Emma-Jo Montgomery

Background
1. The Registrant is a registered Podiatrist with registration number CH34590.

2. Under Part 11A of the Health Professions Order 2001, and the Health Care and Associated Professions (Indemnity Arrangements) Order 2014, Schedule 1, Part 1, a Registrant who is practising must have Professional Indemnity Insurance (“PII”) in force. It was alleged that the Registrant did not have an indemnity arrangement in place while working at Foot Medic from July 2021 and April 2022.

3. The Registrant was employed to work at Foot Medic in Glasgow as a Podiatrist from July 2021 until her resignation in July 2022. Due to a potential patient complaint in May 2022, the Registrant’s employer requested various pieces of information from her, including confirmation of her registration with the Royal College of Podiatrists (“RCOP”) and details of her PII cover. Following a meeting with the Registrant on 12 May 2022, her employer checked the RCOP website and the Registrant’s details did not appear. He telephoned RCOP who confirmed the Registrant had just submitted an application for membership on 9 May 2022 and this could be why her details were not on the website.

4. On 18 May 2022, in a meeting with her employer, the Registrant is alleged to have informed her employer that she was insured by the RCOP, that she had always been a member, and that she would provide documentation to support this. Following this meeting, the Registrant’s employer asked her to provide evidence of her insurance status on a number of occasions over the following months. The Registrant did provide an RCOP certificate which stated that she was a member, but did not provide dates of membership.

5. The Registrant resigned from Foot Medic with immediate effect on 11 July 2022.

6. In response to emails from the HCPC in November 2022, RCOP emailed to confirm the Registrant was a member from 1 January to 20 March 2020, and was not a member again following this until 9 May 2022. She was not a member in 2021.

7. The Registrant has submitted a number of written responses and testimonials. She acknowledged that during the period of January 2022 to March 2022 she did not possess the required professional indemnity insurance and set out that at the time of the concerns, she had recently returned to work following health issues. She stated in a response to the Notice of Allegation dated 13 February 2025.

“I acknowledge that during the specified period, I did not possess the required public [sic] indemnity insurance. I deeply regret this oversight, which was due to an administrative error on my part. I understand the serious implications of this issue and want to express my sincere apologies for any distress this may have caused…

At the time, I had recently returned to work following [redacted] during [which] my parents assisted me in managing my financial commitments, including my insurance, while I was focused on recovery.”

8. The Registrant stated that she immediately contacted the Royal College of Podiatry and enrolled in a new insurance policy. She acknowledged she was not forthcoming with the details “due to feelings of embarrassment and anxiety about the potential impact on my employment.”
Live evidence heard
9. The Panel heard live evidence from Ciaran Canney, owner and Director of Foot Medic in Glasgow who gave evidence by video link. The Registrant also gave oral evidence.

10. The Panel also had sight of a number of documents which included, but were not limited to:
• Statement of Lucy Wright, Associate at Capsticks LLP together with her exhibits;
• Statement of William Turner, Case Manager at HCPC, together with his exhibits;
• Statement of Mark Robinson, Registrations Manager at the HCPC, together with his exhibits;
• The Registrant’s written submissions;
• Copy of a CPD certificate and details of upcoming CPD events that have been booked; and
• A bundle of character statements.

Decision on Facts
Panel’s Approach

11. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything, and the individual Particulars of the Allegation could only be found proved if the Panel was satisfied that this was the case on the balance of probabilities.

12. In reaching its decision, the Panel took into account the oral evidence of the HCPC witness and the Registrant, together with all of the documentary evidence provided to it, including the Registrant’s written statement and supporting document submitted by her, and the oral submissions made by Ms Kennedy on behalf of the HCPC and submissions made by the Registrant.

13. The Panel also accepted the advice of the Legal Assessor, which is a matter of record. When considering each Particular of the Allegation, the Panel has borne in mind that the burden of proof rests on the HCPC and that allegations are found proved based on the balance of probabilities. This means that Particulars will be proved if the Panel is satisfied that what is alleged is more likely than not to have happened. The Panel has also taken into account the Registrant’s good character in line with the advice given by the Legal Assessor.

Particular 1
14. At the outset of this hearing, the Registrant admitted the facts of Particular 1.

15. The Panel accepted the advice of the Legal Assessor regarding whether the admission made by the Registrant could be accepted in line with HCPTS’s Practice Note on Admissions which states:

“13. In considering its approach to admissions, particularly admissions from registrants who are not represented, a panel must ensure that the overall fairness of the proceedings is secured. Panels will therefore want to ensure that, by way of example:
a. a registrant's admission is 'unequivocal' and that they are not making an admission for reasons of expediency or on some other inappropriate basis;”

16. The Panel was satisfied that the Registrant’s admission was unequivocal, consistent with her written representations, and that it was not made for expediency or for any other inappropriate reason and that, in the circumstances, it could properly be accepted.

