Vivienne Gleave

This is an adjourned hearing of an application by the Applicant for restoration to the Register. This application began on 29 November 2022 and was adjourned so that the Applicant could obtain further evidence to put before the Panel.

Preliminary matters
Proceeding in Private
1. Ms Welsh, Presenting Officer on behalf of the HCPC, applied for part of the hearing to be conducted in private in order to protect the private life of Mrs Vivienne Gleave (the Applicant) as the hearing might involve matters relating to the Applicant's health and her family life. The Applicant supported the application.

2. In reaching its decision, the Panel has taken note of the HCPTS Practice Note on ‘Conducting Hearings in Private’. It has also received and accepted legal advice.

3. The Panel reminded itself that it had granted this application when the case was last before the Panel. The Panel is satisfied that issues regarding the Applicant's health and private family life might arise in the course of the hearing. In these circumstances, the Panel has decided that it is in the interests of justice that those parts of the hearing which relate to the Applicant's health and family life should be conducted in private to safeguard the Registrant’s private life. The rest of the hearing will be conducted in public.

Background
4. At the first hearing of this application, Ms Khorassani set out the background to this application and the circumstances that gave rise to the Applicant being struck off the Register. Those facts are not disputed and can be summarised as follows.

5. At a hearing which took place between 21 and 23 November 2016 a panel of the Conduct and Competence Committee (the Substantive Hearing panel) found the following Allegation proved against the Applicant.
Whilst registered as a Physiotherapist:
1. You submitted an 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 an 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 May2014.

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(r) fitness to practise is impaired.

6. On 23 November 2016 the Substantive Hearing panel found the Applicant’s fitness to practise impaired and imposed a Striking Off Order.

7. The facts giving rise to that order can be summarised as follows. The Applicant was first registered with the HCPC on 14 December 1977. In 2013 and 2014 she was a physiotherapist in private practice who undertook work for the NHS as well as seeing private patients. The Applicant had private healthcare insurance with a company called Western Provident Association Limited (WPA).

8. In March 2013 the Applicant submitted a claim to WPA for five sessions of physiotherapy which she claimed had been recommended by her General Practitioner for a shoulder injury caused by falling on the snow. Subsequently, in May 2014 the Applicant made a second claim for eight sessions of physiotherapy treatment, which she claimed were necessitated by a fall resulting in pain in her left arm and neck.

9. In neither case did the Applicant have any physiotherapy. In respect to both claims the Applicant created false invoices purporting to show that a colleague had provided her with physiotherapy. The Applicant received £325 in respect of the first claim and £500 in respect of the second.

10. The deception was discovered when WBA carried out their own enquires into the payments.

11. At the hearing, the Applicant admitted making the claims but denied being dishonest, in part because of her health at the time. When finding the Applicant’s fitness to practise impaired the panel found that the Applicant had demonstrated little insight, in large part because of “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.”

12. When imposing a Striking Off Order the panel observed:
• 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 misconduct 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.

13. It concluded that, “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 important than the right of the Registrant to continue to practice.”

This application for restoration
14. The Applicant applied for restoration in writing on 16 January 2022.

15. The Applicant gave evidence to the Panel at the hearing on 29 November 2022 and concluded her evidence today. She drew the Panel’s attention to a number of documents which the Panel refers to below.

16. In her personal statement, written on 16 January 2022, and in her oral evidence the Applicant told the Panel that she fully “accepted the decision of the first tribunal and the reasons given and said that with the benefit of skilled intervention, although still very ashamed of my actions, I have been able to scrutinise and work on the issues that led me to fall so below the standards of the HCPC.”

17. The Applicant told the Panel that shortly after the decision of the substantive panel she volunteered as a “peer support worker”, and then secured part time work in the Oxfordshire NHS working with psychiatric patients.

18. She told the Panel that she was well supervised at work by people who would see if she was becoming overwhelmed.

19. She explained to the Panel that she understood how her actions had undermined public confidence and betrayed the trust of her colleagues.

