David F Kirby

Preliminary Matters

Service

1. The Panel had been provided with a copy of the Notice of Hearing dated and sent by email to the Registrant on 29 January 2025. The Panel was advised to ensure that this Notice contained the correct information relating to the time, date, and mode of hearing and had been sent to the correct address as shown on the HCPC Register more than 28 days in advance of the hearing. The Panel, having satisfied itself that this was the case, concluded that there had been good service in accordance with the Rules.

Proceeding in the absence of the Registrant

2. The HCPC made an application to proceed in the Registrant’s absence. It was submitted that there was public interest in this matter proceeding in the Registrant’s absence given the length of time that had passed since the event in question.

3. There had been minimal engagement by the Registrant with the HCPC process, but in fairness to him the Panel had been provided with a 72-page bundle compiled by the HCPC’s solicitors containing the correspondence and documentation exchanged between the HCPC and the Registrant during the period March-November 2022. There had been no further engagement since.

4. The HCPC drew the Panel’s attention to the fact that a bundle of papers sent by recorded delivery postal service had been signed for with a signature of ‘Kirby’ on 16 April 2025. That bundle related to this matter. It was submitted that the Registrant was therefore aware of the extent of the Allegation against him and that this hearing had been scheduled. In the absence of any reason for his absence or any application for an adjournment, it should therefore be assumed that the Registrant had made an informed decision to voluntarily absent himself from this hearing.

5. The HCPC stated that there was nothing before this Panel to suggest that an adjournment would result in the Registrant appearing at a hearing on a future date. The HCPC stated that it had witnesses ready to give evidence and there was public interest that this matter proceed without further delay.

6. The Panel was advised by the Legal Assessor on the matters which it should take into account when deciding whether to exercise its discretion to proceed. The Panel was referred to the HCPTS Practice Note “Proceeding in the Absence of the Registrant” and the relevant case law underlying that guidance.

7. The Panel concluded that it would proceed. This decision reflected the fact that there had been limited engagement and the Registrant had been made aware that the hearing may proceed in his absence. There had been nothing received in response to the Notice of Hearing served on 29 January 2025. There had been no application for an adjournment nor anything to indicate an intention to attend at some other date. This being the case, the Panel considered that the public interest in proceeding outweighed the Registrant’s interest at this point.

Application to amend the Allegation

8. After hearing the witness evidence, the Panel received an application to amend the Allegation. From the oral evidence of Person B (PB), it had become apparent that there was only one piece of treatment furniture sited within the treatment room. This was a treatment couch that could be moved from a flatbed position into a sitting chair mode. The HCPC stated that it was clear from the oral and written evidence of PB, and the written recollections of Service User A (SUA), that they had both used the terms “table” and “chair” interchangeably. The reference to a table and then a chair within limbs 1(a) and 1(b) was therefore duplication of reference to the same item of furniture being found with detritus upon it.

9. The HCPC stated that to pursue both limbs would be unfair to the Registrant. It was therefore suggested that the HCPC would offer no evidence in relation to limb 1(b). In relation to limb 1(a), it was suggested that the wording be altered slightly by the addition of “or chair” after the word “table”, making it clear that it was one and the same thing.

10. The Legal Assessor advised that whilst there was no express power for the Panel to alter an allegation, there was case law which confirmed that, in the wider public interest and to ensure that there is no under prosecution, a panel may do so. The authority for that could be found in the case of PSA v HCPC & Doree [2017] EWCA Civ 319.

11. The Panel considered that the proposed amendment better reflected the evidence it had heard and the documentation before it. The Panel approved the proposed changes to the wording of limb 1(a). The Panel agreed that to continue with duplication of the same allegation would be prejudicial to the Registrant and so the Panel noted the HCPC’s position of offering no evidence on limb 1(b).

Matters arising during the hearing

12. The Panel noted from the Registrant’s bundle (which the HCPC had, in fairness to him, prepared on his behalf just before the start of the hearing) that there was reference to a bout of illness a few weeks before the events referenced in the Allegation. This bout of illness was not a medical condition; however, references made to it by the HCPC Presenting Officer were considered by the Panel as warranting privacy. This being the case, the Panel requested that the public transcript and decision make no reference to the nature of the illness.

Background

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.

