David F Kirby
Profession: Chiropodist / podiatrist
Registration Number: CH14206
Hearing Type: Review Hearing
Date and Time of hearing: 10:00 05/12/2025
End:
17:00 05/12/2025
Location:
This hearing is being held remotely via video conference
Panel: Conduct and Competence Committee
Outcome: Suspended
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Allegation
As a Registered Podiatrist (CH14206):
1. On 28 February 2022, you did not effectively manage infection control in that;
a. There was a quantity of dead skin and/or nail clippings on the treatment table from a prior Service User;
b. The treatment chair Service User A sat on contained detritus from a prior Service User;
c. You did not wear gloves whilst treating Service User A;
d. You did not wash your hands after treating Service User A and prior to providing Person B with dressings and/or a bottle of Iodine antiseptic.
2. On 28 February 2022, you issued to Service User A and/or Person B, a bottle of iodine antiseptic and/or dressings without describing their purpose in that;
a. You did not provide any written and/or verbal instructions for how to apply and/or change the dressings;
b. In relation to the iodine antiseptic, you did not provide any or all of the below:
i. The product name and purpose;
ii. Dosage and/or usage instructions;
iii. Ingredients;
iv. Warnings and/or potential adverse side effects and/or;
v. Patient information leaflet.
3. On 28 February 2022, you did not maintain adequate records for Service User A in that you did not record:
a. Your conversation with Service User A and/or Person B about the removal of Service User A’s toe-nail;
b. Service User A and/or Person B’s written consent to needling of verrucae on Service User A’s foot;
c. Service User A’s withdrawal of consent;
d. The iodine antiseptic given to Service User A and/or Person B for post-operative care.
4. On 28 February 2022, you attempted to continue to treat Service User A’s foot following the withdrawal of their consent.
5. On 28 February 2022, you breached patient confidentiality in that you caused or allowed Person B to have sight of personal information relating to another patient.
6. The matters set out in Particulars 1 – 5 above constitute misconduct.
7. By reason of the matters set out above, your fitness to practise is impaired by reason of misconduct.
Finding
Preliminary Matters
Service
1. The Panel was provided with a Service Bundle of papers, from which it noted that a Notice of Hearing dated 6 November 2025 had been served on the Registrant by email at his registered email address at 16.59pm that day. The Panel was also provided with confirmation from Microsoft Outlook timed at 17.03pm that delivery of the email was “complete” The HCPC also provided a certificate demonstrating the Registrant’s registered status and his registered email address.
2. The Legal Assessor referred the Panel to the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (as amended) (“the Rules”). He also referred the Committee to the HCPTS’ Practice Note, Service of Documents.
3. The Panel noted that the obligation upon the HCPC in serving the Notice was to send notice to the Registrant, at his registered address. The Panel was satisfied that proper notice of at least 28 days had been provided to the Registrant and that service had been effected in accordance with the Rules.
Proceeding in the Absence of the Registrant
4. The Registrant did not attend the hearing and was not represented. Ms Sampson applied to the Panel to proceed in the absence of the Registrant and/or any representative on his behalf. She referred the Panel to the significant efforts that had already been made by the HCPC to encourage the Registrant to engage since the previous hearing in May 2025 namely: an e-mail from a paralegal with the HCPC, dated 23 September 2025, which drew the attention of the Registrant to the suggestions by the previous panel as to what further information might be of use to this Panel at the review hearing; a follow up e-mail in the same terms dated 27 October 2025; two attempted calls to the Registrant by the paralegal on 3 and 12 November 2025, which were not answered by the Registrant but at which messages were left inviting him to call back; a note prepared by the paralegal regarding a telephone conversation she finally had with the Registrant on 20 November 2025 which recorded that “the registrant confirmed he has received the hcpc correspondence and will be in touch within the next week to respond to the email, and notify us whether they are attending”; and 2 emails from today's hearings officer regarding participation in the hearing, dated 28 November and 1 December 2025. Ms Sampson submitted that the Registrant was therefore fully aware of the Notice of hearing, which warned that the Panel might proceed in his absence, should he not attend the hearing.
5. Ms Sampson referred to the factors from R v Hayward, Jones [2002] UKHL 5 in the Court of Appeal and House of Lords. She submitted that, on consideration of the relevant factors, the Panel should determine that the public interest in conducting proceedings in an expeditious manner meant that the hearing should proceed. In addition, Ms Sampson maintained that, not only because of the efforts to contact the Registrant since the substantive hearing in May 2025, but also as the Panel had found good service, it was clear that reasonable steps had therefore been taken by the HCPC to serve the notice of hearing on the Registrant. Further, she submitted that the Registrant had clearly decided not to attend the hearing (against a background of non-engagement with the HCPC since November 2022, which included his absence at the hearing in May 2025) and therefore an adjournment would serve no useful purpose and would simply prolong matters unnecessarily, which would have an impact upon the public interest in concluding matters expeditiously. Finally, Ms Sampson emphasised that this was a statutory review which had to take place, as the suspension order was otherwise due to expire on 13th December 2025, the Registrant would be free to practise unrestricted. Ms Sampson therefore argued that the Registrant should not be allowed to frustrate the process by his non-attendance and therefore submitted that the public interest was overwhelmingly in favour of proceeding in his absence.
