 June 2014. The Registrant did not reply. There is a file note from WPA detailing a conversation with Witness 2, dated the 4th June, in which she confirms that she had not seen the Registrant “for the last 3 years and has not received any payment into her bank account.”
13.On 19 June 2014, WPA sent a further email to the Registrant in which they in-formed her that they had contacted Witness 2 and were now seeking the reim-bursement of the £325 which they had previously paid out.
14.The Registrant replied on 19 June 2014 apologising for “not adhering to the correct protocol of WPA”.
15.On 5 September 2013, the Registrant reimbursed the £325 that had been paid in respect of the March 2013 invoice.
16.The Registrant’s WPA policy was thereafter cancelled and Witness 1 referred the Registrant to the HCPC on the 10 September 2014.
17.The Panel has seen witness statements from:
(a) Witness 1, Head of Provider Services at WPA,
(b) Witness 2, Registered Physiotherapist,
(c) The Registrant,
(d) PW, Registered Physiotherapist.
18.The Panel did not hear live oral evidence from Witness 1 and Witness 2, as the facts of this case are largely not in dispute. The Panel has seen an agreed state-ment of facts. The Registrant, however, did give oral evidence and was subject to cross-examination.
19.In addition, PW gave evidence by telephone to confirm the contents of her witness statement.
20.The Registrant is now working part time in private practice and employs newly qualified Band 5 Physiotherapists and supports them with in-house Continuing Professional Development to give them the experience needed to apply for posi-tions in the NHS.
21.The Panel has seen a bundle provided by the HCPC which runs to 43 pages and a bundle of documents from the Registrant, along with an expert medical report from Dr Cullen on behalf of the Registrant.
22.The Panel has heard and accepted the Legal Assessor’s advice and has exercised the principle of proportionality at all times. In approaching the task of deciding the facts, the Panel has kept at the forefront of its deliberations, the importance of requiring the HCPC to prove matters against the Registrant. The standard of proof to which the HCPC is required to prove matters is the civil standard – on the balance of probabilities.
Decision on Facts
Particular 1 Proved
23.The Panel finds that Particular 1 proved. The Registrant admitted the allegation as is apparent from the agreed statement of facts and as is further set out in her wit-ness statement.
Particular 2 Proved
24.The Panel finds that Particular 2 proved. The Registrant admitted the allegation as is apparent from the agreed statement of facts and as is further set out in her wit-ness statement.
Particular 3 Proved
25.The Panel had to consider whether the Registrant’s actions amounted to dishon-esty. The HCPC case is that the Registrant was dishonest in creating invoices for physiotherapy treatment which she had not in fact received. The Registrant’s case is that she did not know at the time that her actions would be regarded as dishon-est, due to her health condition, and that the legal definition of dishonesty has not been made out.
26.The Registrant’s evidence as contained in her witness statement was that she suf-fers from chronic pain and that she decided to use her insurance policy to “help me overcome the acute flare up of my chronic pain but incorrectly named the wrong physiotherapist providing the treatment”. The Registrant states that the treatment was in fact provided by another physiotherapist PW, who is both a friend and a col-league.
27.The Registrant alleged that PW provided treatment on all the dates in question in these proceedings, and she stated in her witness statement that she could not re-call asking for a receipt. She adds: “I can only think that such an error was due to the medication I was taking for [a health condition], the sudden worsening of my health condition and worry I was feeling at the time. I just couldn’t think straight and made a mistake based on the view that I was making an administrative error and not one which was intentionally designed to defraud the company in any way. I did not bene-fit financially from the claim as I had already paid for treatment, and it was done mistakenly and at a time when I was vulnerable to making poor decisions”. [redact-ed quote].
28.The Registrant further stated: “At no point was I being intentionally fraudulent but I recognise that this was bad practice and have taken steps to ensure that I never make a similar mistake again…I recognise that I should have sought treatment from a practitioner in a different practice and followed the correct administrative pro-tocol of the insurance company.”