17. As such, the Panel found the facts of Particular 1 proved by reason of the Registrant’s admission.

Particular 2
18. The Panel found the facts of Particular 2 proved for the following reasons.

19. Mr Canney stated that on 11 May 2022, it came to light that there was a potential client complaint against the Registrant. The complaint was about a difference in clinical opinion given to the client by the Registrant and another clinician the client had seen. During a phone call between the Registrant and Mr Canney, they discussed the client’s complaint. Mr Canney stated that the Registrant was extremely defensive, emotional, tearful and upset.

20. In an attempt to reassure the Registrant, Mr Canney stated that he told the Registrant not to worry as this is why they have PII in place. He stated that there was something in the Registrant’s reaction that told him he needed to check that the insurance was actually in place.

21. Having called the RCOP Officer, Mr Canney stated that he was informed that the Registrant’s PII may have been provided by a different organisation. The RCOP provided the vast majority of PII for Podiatrists, however there are smaller organisations which also offer insurance. He stated that he therefore did not make the assumption that the Registrant had no PII in place, and that he asked the Registrant to provide evidence that she did.

22. Mr Canney stated that on 18 May 2022, he met with the Registrant over ‘Zoom’ as he was in Dumfries at the time and the Registrant was in the Glasgow clinic. He said they discussed the Registrant’s PII cover, and he asked the Registrant to clarify details of her membership with RCOP and insurance. Afterwards, he produced a summary note of the meeting which, he said, was made very shortly after the meeting, a copy of which was produced to the Panel. In it, Mr Canney stated that: “When I asked you whether you had insurance during this time, you told me that you were definitely insured and that your payments for membership to the RCOP were being made”. He stated that he then sent the summary to the Registrant.

23. Mr Canney stated that during the meeting the Registrant insisted that she was insured by the RCOP, that she had always been a member, and that she had never let her membership lapse. He said he told the Registrant that this was a good thing and that she should ask the RCOP for a copy of her insurance certificate.

24. On 23 May 2022, following up on the meeting of 18 May 2022, Mr Canney emailed the Registrant stating:

“You will recall one topic we discussed was your medical indemnity insurance. I outlined to you that following a recent patient complaint, I was concerned when I discovered that you may not have held insurance for the period from January to May 2022. I explained to you how serious the matter could be for both yourself, the practice and the Royal College of Podiatry (RCOP) as well as HCPC. When I asked you whether you had insurance during this time, you told me you were definitely insured and that your payments for membership to the RCOP were being made. I told you I was relieved to hear this from you.”

25. The Registrant denied the allegation. She denied that she told Mr Canney that she did have insurance cover over the relevant period, and she therefore disputed the contents of both Mr Canney’s one-to-one report of the meeting on 18 May 2022, and the contents of his email of 23 May 2022. She stated that she did not recall having seen that email. Mindful that the burden of proof rests on the HCPC, the Panel noted that there was no evidence before it that the Registrant challenged the contents of those documents as being inaccurate.

26. The Panel also had regard to the contents of the Registrant’s representations contained in a letter dated 13 February 2025 in which the Registrant stated:

“At the time, I had recently returned to work following a [health condition]….my parents assisted me in managing my financial commitments, including my insurance, while I was focused on recovery. Although my hospitalisation was brief, it affected my ability to handle administrative tasks effectively. While this explanation does not excuse my mistake, it provides context for my situation. I want to clarify that I never intended to mislead my employer or the HCPC. I was unaware of any ongoing investigation regarding allegations of dishonesty. I have always conducted myself with integrity in my professional and personal dealings. Upon realising the lapse in my insurance coverage, I took immediate action by contacting the Royal College of Podiatry and enrolling in a new insurance policy through a direct debit arrangement with auto renewal.
I acknowledge that I may not have been forthcoming with all details due to feelings of embarrassment and anxiety about the potential impact on my employment, particularly as I am the main income for my family. However, I want to emphasise that this does not reflect my character. I am committed to my profession and strive to maintain high standards of communication and loyalty.”

27. Whilst that letter purported to provide an explanation for not being “forthcoming”, the Registrant initially stated in evidence that she thought she had insurance, but when it was brought to her attention that she did not, she rectified the position and put PII cover in place. However, she subsequently stated that she had not been sufficiently careful with the wording of her letter because she only had one day to respond to the request for information and that she felt she was “under duress”. As such, her explanation did not reflect the true position that she had neither misled Mr Canney nor that she had been dishonest.