6. The Legal Assessor advised the Panel that it had discretion to proceed in the absence of the Registrant or his representative, pursuant to Rule 11. The Panel had to be satisfied that all reasonable efforts had been made to bring the hearing to the Registrant’s attention. The Panel then had a discretion to exercise, as the courts had stated, with ‘utmost care and caution’. He referred the Panel to the HCPTS’ Practice Note, Proceeding in the Absence of the Registrant and the guidance of the courts from R v Jones [2002] UKHL5 and GMC v Adeogba [2016] EWCA Civ 162.
7. The Panel was satisfied that, as proper notice of the hearing had been served on the Registrant (against a background of numerous attempts to engage with him) all reasonable steps had been taken. The Notice had been served more than 28 days before the hearing and had been supplemented, not only by telephone contact on 20 November 2025, but also by two subsequent reminder emails sent to the Registrant by today’s Hearings Officer referred to above, to which there had been no response.
8. The Panel was satisfied that the Registrant was, or ought to be, aware of the hearing. The Panel took into account that no request for an adjournment had been made by the Registrant. In light of his previous non-attendance in May 2025 and his non-engagement with the HCPC since November 2022, the Panel considered that he was therefore unlikely to attend should the hearing be adjourned. The Panel particularly also took into account that the hearing had been arranged so that the Suspension Order imposed for a period of 6 months on 16 May 2025, (which was therefore due to expire on 13 December 2025) could be reviewed and that therefore there was an element of urgency in the process. Although the Panel acknowledged that the Registrant would be disadvantaged by his non-attendance, it determined that he had been provided with an opportunity to attend and had neither attended nor provided any submissions.
9. The Panel therefore decided to proceed in the Registrant’s absence.
Background
10. The Panel noted the background in this matter as set out in the previous panel’s determination, as follows:
“13. The Registrant is a registered Podiatrist and was practising as a Podiatrist within his own practice, entitled ‘Alcester Podiatry Chiropody’ in Alcester, Wiltshire at the time PB attended the Registrant’s practice with his daughter (SUA) on 28 February 2022.
14. As a result of the events experienced by PB and SUA, PB made a complaint to the practice using its online portal to do so on the same day, 28 February 2022. PB did not receive a response to this complaint.
15. On 11 March 2022, the HCPC received a referral from PB. The referral raised concerns about the Registrant’s treatment of SUA. The concerns related to the cleanliness of the Registrant’s practice; communication with SUA and PB; treatment of SUA without wearing gloves or washing of hands; attempts to continue treatment after consent was withdrawn by SUA; and providing iodine to PB with no instructions on its use. These matters are reflected within the Allegation set out above.”
11. Following the HCPC investigation, the matter proceeded to a substantive hearing in May 2025, which the Registrant did not attend, the Substantive Hearing Panel found the Particulars of the Allegation (as set out above) proved, and imposed a Suspension Order for a period of 6 months upon the Registrant, which expires on 13 December 2025.
12. That Panel also indicated that:
“…149. Whilst this Panel cannot restrict or impose any limitations on a future reviewing panel, the Registrant should be aware that the reviewing panel may be assisted by him:
i. producing a reflective piece which addresses the areas identified in the Panel’s decision;
ii. providing details of training courses attended and how it has impacted his practice;
iii. identifying changes made to his practice which address the issues arising from the complaint; and
iv. providing details of how he has maintained his Continuing Professional Development (CPD).”
13. However, no further information has been received from the Registrant.
Submissions
14. Ms Sampson reminded the Panel of the factual background to the case, the decision of the previous panel, and the Panel’s powers as to extending, continuing, varying or revoking the current Order. She referred the Panel to the HCPTS Practice Note (August 2025) on “Review of Article 30 Sanction Orders” and submitted that the key issue to consider was what had changed since the Order was imposed. The reviewing panel’s task was to:
“14. The key issue which needs to be addressed is what, if anything, has changed since the current order was imposed or last reviewed. The factors to be taken into account include:
a. the steps which the registrant has taken to address any specific failings or other issues identified in the previous decision;
b. The degree of insight shown and whether this has changed;
c. The steps which the registrant has taken to maintain or improve his or her professional knowledge and skills;
d. Whether any other fitness to practise issue has arisen;
e. Whether the registrant has complied with the existing order and, if it is a condition of practise order, has practised safely and effectively within the terms of that order.