29.The Panel has seen a witness statement from PW. She gave evidence by tele-phone only to confirm the contents of her statement were true. The statement was short and rather vague. PW confirmed that she had provided the Registrant with treatment for back and neck problems, which appeared to be connected with stress. She was unable to recall the events of 2013 or 2014 and simply said that “I will have provided Vivienne with sessions of physiotherapy for her personal treat-ments.” She added that she was paid a percentage of an hourly rate but provided no further details as to the amounts she was paid or the method of payment.
30. In oral evidence, the Registrant stated that she thought she would be able to obtain physiotherapy from Witness 2, but PW came to assist the Registrant in undertaking some relief work in her private practice. The Registrant asked PW to provide treatment, knowing she was not registered with WPA. She thought she would be able to get PW registered, but that this would take another telephone call which would be too much for her, given her state of health. She did not think she was be-ing dishonest, as she had in fact received the treatment, albeit not from Witness 2. She did however state that she was “very ashamed of her actions.”
31.The Registrant’s evidence was initially simply that she had paid PW and not Wit-ness 2. The Registrant had an historic invoice template on her computer from Witness 2, from when she had previously worked with her, and amended the details, to put in the dates for the 2013 treatment. She was unable to explain how she arrived at an invoice number of 001/VG/JA.
32.The Registrant accepted that some effort was required on her part to create this invoice, and she did this in her own time, during a period in which she was unwell. She explained that this was not logical, but was able to do this, whereas she felt unable to ring WPA regarding PW’s registration and/or authorisation to undertake the physiotherapy.
33.The Panel has not been provided with any documentation to support the payments to PW. The Registrant says that the monies were paid in wages to PW in cash. The Registrant told the Panel that she had been subsequently advised by her account-ant not to do this, following a tax investigation relating to her horse breeding business.
34.The Registrant also confirmed that she had to create a new template for the 9 May 2014 invoice, which she had done on a laptop and, that this had involved some work on her part. No invoices to support work done by PW in either 2013 or 2014 have been disclosed.
35.However, the Registrant has provided a letter dated 26 September 2016 from PW. This states: “Mrs Vivienne Gleave had 5 sessions of physiotherapy during March 2016.” The Registrant maintained that in fact there was a typographical error and this should relate to March 2013. She was unable to explain why there is no refer-ence to the 2014 treatment, save for the vague reference to treatment being provided informally, and the notes of the treatment being “not good.” PW’s witness statement did not address these issues.
36.In answers to questions from the Panel, the Registrant admitted that in fact she had only paid PW 50% of the rate she had claimed back from WPA - arguing this was standard practice, when sub-contracted staff see patients, as the remainder re-flected the costs to her business. Hence, in fact the sum of £325 and £500 claimed and stated to have been either “paid in full” or “received with thanks”, sent to WPA purporting to come from Witness 2, were inaccurate as to both the provider of the treatment and also the amounts which had allegedly been received.
37.The Registrant could not recall whether the £325 was paid directly by WPA into her business or personal bank account, nor which account she reimbursed the money from.
38.The Panel has seen the Registrant’s medical records. There is no record of any referral in March 2013 by the Registrant’s GP in the records following a fall, caus-ing a flare up of a pre-existing health condition. When being cross-examined, the Registrant stated that she had had a conversation with her GP about this on the telephone. However, she was unable to explain why this did not appear in her medical records.
39.In addition, there is no reference in the Registrant’s GP records to a referral from her GP for physiotherapy in April 2014. The Registrant was unable to explain this, save to say she had issues with her medical records. The treatment was supposed to be in relation to the Registrant’s left arm and neck, but her health condition ap-pears to relate to her lower limb and pelvis, according to the Registrant’s witness statement.
40.The Registrant was unable to explain, in evidence why she did not admit to WPA that in fact she had received treatment, albeit from PW and not Witness 2, when challenged to provide proof of payment. At no stage did the Registrant tell WPA that she had received treatment from PW. She simply reiterated that as she had re-ceived the treatment, she did not regard her actions as fraudulent. She chose to re-fund the monies, as opposed to providing WPA with evidence that she had paid for the treatment, or contacting PW to obtain corroborating evidence of pay-ment.
41.The Registrant maintained in evidence that PW could have got on the WPA regis-ter, and that it was not closed.