20. The Panel had regard to the following documents put before it by the Applicant:
a. Dr T who had known the Applicant since 2008, spoke highly of the work she had done and concluded that the Applicant “has studied hard to become a psychiatric assistant in an acute mental health facility, her training enable[d] her to understand patience and support them in their attempts to return to improved mental health. She is also instrumental in maintaining a weekly tennis session for psychologically damaged individuals which not only enables them to get fresh air and exercise but promotes social interaction and friendly competition in a safe and therapeutic environment.” Dr T expressed confidence that the Applicant would not “transgress” again and concluded that “not to re-admit her deprives the community of much needed expertise”
b. JE the volunteer coordinator at Oxfordshire Mind who wrote: “I have found her to have a strong sense of self-awareness and a desire to keep learning and seeking new goals. Whilst participating in the Peer Supporter training as a co-trainer- Vivienne was always punctual and professional, and absolutely felt like a safe pair of hands in supporting and managing the group. She strikes me as a good judge of character and has been a valued and respected member of our volunteer group for her honesty. her warm manner, empathetic nature, humour and sensitivity.”
c. CP, Senior Peer Support Coordinator at Oxford Health NHS foundation trust. She confirmed that the Applicant had undertaken peer support worker training at the Trust between January and April 2020 for a period of 10 days. She set out the areas covered and added that the Applicant had also completed a 30 hour placement within a team in the Trust from September 2020 over a four to six week period. She concluded that the Applicant had “become Band 3 paid Peer Support Worker at Vaughan Thomas Ward, Warneford Hospital in 2021 and continues to work there day a week.”

21. The Panel also saw the documentation relating to the study and supervised practice the Applicant had undertaken. It noted in particular a letter dated 24 February 2023 from PW, a registered chartered physiotherapist, who confirmed that the Applicant had completed 30 days of supervised practice between September 2021 and December 2021. She set out in detail the work that had been completed and concluded that the Applicant “presented well and was reliable and very competent. She was keen to work within the range of her previous experience. She has good communication skills and put patients immediately at ease. Her history and assessment taking was exemplary, explaining any misunderstanding they had regarding medications and a deep knowledge of presenting conditions. This was done with professionalism and an ability to help patients to understand at a layman’s level of understanding. She was able to plan a patient centred treatment protocol for their needs and lifestyle.”

Submissions
22. The Applicant accepted that it was hard to remediate dishonesty but repeated that she felt ashamed of how she had behaved and was able to admit the health issues that were associated with her misconduct. She reminded the Panel that she wished to work as a physiotherapist with older patients and psychiatric patients for whom provision was inadequate. She reminded the panel of the evidence she had given about possible employers with whom she had established contact and whose response had been favourable. She confirmed that she had not made any firm job applications because she did not know what the Panel would decide.

23. Ms Welsh reminded the Panel of the relevant law (which is set out below) and invited the Panel to first have regard to the findings of the Substantive Hearing panel which had found proved two periods of dishonesty by the Applicant. It had also found that the Applicant lacked insight at that time and that there was a significant risk of repetition.

24. She submitted that the Panel should have regard to the Applicant’s expressions of remorse and the evidence it had heard of her insight into the impact her actions had had on both the public and her colleagues. She submitted that it should also consider the extent of the link between her misconduct and the health matters that had been raised in private and should evaluate the steps the Applicant had taken to ensure that those issues did not arise again. She also invited the Panel to have regard to the testimonials that had been written in support of the Applicant’s efforts and the documentation which demonstrated the steps she had taken to keep her knowledge up to date.

25. She submitted that the Panel should remember that it is not enough for the Applicant to satisfy the training requirements for restoration; she had also to satisfy the Panel that she was a fit and proper person to be restored to the Register. She reminded the Panel that they could restore the Applicant unconditionally or state that the restoration should be subject to satisfactory completion of the education requirements. She told the Panel that the HCPC did not seek a Conditions of Practice Order in this case and it was a matter for the Panel to decide whether the Applicant was a fit and proper person to be restored to the Register and had completed the necessary training requirements.

26. The Panel heard the advice of the Legal Assessor.

The Panel’s approach
27. The Panel had regard to the HCPTS practice note ‘Restoration to the Register’ (updated June 2022) and it accepted the advice of the Legal Assessor, which it has followed in the decision set out below.

28. The Panel reminded itself that this is an application under Article 33(5) of the Health Professions Order which provides that:
(5) The Committee shall not grant an application for restoration unless it is satisfied, on such evidence as it may require, that the applicant not only satisfies the requirements of article 9(2)(a) and (b) but, having regard in particular to the circumstances which led to the making of the order under article 29, 30 or 38, is also a fit and proper person to practise the relevant profession.

29. The Panel bore in mind that the burden of proving that the Applicant is a fit and proper person to be restored to the Register is on the Applicant and that the applicable standard of proof is the civil one, namely on the balance of probabilities.

30. It reminded itself that it is not sufficient for the Applicant to establish that she meets the requisite standard of proficiency and the other general requirements for registration. The Applicant must satisfy the Panel that she has developed the required insight, remorse and remediation and that she no longer poses any risk, as identified by Substantive Hearing Panel, which decided to remove the Applicant from the HCPC Register.