15. The reviewing panel's task “is to consider whether all the concerns raised in the original finding of impairment...[have] been sufficiently addressed”. As the decision in [Abraheam v GMC [2008] EWHC 183 (Admin)] indicates, in practical terms this places a persuasive burden on the registrant to demonstrate at a review hearing that he or she has fully acknowledged the deficiencies which led to the original finding and has addressed that impairment sufficiently through insight, application, education, supervision or other achievement...”
15. However, Ms Sampson submitted that there had been a total absence of engagement on the Registrant’s part and there was no further update or any other information from or about him. In particular, he had not addressed the recommendations made by the previous panel. There was, accordingly, no evidence of improvement, insight or remediation. The Registrant had failed to take the opportunity: to engage; to remedy the concerns; or to show any renewed commitment to the profession. Ms Sampson therefore contended that the Registrant had not discharged the persuasive burden to address the concerns about his fitness to practise.
16. Ms Sampson therefore submitted that the Registrant’s fitness to practise remained impaired on a personal basis because the risk of harm to the public remained high in the absence of any new information about his practice. She further contended that a finding of impairment was necessary in order to maintain public confidence in the profession.
17. In relation to sanction, Ms Sampson reminded the Panel to consider not only the need to balance the rights of the Registrant against the duty to protect the public, but also the wider public interest, together with the perception of the profession and regulatory process. She referred the Panel to the Sanctions Policy and reminded it that the full range of sanctions was available, including a Striking Off. Ms Sampson maintained that taking No Action or issuing a Caution against the Registrant would not be sufficient given the likelihood of repetition and in any event would not address the public interest. In relation to a Conditions of Practice Order, Ms Sampson submitted that the Registrant’s lack of engagement over the past three years militated against the requirement for him to be willing to comply with any conditions and also questioned whether he wished to return to the profession.
18. Ms Sampson therefore submitted that the only viable sanctions were either a short extension of the existing suspension order or a striking off order. In relation to the suspension order, she reminded the panel about paragraph 121 of the sanctions policy which states:
“121. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”
19. Ms Sampson maintained that a Suspension Order was unlikely, given the background of this matter, to produce any improvement. The HCPC had already made significant efforts to encourage the Registrant to engage with the process; there was no evidence that he had used the period of the 6 month suspension to address any of the concerns; and therefore, a further suspension order would not be in the public interest or maintain public confidence in the profession. A further suspension therefore served no useful purpose and consequently, the most appropriate sanction was a Striking Off order.
20. Accordingly, Ms Sampson referred the Panel to paragraphs 130 and 131 of the Sanctions Policy, which state:
“130. A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive):
• dishonesty;
• failure to raise concerns;
• failure to work in partnership;
• discrimination;
• abuse of professional position, including vulnerability;
• sexual misconduct;
• sexual abuse of children or indecent images of children11 (see paragraphs 78–79 and 87–89);
• criminal convictions for serious offences (see paragraphs 80–92); and
• violence (see paragraph 93).
131. A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:
• lacks insight;
• continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or
• is unwilling to resolve matters.”
21. Ms Sampson argued that the Registrant “lacks insight” and appears to be “unwilling to resolve matters”, particularly as there was no evidence of any remediation nor any explanation from the Registrant as to why he had failed to engage. This apparent unwillingness to resolve matters was incompatible with his obligations as a professional. Accordingly, a Striking Off order was the appropriate and proportionate sanction in this case.
22. Having said that, Ms Sampson confirmed that an alternative to a Striking Off order was to extend the current Suspension Order by a short period of three or six months to give the Registrant an opportunity to demonstrate that he was willing to engage with the HCPC, and with the Panel, and to start the process of remediation.
23. In answer to a question from the Panel, Ms Sampson confirmed that there was no suggestion that the Registrant had not complied with the Suspension Order and therefore that the HCPC had no concerns regarding compliance.
Decision
24. In reaching its decision, the Panel considered the previous panel’s decision and had regard to the principles set out in the HCPTS Practice Notes entitled “Fitness to Practise Impairment” and “Review of Article 30 Sanction Orders”. The Panel accepted the advice of the Legal Assessor, who confirmed that the Panel would be entitled to presume impairment and see whether there have been any changes in the Registrant’s situation since the last hearing. Further, it was to have regard to the HCPTS’ “Sanctions Policy”.
25. The Panel also had regard to the case of Abrahaem v GMC 2008 EWHC 183 (Admin) in which it was held that there is in practical terms a “persuasive burden” on a registrant to address the concerns that were highlighted by previous panels. This required the Registrant to acknowledge the deficiencies which led to the original findings and to address impairment through evidence or material demonstrating insight, application, education, supervision or some other achievement.