42.The Panel also had regard to the medical report which has been obtained by the Registrant from Dr Cullen, Consultant Psychiatrist, dated 9 November 2016. The report makes the following relevant points:
a. At the time, the Registrant did not think that what she did was fraud,
b. Her treating Physiotherapist PW was working for her at the time and she said that PW told her that she could not register with the WPA as it was closed to new registrations,
c. The WPA subsequently contacted the HCPC after the second invoice was submitted. The Registrant thought “what have I done?” and that “I’ve done wrong”. She said it was a “stupid thing to do.”
d. He states that it is conceivable that she had a health condition at the time of the alleged incidents and was taking medication. There is evidence that her judgment was impaired from medical records from December 2014, and that the position would not have been dissimilar in 2013. He concludes that “it is also conceivable that her judgement was impaired by regular use of pain-killers and potentially sedative medications prescribed for her [health condi-tion].”
e. He does not believe that the Registrant would make further errors going forward as her health condition is stable, but he does concede that a relapse would have the potential to affect her mental faculties.
43.The Panel had regard to the Legal Assessor’s advice on the issue of dishonesty and in particular the guidance in Bryant and Bench v Law Society  EWHC 3043), R v Ghosh (1982) 75 CR App R 154) and Twinsectra v Yardley  A AC164, as modified in Hussein v GMC  EWCA 2046 as confirmed in Kirschner v General Dental Council  EWHC 1377 (Admin).
44.The Panel has applied the 2 stage test, in reaching its conclusions:
f. Whether on the balance of probabilities, would the Registrant’s actions be deemed to be dishonest by the ordinary standards of reasonable honest people?
g. If so, did the Registrant know that, by those standards (rather the Registrant’s own standards) her actions would be regarded as dishonest?
45.The Panel, applying this test, concluded that the Registrant’s actions did amount to dishonesty, finding both limbs proved on the balance of probabilities. In particu-lar, the Panel concluded that the Registrant did know, at the time, that her actions would be regarded as dishonest by the standards of ordinary reasonable honest people.
46.The Panel accepted the medical evidence from Dr Cullen that at the time the Registrant may well have had a health condition which could have affected her judgement. However, the Panel notes from the Registrant’s medical records that she is recorded on the 15 March 2013 as being “much calmer” and was starting to work again. A letter from Dr Bargiotas, Locus Consultant Psychiatrist, dated the 15 April 2013, but referring to a clinic appointment on the 5 April 2013, confirms that the Registrant had returned to work 2 days per week as a Physiotherapist which she found helpful. The Panel concluded that if Registrant’s health allowed her to resume running her own physiotherapy business, she had meaningful insight into her actions and the consequences of the same.
47.The Panel’s view was that the Registrant’s evidence on the issue of dishonesty was unsatisfactory and did not find her account credible. This was because of the large number of inconsistencies as set out above, which undermined the assertion that she did not know her actions would be regarded as dishonest. The factors which were of particular concern to the Panel were:
a) The lack of referral evidence from the GP for physiotherapy in 2013 and 2014,
b) The inconsistency as to what condition was to be treated by the Physiotherapist,
c) On the Registrant’s own account, she sought to deceive WPA by obtaining monies for treatment which was not provided by a registered provider, and gave inconsistent evidence on whether the register was open or closed,
d)The preparation and submission of fabricated invoices occurred on two occasions over a year apart and both required a degree of pre-meditation, as the process involved telephoning WPA for authorisation prior to creating and submitting the invoices,
e) The Panel did not accept the Registrant’s contention that she was too un-well to telephone WPA to confirm PW’s registration, but was nevertheless able to create false invoices, given all the work this involved,
f) There is no explanation as to why the Registrant did not tell WPA about PW when asked for proof of payment, if she regarded her actions as being noth-ing more than an administrative oversight,
g) The Registrant claimed, in her witness statement, that she did not benefit from the claim, as she had already paid for the treatment and was only seek-ing reimbursement. This is inconsistent with her oral evidence, in which she accepted that 50% of the £325 paid and the £500 claimed, either had or would have gone directly into her business. The invoices are therefore both misleading as to the provider and the sum claimed and amount to evidence of direct financial benefit.