28. The Panel concluded that the evidence of Mr Canney was more credible and reliable than that of the Registrant and therefore preferred his evidence for the following reasons:

• His oral evidence was consistent with his statement and the contemporaneous notes and emails he produced in relation to what was discussed with the Registrant on 18 May 2022 and his subsequent requests of the Registrant that she provide proof of PII cover;
• Prior to her giving oral evidence, the Registrant had not disputed the contents of Mr Canney’s note and emails;
• The Registrant’s explanation for events as set out in her written statement dated 13 February 2025 provide a rationale for not disclosing that she did not have insurance at the relevant time and is therefore consistent with Mr Canney’s evidence that the Registrant misled him as alleged;
• As set out in paragraph 27 above, the Registrant gave two inconsistent reasons for her actions; and
• The Panel did not consider the Registrant’s explanation for her statement of 13 February 2025 to be plausible. It did not consider that the pressure of time amounted to a plausible explanation as to why she would give a wholly untrue explanation for her actions.

29. In all the circumstances, the Panel concluded that it was more likely than not that the Registrant led her employer to believe that she had PII when she did not.

Particular 3
30. The Panel found the facts of Particular 3 proved for the following reasons.

31. Mr Canney stated that, following his meeting with the Registrant on 18 May 2022, he sent a follow up email to the Registrant on 31 May 2022, chasing a copy of the Registrant’s PII certificate.

32. He stated that later that day, the Registrant responded by email to say the RCOP had sent her a certificate and asked him if he wanted it to which he responded saying that: “I don't want it, I NEED it.”.

33. He stated that he asked the Registrant to give it to Ms Macleod, the Practice Manager or Ms Ewer the Administrator at that time. Mr Canney stated that on 31 May 2022, the Registrant responded to say she would bring the certificate to work the next day. She then provided a copy of a member’s certificate stating that she was a member of the RCOP.

34. Mr Canney stated that on 6 June 2022, he responded to the Registrant to say that the certificate did not include any dates and therefore was not sufficient to confirm that insurance was in place at the time of the complaint. He stated that he asked the Registrant if she wanted him to contact the RCOP on her behalf. He said he chased the Registrant a number of times throughout June and July 2022, both by phone and email. He stated that he did not have notes for the telephone calls but produced copies of the various emails to the Panel to which he stated that he received no response.

35. As the correspondence continued, Mr Canney stated that he became increasingly frustrated as he felt he was being ignored. He stated that he set a number of deadlines for the Registrant to provide evidence of insurance, but these deadlines would pass with no response. He stated that at no point did the Registrant say that she had phoned the RCOP or attempted to resolve the matter.

36. Mr Canney stated that the Registrant made several promises that she would bring the certificate in the next day but that she always had an excuse as to why she did not have the certificate, one was that she had a physical copy which she could not send via email and another was that she had left it in a different handbag to the one that she had with her on the day.

37. Whilst the Registrant denied the Particular, and again being mindful of the burden of proof, the Panel noted that the Registrant did not adduce evidence that she had professional indemnity insurance for the relevant period. The Panel noted that in any event, she would have been unable to do so because she accepted, by reason of her admission to Particular 1, that she did not have insurance cover at the relevant time.

38. In the circumstances, the Panel found the facts of Particular 3 proved.

Particular 4
39. In considering whether the Registrant acted dishonestly, the Panel applied the test for dishonesty as set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67.

“When dishonesty is in question the fact-finding tribunal must first ascertain subjectively the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the objective standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

40. It also took into account the Registrant’s good character, in accordance with the advice received from the Legal Assessor.

Dishonesty in relation to Particular 2

41. The Panel, having found the facts of Particular 2 proved, then considered whether the Registrant’s conduct was dishonest, a matter denied by the Registrant.

42. By reason of its findings in relation to Particulars 1 and 2, the Panel has found that between July 2021 and April 2022, the Registrant failed to have PII in place and that she misled her employer into believing that it was in place.

43. The Registrant repeatedly said in evidence that she was aware that she did not have insurance cover in place in late April 2022, a position she confirmed in her undated written ‘Clarification Statement’.

44. In her letter dated 13 February 2025, the Registrant stated:

“I acknowledge that I may not have been forthcoming with all details due to feelings of embarrassment and anxiety about the potential impact on my employment, particularly as I am the main income for my family. However, I want to emphasise that this does not reflect my character. I am committed to my profession and strive to maintain high standards of communication and loyalty.”

45. The Panel concluded it was more likely than not that this was a true explanation for the Registrant’s actions.

46. The Panel therefore concluded that, by telling Mr Canney in May 2022 that she had PII in place, when she knew in late April that it was not the case, the Registrant knew that what she told Mr Canney was untrue. The Panel concluded that, given her embarrassment and anxiety about the impact her lack of insurance might have on her employment, that she Registrant deliberately sought to hide the fact from her employer that she did not have PII cover at the relevant time.

47. The Panel considered that ordinary members of the public would find that making an untrue statement in those circumstances, would be considered dishonest.

48. The Panel therefore concluded that in relation to this Particular, the Registrant acted dishonestly. The Panel therefore found Particular 4 proved in respect of Particular 2.

Dishonesty in relation to Particular 3

49. The Panel, having found the facts of Particular 3 proved, then considered whether the Registrant’s conduct was dishonest.