Submissions by the HCPC

16. The HCPC accepted that there had been no direct admissions but that within the Registrant’s bundle there had been some acceptance by him of the factual basis of the events on 28 February 2022. The HCPC restated that the burden of proof at this factual stage was on the HCPC. In the HCPC’s view, the evidence upon which this Panel was making findings was credible and consistent.

Particular 1

17. PB provided the Panel with evidence in relation to what he saw in regard to infection control at the Registrant’s clinic. He described to the Panel the quantity of dead skin and/or nail clippings on the treatment table from a prior service user; that the Registrant was not wearing gloves when treating SUA; and not washing his hands after treating SUA and prior to providing PB with dressings and a bottle of iodine antiseptic. Within his verbal evidence PB stated that the Registrant may have washed his hands before they had come into the room, but he could not see any sign of it.

18. SUA, when responding to questions asked in correspondence on 12 July 2022, corroborated the account of PB. She referred to a pile of nail clippings as “shaped like foot shavings and dead skin” on the treatment table and “there was a lot of dirt and leftovers from other people left on the chair”.

19. SUA, when answering questions from the HCPC on 9 January 2023, stated that the Registrant “didn’t wash his hands or wear gloves”.

20. When Mr Morley, the HCPC Expert Witness, was asked about what should happen with nails and skin after a previous patient has been dealt with, he described that the items should be removed and a surface wipe containing alcohol used to remove any bacteria.

21. The Registrant did not provide a response which detailed what the cleanliness of the treatment was on the date of the incident. He did, however, provide a cleaning log and provided details of changes he had made since the incident was raised; for example, buying a new treatment couch in May 2022.

Particular 2

22. In relation to the provision of a bottle of iodine, in PB’s original complaint to the HCPC dated 11 March 2022, he reported that the Registrant “gave me a brown unlabelled unsealed bottle. I asked him what it was, he said Iodine. The bottle had no instructions, no ingredients listed, no side effects, nothing. He didn’t give us any instructions for use”. Within his witness statement, PB detailed that he was provided with an unsealed bottle of liquid that the Registrant stated was iodine. PB expanded on this issue by stating, when giving verbal evidence, that the Registrant “gave us this bottle, strange there was no label, [the Registrant] opened it and showed us the pipette, there was no box, no list of side effects”. PB also stated that he was not sure what the iodine was for.

23. SUA, within her email responses to HCPC questions dated 9 January 2023, detailed that they had been given an unlabelled glass brown bottle that they were told was iodine. SUA detailed the bottle as being “half empty, dirty and there was no information given about the bottle’s contents”.

24. Both parties agreed that dressings were provided. The clinical notes dated 28 February 2022 detailed that verbal instructions were issued and the Registrant, in his response to questions from the HCPC, confirmed this was the case. However, there was no clinical documentation that leaflets had been provided.

25. In relation to the issue of leaflets, the Panel heard from PB that the only things he had in his hand when he left the Registrant’s practice were some dressings and a bottle of iodine. SUA, within her email responses dated 9 January 2023, replied when asked whether any written information or instructions related to treatment had been provided, that, “None were given. We didn’t ask for any because we didn’t realise it was an option”.

26. The clinical notes dated 28 February 2022 indicated that advice was provided verbally on how to manage the wound and the frequency of dressing changes. Mr Morley referenced that it was not documented in the clinical notes whether any patient information leaflets were provided to SUA or PB.

27. Mr Morley, in his verbal evidence, stated that verbal and written instructions should have been provided in regard to the dressings and the use of iodine. In regard to the dressings, he mentioned that a treatment regime should have been provided. In regard to the iodine, Mr Morley stated that PB and SUA should have been provided with information on what to do with the iodine, how often it should be applied, and how long it should be used for. He described that there should have been a product name, purpose of use, dosage, active ingredients, adverse effects, written information leaflet, and also instructions on how it should be taken, and he highlighted that there are risks of patients ingesting the iodine.

28. In relation to the Registrant’s documentation referencing treatment, the Registrant’s response bundle mentioned that the treatment was for a verruca, not an ingrowing toenail. The Registrant also stated within this documentation that he made a blunder when gaining consent for administration of local anaesthetic by failing to get the consent for needling of a verrucae signed. The Registrant further stated that PB agreed to the proposed treatment for the administration for local anaesthetic in full knowledge that it would allow for the verruca to be needled.