h) The Panel’s view was that there is a significant difference between paying a sub-contractor a percentage payment per treatment, to cover business overheads, and a claim being made by the proprietor of that business, direct-ly to her own private health insurer, for monies allegedly paid in full to an independent third party. This work was in fact being carried out on an in-formal basis by a friend, within her business, who has been paid in cash, at less than the value on the invoice claimed. There is a direct financial con-flict of interest between the Registrant and WPA, of which the Registrant was clearly aware, as she conceded in evidence on this point: “oh that’s dishonest too”. i) The evidence from PW was vague and did not address any of the concerns set out above. In particular, there was no clarification provided as to the “To whom it may concern” letter dated 22 September 2016 from PW. There is no explanation from PW as to why this document referred to 2016 and not 2013 and why it did not also refer to the 2014 treatment. There is no reference to payment sums received, nor the method of payment to corroborate the Registrant’s version of events.
j) The Panel rejected the Registrant’s witness evidence to the effect that she cannot recall asking PW for a receipt for treatment, due to an error caused by medication she was taking. This is wholly inconsistent with the Regis-trant’s oral evidence, namely that a receipt was never going to be required, as the treatment was provided informally, in her own business, paid in cash with minimal, if any, clinical record made, as if the Registrant was simply another patient in her own business.
Decision on Misconduct and or Lack of Competence
48.The Panel considered whether the Registrant’s actions amounted to misconduct, that is, conduct falling well below a reasonable professional standard for a Physiotherapist, and what would be proper in the circumstances. The Panel concluded that they did, having regard to the totality of its findings, including its findings on the dishonesty issue as set out above.
49.The Panel also concluded that the Registrant is in breach of the following Stand-ards of Conduct, Performance and Ethics:
•Standard 3: You must keep high standards of personal conduct,
•Standard 13: You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
Decision on Impairment
1.The Panel then had to consider whether the Registrant’s fitness to practise is cur-rently impaired, in light of the HCPC practice note on impairment.
2.The Panel is mindful of the forward looking test for impairment. The question is whether the Registrant’s current fitness to practise is impaired, with a view to protect-ing service users and the public interest.
3.The Panel, after reviewing all the evidence in this case, considering the submis-sions from the parties, and accepting the advice from the Legal Assessor, has con-cluded that the Registrant’s current fitness to practise is impaired, with regard to both the personal and public components. The Panel relied on the following matters:
a. The Panel first considered the extent to which the Registrant had remedied the misconduct which it had found proved, and concluded that it is very dif-ficult to remediate dishonesty. This was exacerbated by the fact that the Registrant did not admit dishonesty in these proceedings, and maintained in her evidence that she was not aware that her actions would be regarded as amounting to dishonesty.
b. The Panel accepted that the Registrant has had a long and previously unblemished career, and that there have been no similar events since 2014. However, this has to be set against the context of the Allegation, which re-lates to two separate incidents of dishonesty, a year apart, both requiring a degree of premeditation.
c. The Panel did accept that the Registrant has made some changes to her practice since the 2013/2014 period. She gave evidence she would stop work if her health condition returned; she was seeing a therapist regularly; she had a good relationship with her new General Practitioner; she had friends who would tell her if her weight was varying; she now only works part time and has spent time working with a colleague in Cornwall to ensure she was safe to practise. The Panel also heard evidence from her that the previous stressful events surrounding her family and personal circumstanc-es had now improved significantly.
d. The Panel noted that the Registrant’s health condition is such that there is a risk of future relapse, as set out in the medical evidence from Dr Cullen and the letter from Dr Amies.
e. Given the significant and, in the Panel’s view, at times alarming,inconsistences within the Registrant’s evidence, both written and oral, the Panel could not rely to any significant extent on the Registrant’s limited statements regarding her insight into the seriousness of her conduct. Her inability to accept, and understand, even at this late stage, the difference between dishonesty, and an error of judgement which might be caused or exacerbated by a health condition, demonstrated that there remains a significant risk of repetition.
f. The Panel concluded that there was insufficient evidence of appropriate in-sight and or reflection, given the very serious nature of the Allegation which has been found proved. The Panel therefore concluded that the Regis-trant’s fitness to practise is impaired having regard to the personal compo-nent of impairment.
g. The conduct of the Registrant was such as to damage public confidence in profession and bring the profession into disrepute.
h. The Panel further concluded that, through her dishonest conduct, the Registrant had breached a fundamental tenet of the profession of being a Physiotherapist;
i. The Panel also had regard to the need to protect the public and to uphold the proper standards of behaviour, and this regulatory process, in conclud-ing that the public component of impairment is clearly established.