50. The Panel has found that, from late April 2022, the Registrant knew that she did not have professional indemnity insurance in place for the relevant period, a position she rectified in May 2022. Despite assurances that she would provide evidence of PII cover for the relevant period, following repeated requests from her employer that she do so, it was apparent that she would not have been able to provide such evidence for any period when no cover was in place. The Panel concluded that the Registrant would have known this when she provided the RCOP certificate to Mr Canney in May 2022.

51. The Panel again concluded that, given her embarrassment and anxiety about the impact her lack of insurance might have on her employment, that the Registrant knowingly sought to hide the fact that she did not have PII from her employer by suggesting that she would provide evidence of insurance cover when that would not have been possible.

52. The Panel considered that ordinary members of the public would find that seeking to hide the fact that the Registrant did not have insurance cover in those circumstances, would be considered dishonest.

53. The Panel therefore concluded that in relation to this Particular, the Registrant acted dishonestly. The Panel therefore found Particular 4 proved in respect of Particular 3.

Decision on Grounds
HCPC submissions
54. Ms Kennedy invited the Panel to conclude that the Registrant had breached standards 9 and 9.1 of the HCPC “Standards of conduct, performance and ethics” (2016):

Standard 9: Be honest and trustworthy;

Standard 9.1: You must make sure that your conduct justifies the public’s trust and confidence in you and your profession;

55. Ms Kennedy, relying on her submissions made in her case summary, submitted that the Registrant’s conduct marked a serious departure from the standards expected of a registered Podiatrist and was sufficiently serious to amount to misconduct.

56. In relation to impairment, Ms Kennedy submitted that the Registrant’s dishonesty to her employer regarding her insurance arrangements spanned a period of several months. She submitted that the Registrant has not demonstrated insight into her dishonesty, how she has remediated this, or how she would act differently in future.

57. Ms Kennedy submitted that, in the absence of the Registrant showing sufficient insight and remediation, there remained a risk of repetition. As a result, her fitness to practise is therefore impaired in respect of the personal component.

58. She also submitted that, given the seriousness of the Registrant’s failings, a failure to make a finding of impairment would undermine confidence in the profession and the regulatory process.

59. Ms Kennedy submitted that a failure to have indemnity arrangements in place, puts service users at risk as there may not be appropriate compensation available if a successful claim is made against a registrant. The Registrant has been found to have dishonestly covered up her failure to have indemnity arrangements in place and failed to cooperate with her employer. She therefore submitted that the Registrant’s actions breached a fundamental tenet of the profession, namely to act with honesty and integrity, and failed to justify the public’s trust and confidence in her and her profession. Such confidence, she submitted, would be undermined if a finding of impairment were not made.

60. She invited the Panel, in reaching its decision, to have regard to the principles derived from the case of Sawati v GMC [2022] EWHC 283 in relation to the Registrant’s rejected defence which are set out at paragraphs 13 and 14 in the HCPTS’s Practice Note on Fitness to Practise Impairment. She reminded the Panel to bear in mind that the Registrant had not taken responsibility for her failings, but had instead sought to blame her employer, suggesting that he had been dishonest, had failed to properly manage the practice, had harassed and bullied her, and that he had fabricated what the Registrant had allegedly said to him in their meeting on 18 May 2022. The Registrant’s position, she submitted, was demonstrative of a lack of insight and therefore the risk of repetition of her dishonest conduct remained.

61. Ms Kennedy also made reference to the positive testimonials provided by the Registrant, but reminded the Panel that that this case did not involve issues of clinical competence, but related to issues regarding the Registrant’s honesty and probity.

Registrant’s submissions
62. The Registrant did not make any specific submissions in relation to misconduct.

63. However, she denied that her fitness to practise is impaired. She submitted that she had taken full responsibility for her actions. The lapse in insurance cover was administrative and unintended. It was fully remediable, and she took immediate corrective steps as soon as she became aware of it.

64. She stated that she had put a direct debit in place to pay for her insurance and that it auto renewed, so that there was no ongoing risk of her failing to have PII in place in future. She submitted that she has been transparent and cooperative throughout the regulatory process. She said that she had accepted the lapse in insurance cover, acknowledged her role in it, and that she had taken appropriate steps to rectify the issue.

65. She also informed the Panel that no previous complaints have been made against her and that she has fully complied with her professional obligations since this matter arose. She referred the Panel to the bundle of references which attested to her good character and professionalism. She also informed the Panel that since this matter arose approximately some three years ago, and she has continued in practice and has successfully treated over five thousand patients without any incident or concern being raised since then. She submitted that during this time, she has maintained a strong record of safe, ethical, and effective practice.

66. She submitted that she wanted to make it explicitly clear that she had not at any point sought to discredit Mr Canney. She stated that any evidence or clarifications she provided in relation to their communications were solely to demonstrate context and highlight that mistakes or human error can and do occur. Her intent has never been to assign blame but rather to present a full and accurate account of events as she experienced them.