Particular 3

29. In relation to discussion and recording of the nature of the treatment, as identified in limb 2(a), PB provided evidence that the Registrant gave treatment to SUA on 28 February 2022 for ingrowing toenails on both feet and that this was the reason why the appointment was arranged. Within PB’s evidence he did not mention SUA attending for treatment of a verrucae. When answering Panel questions, PB said that SUA’s toenails seemed to be ingrown as he described them “as very red, swollen, weeping and crusted”.

30. SUA, within her account, stated that the Registrant wanted to remove her toenail. PB, within his verbal evidence, stated that they were told that “both toenails would have to come off” and that the Registrant put a needle in near the site of the discomfort, which was a toenail.

31. Within the Registrant’s clinical notes dated 28 February 2022, there was reference to the appointment being for the treating of a verruca. Mr Morley, in his Expert Report (the Report), confirmed that what was contained within the clinical notes referenced the treatment of a verrucae and nothing had been mentioned about removal of a toenail.

32. Turning to the written consent for the needling of the verruca of SUA’s foot, as identified in limb 2(b), Mr Morley referred to the written consent being obtained for the administration of a local anaesthetic, but not for verrucae needling.

33. There was a reference within Mr Morely’s Report that the Registrant, when asked to provide written consent for the verrucae needling, stated that he could not supply the written consent for the verrucae needling [redacted]. The Registrant’s response dated 27 September 2022, which was within his response bundle, made reference to a revised simplified consent form for the administration of anaesthesia and needling of verrucae.

34. In regard to SUA withdrawing consent and this not being documented in the Registrant’s records as identified in limb 3(c), SUA, in her responses dated 12 July 2022 and 9 January 2023, provided the following information:

“I didn’t want him to put the needle in my foot. But he spent ages trying to persuade me to do it. Eventually I said yes. It was in my foot, and I verbally withdrew my consent, and he didn’t withdraw the needle. I said, “You’re not putting it in the other side of my foot,” he said let’s do the other toe instead and I said “No.” I brought my foot up and tried to hide it from him. And he grabbed my foot and tried to pull it back toward him after I’d told him not to touch me. He persisted with this, until my father said “If he carries on, this would be considered an assault on your person.” He didn’t immediately stop.” (12 July 2022)

“…I said ‘No,’ multiple times (about 4 times) and tried to pull away from him. Like I was hugging my knees to my chest and he was trying to pull my legs away from my grasp.” (23 January 2023)

35. PB, in his evidence, detailed that the Registrant attempted to convince SUA to continue treatment. In his verbal evidence, he described that the Registrant pursued relentlessly on after SUA withdrew her consent and described her pulling away repeatedly.

36. In contrast, PB described the treatment provided by the GP as meticulous, considerate, careful, empathetic, clean, professional, and objective, and that the GP would say “do you mind if I do” before touching SUA. PB also told the Panel that the GP did not remove the toenails of SUA and there was no discussion of removing the toenails.

37. Further, PB, within both his statement and his original referral, recalled this event in the following terms:

“Mr Kirby attempted to convince Service User A to continue the treatment saying something to the effect of “If I don’t, when I take the nail off, it’ll really hurt”. I told Service User A in front of Mr Kirby that if Mr Kirby tried to continue the treatment, it would be considered assault. Mr Kirby did not say anything in response to this. After I said this, Mr Kirby continued to grab Service User A’s left foot and pulled it towards him. Service User A then retracted her left foot again and at that point, I stepped in to have the treatment stopped by asking Mr Kirby to stop and he did.” (Witness statement of PB dated 09 May 2024)

“…he took hold of my daughter’s foot and tried to pull it toward him. My daughter withdrew her foot and again said she didn’t want to continue.” (Referral dated 11 March 2022)

38. Further, there was no documentation detailing a difficult or challenging event during the consultation of SUA. Mr Morley detailed that if such an event as described by PB and SUA occurred, there should be a contemporaneous and accurate account of the event recorded.

39. In relation to limb 3(d), the clinical notes dated 28 February 2022 did not make reference to anything other than dressings being provided to PB and SUA.

40. The Registrant, in his response to the HCPC questions dated 9 August 2022, made no reference to supplying SUA or PB with a bottle of iodine. SUA and PB detailed that iodine was provided to them.

Particular 4

41. In relation to Particular 4, the HCPC submitted that it had already referenced the evidence relating to this within its submissions on Particular 3 and the Panel should consider those in relation to this issue.