31. In determining the application, the Panel considered the following:
(a) the matters which led to the Applicant’s striking off and the reasons given by the Substantive Hearing panel;
(b) whether the Applicant accepts and has insight into those matters;
(i) whether the Applicant has resolved the matters, has the willingness and ability to do so, or whether they are capable of being resolved by the Applicant;
(c) what other remedial or rehabilitative steps the Applicant has taken;
(d) the period of time since the Applicant was removed from the Register;
(e) the Applicant’s employment history since she was removed from the Register;
(f) what steps the Applicant has taken to keep her professional knowledge and skills up-to-date;
(g) taking all of the aforementioned factors into account, whether the Applicant would be able to practise safely as a physiotherapist in the future; and
(h) whether, in the context of the concerns that led to the previous removal order, public confidence in the physiotherapy profession would be undermined if the Applicant were restored to the register. The Panel had particular regard to the guidance given to panels by the High Court in GMC v Chandra [2018] EWCA Civ 1898 to “step back” and ask itself if restoration would promote the statutory overarching objective of the HCPC.

Decision
32. The Panel first asked itself whether the Applicant had satisfied the requirements for formal study, private study, and supervised practice which an applicant for restoration must satisfy. It reminded itself that the Applicant was required to complete 60 days of study and supervised practice. It also reminded itself that an applicant for restoration following a Striking Off Order must not be in a more favourable position than an applicant seeking restoration after a career break.

33. In light of these considerations, the Panel considered the Applicant's evidence and all the documentation before it, including 70 pages of documents that the Applicant brought to this adjourned hearing. It also had regard to the letter from Ms Webb which the Panel has referred to above.

34. Having regard to all these factors, the Panel concluded that the Applicant had fulfilled her obligations in this regard and there was nothing to be gained by requiring her to submit further records to the Registrar.

35. The Panel then considered whether the Applicant had satisfied it that she was now a fit and proper person to be restored to the Register. The Panel reminded itself of the repeated misconduct that had resulted in the Applicant being struck off the Register. It also noted the finding of the Substantive Hearing panel, regarding the Applicant’s lack of insight at that time and the risk of repetition. The Panel also noted that the Substantive Hearing panel had acknowledged that at the time of her misconduct, the Applicant had health condition and significant family problems.

36. The Panel noted in particular the very serious health difficulties that the Applicant faced following the substantive hearing and the steps she has taken since then to maintain her health and rebuild her reputation. The Panel reminded itself that the Applicant had worked first as a volunteer and then in a part time job caring for vulnerable patients. The Panel also reminded itself of the very favourable impression that the Applicant had made on those who worked with her and trained her over several years since her misconduct.

37. In light of the findings of the Substantive Hearing panel, the Panel considered whether the Applicant had now gained insight into her misconduct. Having regard to her written and oral evidence and in particular the concrete steps that the Applicant has taken not only to safeguard her health but also demonstrate that she has remediated her misconduct and is focused upon serving vulnerable patients, the Panel found that the Applicant had developed good insight.

38. The Panel acknowledged that it is difficult to remediate dishonesty but found that the Applicant’s misconduct was confined to a relatively short period. This occurred during a period of illness. The Panel noted that the Applicant’s registration spanned 35 years, and found that her conduct had been beyond reproach both before and since her misconduct. Taking those matters together, the Panel concluded that the risk of repetition was extremely low.

39. Having reached those conclusions, the Panel asked itself whether, notwithstanding the serious nature of the original misconduct, restoring the Applicant to the Register would:
a. Protect, promote and maintain the health, safety and well-being of the public,
b. Promote and maintain public confidence in physiotherapists, and
c. Promote and maintain proper professional standards.

40. Having regard to all the matters set out above, the Panel was satisfied that restoration would achieve these objectives by returning a good and competent and committed practitioner to a position where she could help vulnerable members of the community. The Panel considered that the Applicant has demonstrated over a significant period her determination to practise safely and honestly in the future. The Panel was satisfied that this decision would show that the Applicant was returned to the register only after she had done all that could be expected of her to resolve the concerns of the Substantive Hearing Panel.

41. Accordingly makes the following order:

The Registrar is directed to restore the name of Ms Vivienne Gleave (the Applicant) to the Physiotherapy Part of the Register, but restoration is only to take effect once the Applicant has:
(a) provided the Registrar with any information and declarations required for admission to the Register;
(b) paid the prescribed restoration fee; and
(c) satisfied the Registrar that, in relation to the Applicant, there is or will be in force appropriate cover under an indemnity arrangement.

No notes available

History of Hearings for Vivienne Gleave