67. While it has been determined that the lapse in insurance cover did occur, she accepted the seriousness of this but submitted that the circumstances did not support a conclusion that she acted dishonestly. Rather, they demonstrated her efforts to act responsibly and lawfully within a difficult context, and her commitment to professional integrity.

68. She submitted that she understood the seriousness of practising without valid PII, not only in regulatory terms but in relation to public trust and accountability. She said she had reflected on how this occurred, why it happened, and what she needed to do to ensure it could never happen again.

69. She acknowledged that her initial communication may have lacked clarity due to emotional distress and the pressure of the circumstances. However, she submitted that did not intend to mislead her employer. She said that she responded truthfully and as fully as she could under the time constraints and stress involved. Since then, she stated that she has worked on improving her professional communication and reflective practice.

70. She stated that she had continued with her CPD requirements and remained committed to the profession.

71. In relation to public confidence, the Registrant submitted that she acted transparently and took swift action to resolve the insurance issue once identified. She stated that her ongoing professionalism, accountability, and openness supported public trust, rather than undermined it.

72. In conclusion, the Registrant submitted that in all the circumstances, the Panel should conclude that her fitness to practise is not currently impaired.

Decision
73. On the basis of the facts found proved, the Panel went on to consider whether the Registrant’s conduct amounted to misconduct. It took into account all the evidence received together with the submissions made by Ms Kennedy on behalf of the HCPC and those made by the Registrant, both orally and in her written representations.

74. In considering this matter, the Panel exercised its own judgement. The Panel also took into account the public interest, which includes protection of the public, maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

75. When considering whether the facts found proved amounted to misconduct, the Panel noted that not all breaches of the HCPC’s “Standards of performance, conduct and ethics” need amount to a finding of misconduct.

76. The Panel heard and accepted the advice of the Legal Assessor who reminded the Panel of the meaning prescribed to misconduct in the case of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, in which it was said:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

77. In Nandi v GMC [2004] EWHC 2317 (Admin) the Court referred to Roylance where the Court described misconduct as “a falling short by omission or commission of the standards of conduct expected among medical practitioners, and such falling short must be serious” such that it would be “regarded as deplorable by fellow practitioners”.

78. The Panel adopted a two-step process in its consideration. Firstly, the Panel considered whether the facts found proved amounted to misconduct. Secondly, and only if the facts proved were found to amount to misconduct, the Panel would go on to consider whether the Registrant’s fitness to practise is currently impaired as a result of that misconduct.

79. Given the Panel’s findings in relation to the facts found proved, relating as they did to findings of dishonesty, it concluded that the Registrant breached Standards 9 and 9.1 of the HCPC’s “Standards of conduct, performance and ethics”.

80. However, the Panel was mindful that a finding of misconduct did not necessarily follow as a result.

81. The Panel carefully considered the seriousness of the Registrant’s failings. In doing so, it identified that:

• While there was no evidence of harm having been caused by the Registrant in relation to the facts found proved, the risk of harm was high by failing to have insurance in place. Patients would be put at risk in that they may be unable to secure compensation to which they may be entitled in the event of a successful claim being made against the Registrant. The Panel has borne in mind the mandatory nature of the requirement for insurance cover;
• The Registrant repeatedly acted dishonestly to her employer to conceal her wrongdoing.

82. The Panel heard and accepted the advice received from the Legal Assessor. Having done so and for the reasons set out above, the Panel concluded that the matters found proved and subsequent breaches of the HCPC’s “Standards of conduct, performance and ethics”, were both individually and collectively sufficiently serious departures from the standards expected of a Podiatrist as to amount to misconduct.

83. The Panel therefore found that the Registrant’s conduct as found proved amounted to misconduct.

Decision on Impairment
Decision

84. The Panel went on to decide whether, as a result of her misconduct, the Registrant’s fitness to practise is currently impaired.

85. The Panel had regard to all of the evidence presented in this case, including the submissions of Ms Kennedy and those of the Registrant. The Panel also heard and accepted the advice of the Legal Assessor and took into account the HCPTS Practice Note on “Fitness to Practise Impairment”.

86. In reaching its decision on impairment, the Panel was mindful that it does not necessarily follow that a finding of current impairment follows from a finding of dishonesty. However, any instance of dishonesty is likely to impair a registrant’s fitness to practise and it would be unusual where this is not found to be the case.

87. Podiatrists are expected at all times to act with honesty and integrity. They must make sure that their conduct at all times justifies both service users’ and the public’s trust in the profession. Failure to do so unquestionably undermines the trust the public can have in the profession. In this regard, the Panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision. In paragraph 74, she said:

“In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

88. Mrs Justice Cox went on to say in Paragraph 76:

“Do our findings of fact in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or

d. has in the past acted dishonestly and/or is liable to act dishonestly in the future”.