42. Mr Morley provided evidence within his Report that the act of physically grabbing the foot and drawing it back towards the clinician with the intention of performing a procedure would be a failure of that clinician to respect a patient’s decision to refuse treatment. Within his verbal evidence he described what should happen if a patient withdraws consent. He also provided confirmation that 2.2ml of anaesthetic would be the expected volume of anaesthetic medication for a toenail removal, not 1ml as recorded in the consent form.

43. The HCPC submitted that within the Registrant’s bundle, he stated he could not recall PB or SUA having any discussions between themselves about the advice he gave or the treatments he offered. He also could not recall any moments where any probing questions or concerns were raised by PB or SUA.

Particular 5

44. PB provided evidence in regard to this allegation within his statement. He recorded that the Registrant provided him with a clipboard with a form attached so he could read and sign it. Underneath this was another form, and he could see personal information relating to another patient.

45. Within his verbal evidence, PB stated that when he turned the page of the form he was expected to sign, he was able to identify that the form beneath had the same layout as the form he was asked to sign but that it had someone else’s handwriting and signature on it.

46. Mr Morley had not been asked to provide written evidence on this element of the Allegation, as it had recently been added. Mr Morley was asked within his live evidence for his opinion on this and he gave a fulsome response, which the Panel heard. He stated that it was inappropriate to share another service user’s personal information in this way.

Decision on Facts

47. The Panel was provided with guidance by the Legal Assessor on the matters which it should weigh and balance at this fact-finding stage. She confirmed that the onus was on the HCPC to prove each and every element of the Allegation and that there was no burden on the Registrant to prove or disprove anything. The requisite standard was the balance of probabilities. The Panel was advised by her to refer to the guidance issued by the HCPTS Practice Note relating to evidence given by an Expert Witness.

48. The Panel started its factual deliberations by considering the evidence in the round. As identified in the HCPC’s submissions and highlighted in the Report of Mr Morley, the documentary evidence from the parties was contradictory and confused in regard to the medical condition in question and its treatment. This uncertainty surrounding the nature of the complaint and treatment given raised concerns in the Panel’s mind as to whether the Registrant had mixed up two service users and therefore provided the wrong information in response to the HCPC’s requests for further information.

49. There was an indication that the Registrant may have confused the time of the appointment. PB had stated that he sought an appointment after school finished. The normal time SUA’s school finished was after 3pm, which was why PB was confident that the appointment had been at 4pm. The Panel noted that the Registrant’s documentation indicated the appointment time was 3pm.

50. The Panel noted that the Allegation as originally drafted and subsequently amended made only one reference to a toenail and this was within limb 3(a). The Panel therefore had concerns that the Registrant’s provision of contradictory and confused documentation (which contained no reference to treatment of the toenails) may have arisen from so few references to this issue within the Allegation. However, the Panel noted that before that Allegation had been formulated the Registrant had been provided with a copy of the original referral by PB, from which it was clear that the condition for which treatment had been sought was SUA’s ingrowing toenails. Further, the Registrant had fully engaged and responded to that referral in the early stages of the HCPC process.

51. The Panel had been provided, within a redacted service bundle, with evidence that between the period August 2024 to date, there had been numerous emails and letters sent to the Registrant which had been accompanied by information relating to this hearing, and those would have identified the conflicting elements of the evidence within the bundle. Some of that documentation had been sent by special delivery and successfully received and signed for by someone as ‘Kirby’.

52. Those communications to the Registrant would have provided the Registrant with the statements of PB and SUA and the Report of Mr Morley. Those documents would have allowed the Registrant the opportunity to identify whether he had made a simple error in the documentation he had supplied to the HCPC if that had been the case.

53. There was, however, a reference to SUA’s given first name within one poorly redacted document which contained answers from the Registrant about the purpose of the treatment provided and supplied by him whilst he was still engaging in the HCPC process. This indicated that the Registrant had a clear recollection of the service user involved with PB’s complaint.

54. The Panel was therefore now content that there should be no confusion in the Registrant’s mind that the key issues revolved around the treatment sought for an ingrown toenail. It therefore remained unclear to the Panel as to why the documentation supplied by the Registrant relating to this service user’s treatment was so conflicting and confused in comparison with other evidence before the Panel.