Decision on Sanction
1.The Panel has heard submissions on sanction on behalf of the HCPC and the Regis-trant. It has paid regard to the HCPC’s Indicative Sanctions Policy and has accepted the advice of the Legal Assessor.
2.The Panel considered the mitigating circumstances of the case:
• There is evidence that the Registrant had both a physical and mental health condition and had some significant family problems at the time of the misconduct;
• There is evidence that the Registrant had other personal problems including debts and a tax investigation into an associated business;
• The Registrant has had a previously unblemished career and is a competent Physiotherapist. The Panel had regard to the testimonial evidence from Dr Simon Plint and Dr Karen Taylor;
• There would be significant financial and career implications for the Registrant if she was unable to continue to work as a Physiotherapist.
3.The Panel also considered the aggravating features of this case:
•There were 2 separate findings of dishonesty, over 12 months apart, involving the fabrication of invoices which led to an element of financial gain. The mis-conduct is therefore very serious;
•The Registrant is a highly experienced Physiotherapist who had run her own business for 20 years, and would have been aware of the requirement for honesty and integrity when dealing with insurance companies;
•The Panel has found limited evidence of insight and remediation.
4.The Panel has carefully considered what type of order should be imposed, start-ing with the least restrictive order. It has taken into account the principle of proportionality, and balanced the rights of the public and the rights of the Regis-trant to practise in her chosen profession.
5.The Panel concluded that public confidence in the profession would be under-mined by taking no action, imposing a caution order, or a conditions of practice order, given the serious findings of misconduct and dishonesty it has made. The Panel further concluded that it would not be in the public interest to impose a cau-tion order, or a conditions of practice order, and that neither order would not have the effect of maintaining public confidence in the profession.
6.The Panel next considered a suspension order and concluded that this was not appropriate. The Indicative Sanctions Policy states that a suspension order is an appropriate order where the allegation is of a serious nature, but is unlikely to be repeated. The Panel has previously concluded that there was limited evidence of insight and there remained a risk of future repetition. The Panel concluded that the Registrant’s dishonesty was very difficult for her to remedy in the future and hence a suspension order was not appropriate.
7.The Panel further concluded that given the serious nature of the dishonesty, to impose a suspension order would not adequately retain confidence in the Physiotherapy profession. The public expect that Physiotherapists will be hon-est and trustworthy. The Panel concluded that a suspension order would not pro-vide the appropriate level of deterrent required, given the findings of dishonesty in this case.
8.The Panel therefore, having eliminated all other sanctions, concluded that the appropriate sanction in this case was a striking off order. The Panel noted the Indicative Sanctions Policy states that a striking off order is a sanction of last re-sort for serious, deliberate or reckless acts involving abuse of trust such as dis-honesty and concluded that the present case fitted into this category.
9. The Panel is aware of the very serious implications of a striking off order on the Registrant, given the financial, reputational and career implications for her. How-ever, the Panel has reminded itself that it has to have regard to proportionality and whilst the purpose of any sanction is not to punish the Registrant, it nevertheless has a duty to impose appropriate sanctions in order to protect the public and to uphold the reputation of the profession and the regulatory process.
10. In this instance, the public interest considerations, including upholding the reputation of the profession, the need to have a deterrent effect on registrants and the need to uphold public confidence in the regulatory process, are more im-portant than the right of the Registrant to continue to practice. In the light of the findings made by the Panel, of very serious misconduct and dishonesty on two separate occasions, and the Registrant’s limited insight, a striking off order is the only appropriate and proportionate sanction.
History of Hearings for Vivienne W Gleave
|Date||Panel||Hearing type||Outcomes / Status|
|21/11/2016||Conduct and Competence Committee||Final Hearing||Struck off|