89. Given its findings regarding ‘seriousness’, the Panel considered that limbs a, b, c, and d were all engaged by the Registrant’s conduct. The Panel had regard to the fact that having PII in place is a mandatory requirement for Podiatrists, and that honesty is a core value of the Podiatry profession which the Registrant had breached to conceal her wrongdoing.

90. In relation to the Registrant’s reflections and submissions, the Panel noted that the Registrant has focussed on the fact that her failure to maintain PII cover was accidental and unintended, and that she has addressed that issue by putting insurance cover in place that automatically renews with payment being made by direct debit.

91. The Panel concluded that the failure to maintain PII was a matter that could easily be remediated and that she had done so, and that this failing was unlikely to be repeated. As such, the Panel concluded that her fitness to practise in relation to this part of the allegation was not currently impaired on the personal component of impairment.

92. However, the Panel was mindful of the risk of harm that resulted from the Registrant’s failure to maintain effective PII cover as identified in paragraph 81 above. The Panel concluded that Podiatrists are justifiably expected to maintain PII cover to ensure that members of the public have recourse to compensation in the event that a successful claim is made against them. Failure to do so, even inadvertently, the Panel concluded, undermined the confidence the public can have in the profession.

93. In the circumstances, the Panel concluded that the Registrant’s fitness to practise in relation to this aspect of her misconduct is impaired on the public component of impairment.

94. In relation to dishonesty, the Panel recognised that dishonesty is difficult to remediate. The Panel was not satisfied that the Registrant had taken personal responsibility for her dishonest conduct, nor had she meaningfully reflected and demonstrated insight into the impact of dishonesty on the reputation of the profession generally. The Panel concluded that her lack of candour on discovery of the lack of insurance cover, and which continued throughout this hearing, was indicative of a lack of insight on her part.

95. The Panel concluded that the Registrant continued to steadfastly maintain that she had not acted dishonestly. Furthermore, it concluded that she continued to deflect personal responsibility for her dishonest behaviour by asserting bullying and harassing by Mr Canney, and maintaining that he had fabricated evidence against her, for example in relation to his notes of his meeting with her on 18 May 2022. Recognising that the Registrant was entitled to defend herself in relation to allegations she denied, these factors, the Panel concluded, could quite properly be taken into account when considering insight and impairment in line with the principle in Sawati.

96. The Panel was concerned that despite the Registrant’s submissions, the Registrant had failed to meaningfully develop insight into her dishonest behaviour and therefore it was not satisfied that the Registrant had, in practice, remediated her failings in this regard. As such it concluded that there remained an ongoing risk of her dishonest conduct being repeated should a similar situation arise in the future where she was challenged in relation to some aspect of her practice, albeit that it may not be in relation to the exact same circumstances as arose in this case.

97. As such, in relation to the Registrant’s misconduct, the Panel determined that the Registrant’s fitness to practise in relation to her dishonest conduct is currently impaired on the personal component.

98. The Panel also took into account the overarching objectives of the HCPC to protect, promote, and maintain the health, safety, and wellbeing of the public and patients, and to uphold and protect the wider public interest, which includes promoting and maintaining public confidence in the Podiatry profession and upholding proper professional standards for members of the profession. The Panel therefore considered that, given the serious nature of the Registrant’s repeated dishonesty into which the Registrant had demonstrated limited insight, and which had had yet to be fully remediated, public confidence in the profession would be undermined if a finding of impairment were not made in all the circumstances.

99. Having regard to all of the above the Panel found that, by reason of her misconduct, the Registrant’s fitness to practise is also currently impaired on the public component of impairment.

Sanction

HCPC’s submissions

100. Ms Kennedy did not make any specific submission that any particular sanction should be imposed, but reminded the Panel that for dishonesty matters, a striking-off order was available to it.

101. She reminded the Panel that sanction was a matter for the Panel’s judgment. Given the Panel’s determination on impairment which identified serious breaches of the standards expected of a Podiatrist, the Registrant’s misconduct represented conduct at the top end of the scale of seriousness which could justify such a sanction.

102. She referred the Panel the HCPC’s Sanctions Policy (“SP”) and identified each of the available sanctions and the circumstances in which each might be appropriate.

103. Ms Kennedy reminded the Panel that the Registrant had been found to have been repeatedly dishonest, and that she had demonstrated limited insight into her dishonesty, seeking to deflect responsibility for her actions. Furthermore, she submitted that the Registrant’s failure to demonstrate effective remediation of her failings resulted in an ongoing risk of harm to the public.

Registrant’s submissions

104. The Registrant at the outset of her mitigation, apologised for her actions and unequivocally stated that she accepted the Panel’s findings and that she took responsibility for her actions.

105. She reminded the Panel that she remained committed to the profession, had continued to work without concerns, providing safe and effective care to the public.

106. She stated that she recognised that dishonesty was a serious matter and that it was hard to remediate and that she fully understood that acts of dishonesty undermined confidence in the profession.