55. Whilst considering the evidence as a whole, the Panel noted the limitation of the evidence before it relating to the detail of what subsequent treatment had been given by the GP. PB had acknowledged that he was not a clinician and had identified the issue as an ingrowing toenail. Indeed, his description of the big toe as “being very red, swollen, weeping and crusted” was consistent with Mr Morley’s description of an ingrowing toenail. There was, however, no confirmation from a third party that this was in fact the case. PB believed that after examination the GP had prescribed antibiotics, but he could not be certain on this point. Provision of antibiotics would not have been appropriate for treatment of a verrucae, as this is a viral infection. The Panel noted that PB was, however, able to confirm that the GP had not administered an injection and there had been no consideration or discussion of the need for further intervention, such as the removal of the toenail.

56. Turning then to the witness evidence, the main factual information came from PB. The Panel had PB’s original referral dated 11 March 2022, which had been prepared less than two weeks after the events in question; his answers to questions from the HCPC in July 2022, again prepared relatively soon after his referral; and his witness statements of 9 May 2024 and 8 September 2024. It had also received his verbal evidence.

57. The Panel considered that the evidence provided by PB had remained consistent throughout and his verbal evidence reflected his written evidence. PB had given considered responses to questions and had not attempted to speculate on matters which were not within his personal knowledge. Within his written and oral evidence, PB had emphasised that he wished to obtain answers to matters which had concerned him about the service he had received and which had gone unanswered when he raised the complaint directly with the Registrant. He stated that he bore the Registrant no ill will and he expressed his sympathy with the Registrant’s position.

58. The evidence from SUA was more limited and reflected the fact that at the time of these events, SUA was still a minor. SUA had provided, through the medium of her father and in response to written questions from the HCPC, two sets of replies. The first was undated but in response to an email dated 12 July 2022, and the other, dated 9 January 2023, was in response to questions posed on 5 December 2022. Her responses corresponded with the factual evidence provided by PB.

59. Information from the Registrant was limited to the period of engagement he had with the HCPC between 11 March 2022 and the provision by him of information relating to maintenance of equipment on 25 November 2022. It was unclear how this last piece of information came into the possession of HCPC.

60. The Panel noted that the Registrant acknowledged and responded to the referral immediately. There were no admissions made but within the documentation presented to the Panel on his behalf, there were indications that he accepted some of the criticisms made and that he had taken some steps to address those.

Particular 1(a) – proven

61. The Panel accepted the evidence of PB and SUA on this issue of the state of the treatment table. PB’s complaint detailing the lack of cleanliness had been made immediately afterwards. Nothing in the Registrant’s responses to the HCPC addressed this specific issue.

Particular1(c) – proven

62. The Panel accepted the evidence given by PB that at no time had the Registrant worn gloves. This was supported by the written responses made by SUA. The Panel noted that there was nothing within the documentation supplied by the Registrant relating to use of gloves within this treatment session.

Particular 1(d) – proven

63. PB was clear that he never saw the Registrant wash his hands at all but accepted that the Registrant may have washed them before he and SUA had entered the room, although he had not seen any evidence that this was the case. As the Allegation related to the Registrant washing his hands after treating SUA, and before then handling the dressing and/or iodine, whether the Registrant had washed his hands prior to starting the treatment was not the issue in question. There was nothing within the documentation provided by the Registrant on this issue of washing hands.

Particular 2(a) and 2(b)(i) to (v) – proven

64. In relation to the stem of the Particular, PB stated that the only things he left the treatment room with were the bottle of liquid and the handful of dressings which had been given to him by the Registrant, and he had no idea how to use either.

65. In relation to limb 2(a), PB’s referral on 11 March 2022 made no reference to being given any documentation during the treatment session. During his verbal evidence PB had been referred to the leaflet relating to “Needling of Verrucae post treatment aftercare” and he stated that, prior to being provided with the document by the HCPC, he had “never seen it before in his life”. This was a leaflet which the Registrant stated as having given to PB.

66. The written response from SUA on 9 January 2023 made it clear that no leaflets were given to her or her father and she further stated “we didn’t ask for any because we didn’t realise it was an option”.

67. In relation to limbs 2(b)(i) to (iv), PB provided a detailed description of the bottle he had been given. PB had emphasised the fact that this bottle had nothing upon it to identify its contents, which he considered strange and concerning. As the Registrant had not told him what the bottle contained, he had to ask what the liquid inside was.