26. The Panel noted that the Registrant had not submitted any such evidence or material to indicate any insight or reflection, or any indication that he had addressed his misconduct. He had not responded to any of the recommendations made by the previous panel, notwithstanding the numerous reminders sent by the HCPC prior to the current hearing.
27. Accordingly, in answer to the key question, namely “what had changed since the Order was imposed” the Panel had little hesitation in concluding that nothing had changed. There was no evidence of remediation and therefore there was still a risk of repetition.
28. The Panel therefore concluded (as the Legal Assessor indicated that it was entitled to do) that the Registrant remained impaired in relation to both the personal and the public components of impairment. It therefore moved on to consider what the appropriate sanction should be in this case.
Decision on Sanction
29. The Panel considered the Sanctions Policy of the HCPTS and accepted the advice of the Legal Assessor that a sanction should be the least that is necessary to ensure public protection. The Panel reminded itself that the purpose of a sanction is not to punish the Registrant and that a sanction must be reasonable and proportionate.
30. The Panel determined that the nature of the concerns in this case were too serious to make no Order.
31. The Panel considered whether to impose a Caution Order but decided that it also was inappropriate because a Caution Order would not provide sufficient public protection nor address the Public Interest concerns.
32. The Panel determined that a Conditions of Practice Order was also not appropriate because the Registrant had not shown current insight and had not engaged with his regulator to any meaningful degree in the last three years. A Conditions of Practice Order would therefore not be workable or verifiable in the absence of any engagement on the part of the Registrant.
33. The Panel then considered an extension of the current Suspension Order. It noted, however, that, since the imposition of the suspension order in May 2025, and even since November 2022, the Registrant had failed to engage with the process (other than on one fleeting occasion) or to demonstrate insight, reflection and remediation. The Panel found this frustrating as it would have appreciated hearing from the Registrant, especially considering that his misconduct, although serious, essentially amounted to one isolated incident in an otherwise unblemished career spanning what it understood was a significant number of years.
34. The Panel was aware that, in the absence of a significant response from the Registrant, it was entitled to consider the alternative to an extension of the Suspension Order, namely that of a Striking Off order, as suggested by Ms Sampson. It noted, in particular, that the Sanctions Policy, in paragraph 131, stated:
“A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:
• lacks insight…or
• is unwilling to resolve matters.”
35. The Panel considered that a persuasive argument could therefore be made that, as the Registrant, by his failure to engage to any, or any significant, degree with the HCPC, continued to lack insight and/or was unwilling to resolve matters, a Striking Off order could be justified. These matters had first arisen in 2022, almost four years ago, so the Registrant had arguably had sufficient time to address his failings. The Panel felt entitled to wonder what benefit there would be to the profession and/or to the public by further extending the suspension order.
36. However, the Panel also noted paragraph 130 of the Sanctions Policy, which stated: “A striking off order is a sanction of last resort…”. The Panel noted that: the suspension had only been effective for six months; the Registrant had otherwise had an unblemished career; although serious, the Registrant’s misconduct represented what could be colloquially described as a “bad day at the office” and was, on the face of it, easily remediable; and that the Registrant had not completely ignored the HCPC but had responded to its Case Manager on at least one occasion. Accordingly, the Panel considered that the point of no return had not been reached and that the Registrant should be given a further opportunity to address his failings.
37. Accordingly, the Panel concluded that an extension of the current order by a further six months (which effectively meant that he would have been suspended for a year in total) was the proportionate and appropriate sanction in this case. It would come into effect at the expiry of the current Suspension Order on 13 December 2025.
38. The Panel further directs that there be a review of the suspension order before it is next due to expire on 13 June 2026. Bearing in mind its observations above about the possibility of striking off the Registrant on this occasion, the Panel would remind the Registrant that a future reviewing panel may well consider that as a sanction, particularly if the Registrant continued not to engage with the process.
39. In any event, the Panel considered that the reviewing panel may be assisted by the following:
• The Registrant’s attendance at the hearing;
• A written reflection from the Registrant regarding this and the previous Panel’s findings, in particular an indication of his long-term intentions about continuing to practice as a Podiatrist/Chiropodist;
• Evidence of remediation including any training or CPD focused on the misconduct found proved;
• Any testimonials from work colleagues (from either paid or unpaid work)
Order
ORDER: The Registrar is directed to suspend the registration of Mr David Kirby for a further period of 6 months, from the date the current suspension order expires, namely from 13 December 2025.
Notes
This Order will be reviewed again before its expiry on 13 June 2026.
Hearing History
History of Hearings for David F Kirby
| Date | Panel | Hearing type | Outcomes / Status |
|---|---|---|---|
| 05/12/2025 | Conduct and Competence Committee | Review Hearing | Suspended |
| 12/05/2025 | Conduct and Competence Committee | Final Hearing | Suspended |