107. She stated that she now recognised that she had made a serious error of judgement and that her conduct fell short of what was expected of her. She stated that she felt overwhelmed at the time of her dishonest behaviour and that she now recognised that she should have been more open. She stated that she understood that even though there was no evidence of harm caused to any service user, the risk of harm was apparent and that her conduct damaged the reputation of the profession. She gave an assurance that such conduct would not happen again.

108. She stated that she was genuinely sorry for the way she behaved and offered a full and sincere apology to the profession and to the public. However, she stated that her actions were not malicious, and she did not benefit from them. The Registrant said she was committed to continuing practising in line with her professional obligations.

109. She submitted that a Striking-Off Order would be disproportionate and that the Panel should consider the imposition of a Conditions of Practice Order which would provide sufficient public protection. She stated that she was willing to comply with any training or supervision requirements that might be imposed on her.

Decision on Sanction

110. The Panel accepted the advice of the Legal Assessor who referred it to the SP. He reminded the Panel that it should consider any sanction in ascending order, and to apply the least restrictive sanction necessary to protect the public and the public interest. It should also consider any aggravating and mitigating factors and bear in mind the principle of proportionality. He reminded the Panel that the primary purpose of imposing a sanction was protection of the public and the public interest and that there was a need to balance those interests with the interests of the Registrant.

111. In reaching its decision on whether to impose a sanction, and if so, which one, the Panel has reminded itself of its conclusions in relation to the seriousness of the Registrant’s misconduct as set out in its determination on impairment. The Panel had concluded that the Registrant continued to pose an ongoing risk to the public, and that there remains a risk of repetition of her misconduct. As such, any sanction should reflect the need to uphold the public interest and mark the seriousness of the misconduct found proved. In that regard, the Panel has had due regard to paragraphs 56-58 of the SP, noting the impact of dishonesty on public confidence.

112. However, the Panel was also mindful that in her submissions in mitigation, the Registrant demonstrated a higher level of insight into her conduct and its impact on the reputation of the profession than she had hitherto shown throughout this hearing. Albeit that such insight came late in the day, the Panel considered her expressions of remorse and regret to be genuine, and that her acceptance of its findings gave it significant reassurance that, given time, the Registrant would be able to demonstrate full insight and remediation of her dishonest conduct.

113. The Panel considered all the information before it. In doing so, the Panel identified the following aggravating factors:

• That the Registrant repeated her dishonesty to conceal her wrongdoing and showed a lack of candour when confronted with alleged wrongdoing;
• She sought to discredit her employer and deflect responsibility for her actions;
• The Registrant has initially demonstrated little insight into her dishonest behaviour, although, as stated above, this had significantly improved having considered the Panel’s determination on impairment; and
• The Registrant has not meaningfully demonstrated that she has remediated her dishonest behaviour, although the Panel recognised that she has addressed the issue of ensuring that PII is in place.

114. The Panel identified the following mitigating factors:

• The Registrant’s misconduct represents an isolated incident that has not been repeated;
• The Registrant does not have any previous regulatory findings recorded against her;
• She has accepted the Panel’s findings and recognised that her actions amounted to misconduct;
• There has been a significant expression of remorse, regret and apology, albeit that this has come late in the day; and
• The Registrant has produced a number of positive references attesting to her character and professionalism.

115. Considering all the circumstances in the round, the Panel considered the Registrant’s dishonesty, whilst serious, not to be at the most serious end of the spectrum of dishonesty.

116. The Panel approached the issue of sanction starting with the least restrictive first, bearing in mind the need for proportionality and to take into account the Registrant’s interests. Having done so, it concluded that taking no further action would not reflect the nature and gravity of the misconduct. The Panel concluded that taking no action would not be adequate to protect the public or the wider public interest of maintaining confidence in both the profession and the regulatory process given the ongoing risks identified. Such an outcome was therefore neither appropriate nor proportionate in the circumstances.

117. The Panel next considered mediation, but having had due regard to the circumstances of this case, such an outcome was inappropriate to address the issue of dishonesty. It therefore concluded that this was not an appropriate outcome.

118. The Panel then considered whether to impose a Caution Order and had regard to paragraphs 99-102 of the SP. The Panel concluded that this was also not an appropriate outcome because:

• For the reasons set out in its determination on misconduct in relation to dishonesty and impairment, the Panel did not consider the Registrant’s misconduct to be minor in nature; and
• The Panel considered that there remained an ongoing risk of repetition given the lack of effective remediation of her failings.

119. The Panel next considered whether a Conditions of Practice Order was appropriate. It had regard to paragraphs 105-109 of the SP. Notwithstanding that such an outcome might be considered appropriate to address a registrant’s clinical failings, it has concluded that such a sanction would neither be appropriate nor proportionate to address the public interest concerns identified. The Panel concluded that workable and appropriate conditions could not be formulated that would meaningfully address her dishonesty.