68. PB had been able to recall that there was a pipette within the lid of the bottle and as the bottle was unsealed, he had been able to open it and pull the pipette out. As PB had considerable concerns about the liquid and was unclear what he was supposed to use it for, he had thrown it away.

69. In relation to limb 2(b)(v), PB was clear that he had not been given any written information about how to use the liquid in the unlabelled bottle.

70. The Panel noted that there was nothing recorded within the clinical notes that a bottle of iodine or dressings had been given to PB or SUA, nor was there any reference to any information leaflets being provided. The Registrant stated within his responses to the HCPC that he gave verbal advice and, in response to requests for documentation, had supplied the leaflet for aftercare of verrucae.

Particular 3

71. In relation to the stem of this Particular, there was a requirement to “maintain adequate records” which Mr Morley addressed in his Report by highlighting the deficiencies and inadequacies of what was recorded by the Registrant.

72. The Panel noted that PB, when requested by the HCPC to comment upon the accuracy of the clinical notes, had stated that he could not understand the Registrant’s handwriting. The Panel noted the paucity of the information contained within this service user record and its use of technical abbreviations.

Particular 3(a) – proven

73. There was no reference within the clinical records to the proposed removal of a toenail, nor was there anything noted about a discussion of the Registrant’s recommendation for removal. As recorded above, the documentation relating to this consultation and treatment session was conflicting and confused in relation to the issue of the condition and its treatment.

Particular 3(b) – proven

74. This Particular related to obtaining consent to the needling of a verrucae. There was no record within the clinical notes of the Registrant obtaining such consent.

75. In his response to the HCPC, the Registrant acknowledged that he failed to obtain consent for needling a verruca and had only obtained consent from PB to the administration of anaesthesia. The Registrant informed the HCPC that he had revised his consent form so that it covered the two issues of anaesthesia and treatment.

Particular 3(c) – proven

76. There was nothing within the clinical notes relating to consent nor to its withdrawal.

Particular 3(d) – proven

77. There was nothing recorded within the clinical notes relating to the provision of iodine and how to use it.

Particular 4 – proven

78. PB’s initial complaint outlined this issue. SUA expanded on this aspect within her responses to the HCPC on 9 January 2023, where she was recorded as saying:

“He continued to touch me after I’d withdrawn my consent. He said, ‘Well why don’t we try this foot without anasthetic [sic] and then grabbed and tried to drag it toward him when I’d moved it out of the way.’ He made odd comments about I bet your Dad will never have heard you say things like you’re about to say now. He was holding me very tightly and it hurt. He kept telling me that life-threatening things would happen to me. I didn’t understand the terminology he was using.”

And:

“I think I said, ‘Stop I don’t want you to touch me.’ And I said ‘No,’ multiple times (about 4 times) and tried to pull away from him. Like I was hugging my knees to my chest and he was trying to pull my legs away from my grasp.”

79. PB’s evidence was that the Registrant only stopped when he intervened and told the Registrant that if he continued it would be considered an assault.

Particular 5 – proven

80. There was no mention of this issue in the referral to the HCPC. It was referenced within PB’s witness statement and at the hearing PB gave clear and credible evidence of what he had seen beneath his consent form. He stated that he tried not to read what was written but he could easily discern that it was a signed form in the same format as the one he was signing and related to someone else.

81. This Particular was included within the amended Allegation in March 2025. The Registrant, at that time and since, had not made any observations on this breach of patient confidentiality.

Decision on Grounds

HCPC submissions

82. The Panel noted the HCPC’s written submissions. Those had been incorporated into the transcript of the hearing.

83. In those written submissions, the HCPC identified that the Registrant had, in its view, breached the following:

Standards of Conduct, Performance and Ethics (2016 edition):

1.4 You must make sure that you have consent from service users or other appropriate authority before you provide care, treatment or other services.

2.3 You must give service users and carers the information they want or need, in a way they can understand.

10.1 You must keep full, clear, and accurate records for everyone you care for, treat, or provide services to.

10.2 You must complete all records promptly and as soon as possible after providing care, treatment or other services.

Standards of Proficiency for Chiropodists/Podiatrists (September 2013 edition):

2.6 understand the importance of and be able to obtain informed consent.

8.1 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues, and others.

10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines.

10.2 recognise the need to manage records and all other information in accordance with applicable legislation, protocols and guidelines.

14.4 be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment.