120. In the circumstances, the Panel concluded that imposing a Conditions of Practice Order was not the appropriate sanction to impose.

121. The Panel considered that a Suspension Order was the appropriate sanction to impose because:

• The matters found proved, as set out in the Panel’s determination on misconduct, represented serious breaches of the Standards of Conduct Performance and Ethics;
• The Registrant, by genuinely accepting the Panel’s findings, has, albeit it late in the day, demonstrated meaningful insight into her failings upon which the Panel was confident she could build and develop;
• The Panel was mindful that a striking off order was appropriate for the most serious cases of dishonesty. It considered that the Registrant's failings were not so serious that they were fundamentally incompatible with remaining on the register. In reaching that conclusion, it had regard to paragraph 121 of the Sanctions Policy which states that a Suspension Order may be appropriate where “there is evidence to suggest that the Registrant is likely to be able to resolve or remedy their failings”. The Panel noted that the Registrant had, by the sanction stage of this hearing, developed some insight into her dishonest behaviour even though that process was not as yet complete.

122. To satisfy itself that a Suspension Order was the appropriate and proportionate sanction to impose, the Panel considered whether a Striking-off Order was justified. It had regard to paragraph 130 of the Sanctions Policy which states that: “A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts” whilst setting out a non-exhaustive list of applicable circumstances. The Panel was satisfied, given the identified mitigating factors, that the facts of this case were not of such gravity so as to merit such a restrictive sanction. It concluded that the public protection, and the public interest concerns could be adequately met by the imposition of a Suspension Order which would restrict the Registrant’s ability to practise as a Podiatrist until such time as a reviewing panel determined that she was fit to do so. In reaching that decision, the Panel was mindful that the Registrant was otherwise regarded as a competent and effective practitioner.

123. The Panel therefore imposed a Suspension Order for a period of 6 months. The Panel concluded that that was an appropriate and proportionate period of time to enable the Registrant to reflect on the nature and gravity of the misconduct found proved and to allow her an adequate period of time to reflect on and fully remediate her failings.

124. So far as any future review is concerned, the Panel considered a future reviewing panel would be assisted by:

• Her attendance at any review hearing;
• Further evidence of remediation in relation to addressing her dishonest behaviour, which, for example, might include attending an ethics course;
• Evidence of reflection on her conduct demonstrating meaningful insight into her dishonest behaviour;
• Up to date references / testimonials in relation to any work undertaken by the Registrant, whether paid or unpaid;
• Evidence that the Registrant had kept her skills and knowledge up to date;
• Any other evidence the Registrant considers would assist her to demonstrate that she is suitable to return to unrestricted practice.

125. The Panel accordingly determined to impose a Suspension Order for a period of 6 months.

ORDER: The Registrar is directed to suspend the registration of Miss Emma-Jo Montgomery for a period of 6 months from the date this Order comes into effect.

Right of Appeal

You may appeal to the Court of Session against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order

1. Ms Kennedy applied for an Interim Suspension Order in light of the Panel’s findings on the grounds that it was necessary for the protection of the public and was otherwise in the public interest to cover the appeal period. She referred to the Sanctions Policy with particular reference to paragraphs 133 onwards with reference to Interim Orders. She applied for an Interim Suspension Order for a period of 18 months.

2. The Registrant opposed the application. She said there was a lack of demonstrable ongoing risk to the public during the appeal period. She said she had demonstrated insight and taken steps to remediate her failings and that there was no suggestion she posed an ongoing risk to the public or to the public interest.

3. She also said that such an Interim Order was disproportionate and punitive, particularly given her personal financial circumstances.

4. The Panel was mindful that when a substantive sanction is imposed, a Registrant’s entitlement to practise is unrestricted whilst their appeal rights against the substantive sanction remain outstanding. The Panel concluded that in view of its determination that a Suspension Order should be imposed, it would not be appropriate for the Registrant to return to unrestricted practice given the Registrant’s lack of demonstrable remediation and the ongoing risk of repetition of her misconduct.

5. The Panel therefore decided to impose an Interim Order under Article 31(2) of the Health Professions Order 2001, it being necessary to protect members of the public and being otherwise in the public interest, which outweighs the Registrant’s personal and professional interests.

6. It first considered an Interim Conditions of Practice Order. The Panel concluded that such an Interim Order would not be appropriate given its rationale for its earlier determination on sanction. It considered that in light of that determination, an Interim Suspension Order is necessary for protection of the public and is also in the public interest. It would be wholly incompatible with the Panel’s findings and its decision as to sanction not to impose an Interim Suspension Order.

7. The Panel concluded that the appropriate length of the Interim Suspension Order should be 18 months, as the Interim Order would continue to be required pending the resolution of an appeal in the event that the Registrant submits a Notice of Appeal within the 28-day period. This Interim Suspension Order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) on the final determination of that appeal, subject to a maximum period of 18 months.

8. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Emma-Jo Montgomery