15.2 be aware of applicable health and safety legislation, and any relevant safety policies and procedures in force at the workplace, such as incident reporting and be able to act in accordance with these.

15.4 be able to select appropriate personal protective equipment and use it correctly.

15.5 be able to establish safe environments for practice, which minimise risks to service users, those treating them and others, including the use of hazard control and particularly infection control.

84. The HCPC stated that the misconduct in this case involved:

• effectively managing infection control;

• providing medication without explanation;

• failing to maintain adequate records;

• attempting to continue treatment following withdrawal of SUA’s consent; and

• breaching patient confidentiality.

85. The HCPC considered that Podiatrists occupy a position of trust; patients and their families must be able to trust Podiatrists with the treatment of their loved ones. To practise in the manner described by SUA and PB damaged the reputation of the profession and may cause the public to lose trust and confidence in the Podiatrist profession. PB described the difference in how SUA had been treated when they attended their GP for treatment of the ingrowing toenails.

86. The HCPC maintained that the Registrant had, in all the circumstances of this case, departed from the standards of proficient and safe professional practice, and the facts, as found proven, were sufficiently serious to constitute misconduct.

Panel’s decision

87. The Panel took into account the statements made by the Registrant within his bundle of documentation. In particular, the Panel noted that in the Registrant’s reflective statement and within the information he had supplied to the HCPC, there were details on the improvements he had made to his practice following this complaint by PB. The Registrant had also identified further changes he proposed to make to his practice in the immediate future. These changes focused on infection control measures.

88. The Panel noted and accepted the detailed legal advice it had been given and, as recommended, it referred to the relevant HCPTS Practice Notes. The Panel appreciated that at this stage there was no onus upon the HCPC and the decision on the issue of misconduct was one for the Panel’s judgement.

89. In that regard, the Panel was greatly assisted by the Report of Mr Morley, who had provided his opinion on this issue of misconduct. Mr Morley had identified potential and actual breaches of standards and he had helpfully directed the Panel to the relevant standards applicable to the practice, including those issued by the Royal College of Podiatry.

90. The Panel was reminded by the Legal Assessor that whilst it had received recommendations from the HCPC and the Expert Witness on the standards which are appropriate for consideration, it was a matter for the Panel to make its own independent judgement on this issue of which standards were appropriate and the degree to which there had been a breach. This Panel had in fact identified and applied other standards which it considered were appropriate in some instances.

91. The Panel further noted the advice that a breach of those professional standards did not, of itself, constitute misconduct. The matters found proven should therefore be considered individually and collectively as to whether they amounted to misconduct. The Panel noted the detailed advice it received in relation to the case law on this issue of what constitutes ‘serious misconduct’ or conduct which a fellow practitioner may find ‘deplorable’.

92. The Report prepared by Mr Morley, in which he had addressed the questions asked by the HCPC and considered the terms of the Allegation, had been drafted prior to the amendment of that Allegation in March 2025. The structure of that Report was helpful, dealing with the evidence, providing comment on that evidence, and, where actions fell short of standard good practice, identifying the correct clinical or appropriate administrative process. As previously noted, Mr Morley had also identified the relevant standards. Most of Mr Morley’s conclusions were, of necessity, predicated upon the premise that the evidence of PB and SUA may be accepted by the Panel, a position that had now been reached.

93. Mr Morley was asked where, in his judgement, there was a threshold for his finding as to whether something fell below the standards expected of an autonomous practitioner and those that warranted a finding of falling ‘far below’ the standards expected. His opinion, he said, was based on an assessment of risk. If, for instance, the Registrant’s actions could, or would, have exposed a service user to a risk of harm, then it was unacceptable professional behaviour and constituted serious misconduct. For instance, in his view, the incident involving the dispensing of iodine without guidance on how that liquid should be used could have resulted in actual and serious harm.

94. The Panel, at this stage, was only considering those matters which it had found factually proven. The Panel therefore excluded limb 1(b) from its considerations.

95. In relation to limb 1(a), Mr Morley considered the Registrant’s failure to remove detritus from the treatment couch as falling below the Standards of Proficiency 15.5. This assessment was based upon the fact that the Registrant’s failure to clean the area appropriately could have exposed service users to cross-infection. Mr Morley’s recommendation was that the area should be cleaned appropriately with an effective cleaning solution after every service user treatment.

96. In the Panel’s view, this was a breach of the standards and may constitute misconduct. However, in the absence of any evidence that this was a pattern of behaviour, and therefore was a single example of a lapse in standards, this did not, in the Panel’s view, fall sufficiently below the standards expected as to constitute misconduct.

97. In relation to limbs 1(c) and (d), concerning the wearing of gloves and/or the washing of hands, the Panel noted that the Registrant did not state whether it was his normal practice to do either of those things before undertaking a treatment. This was, in the Panel’s view, a matter that may be a breach of standards 15.4 and 15.5 of the Standards of Proficiency.

98. Failure to wear gloves and wash hands before and after treatment would constitute a breach of standards, as outlined above. The Panel noted that the allegation in this instance related to a specific period of time when treatment had been curtailed and then aftercare dispensed. Further, the medication provided was within a bottle, and the bandages were within a wrapping. In all those circumstances, these were not sufficiently serious breaches as to amount to a finding of misconduct.

99. In relation to limb 2(a), this concerned the provision of guidance, written or verbal, on the application of post-treatment dressing and the frequency of changing those dressings. The Panel’s findings were that the Registrant had neither provided written instructions nor given verbal guidance. Mr Morley and the Panel agreed that this was a falling short of standard 2.3 of the Standards of Conduct and standard 8.1 of the Standards of Proficiency. However, in the Panel’s view, this failure to provide guidance in the particular circumstances of this treatment session did not constitute misconduct on this one occasion.

100. In relation to limb 2(b), the Panel considered the five subsections together as they all concerned the safe handling and use of iodine. The Panel had made a finding that this iodine had been dispensed in an unsealed and unlabelled bottle, with no information relating to its active ingredients or instructions for appropriate dosage provided. Those issues were considered by Mr Morley as a matter of serious concern and ones which, in his opinion, had fallen far short of the standards expected. As Mr Morley pointed out to the Panel, it was not unheard of for a service user assuming that, it being a liquid, the content could be ingested. This failure to identify and guard against the potential risk of misuse, and harm arising from that misuse, could be very serious.

101. This conduct was a breach of standard 2.3 of the Standards of Conduct and standards 8.1 and 15.2 of the Standards of Proficiency.

102. In the Panel’s view those breaches were serious, notwithstanding that this was a single incident. This seriousness reflected the potential risk of harm that could have resulted from the lack of relevant information being provided. In this regard the Panel drew a distinction between its previous decision relating to the failure to provide a leaflet for the use of dressings and the provision of a guidance leaflet relating to medication that could result in serious harm if misused. The Panel therefore made a finding of misconduct.

103. In relation to limb 3(a), Mr Morley indicated that the Standards of Conduct standards 10.1 and 10.3 had been breached, as well as 10.1, 10.2, and 14.4 of the Standards of Proficiency. The Panel agreed with that assessment.

104. The records of SUA’s appointment had no information relating to the treatment of the ingrowing toenails for which the appointment had been made. There was no description of SUA’s complaint about the toenails or about how her toenails presented. There was nothing within the records to indicate that there had been any discussion between the Registrant and PB and SUA in relation to treatment options. Further, there was no reference at all to the potential removal of toenails.

105. The Registrant had, however, written a detailed record of the treatment of a verruca, and within those clinical notes used the patient’s name, so it was purporting to be a note of treatment of SUA. Further, there were other patient records and a consent form relating to the same course of treatment, which was the needling of a verrucae.

106. Good record-keeping is a basic and fundamental element of safe professional practice. In the interests of service users and the practitioner, there is a requirement for a record of any consideration of treatment options. This is so a service user can make an informed decision on treatment. The Panel noted that Mr Morley considered that this failure to record those options and the outcome of any discussion of options was a falling short of the standards expected.

107. The evidence of SUA and PB was that there had been no discussion of options other than the recommended removal of the toenails, which was an invasive and painful procedure. The Registrant had not suggested any alternative approaches which were available. Mr Morley noted in his oral evidence that the possible alternative treatments were no treatment, ‘conservative’ treatment, and removal of the toenails. In an account provided within Person B’s answers to HCPC questions, Person B stated that, “Mr Kirby told my daughter, in her words ‘He wanted to remove the toenail. He said most medical professionals would say this was unwise but I don’t agree with them’”. In the Panel’s view, it was clear that a discussion was held about the treatment which the Registrant proposed, but there was no record of this in the notes. Further, there was no consent form for the treatment of the toenails. On this issue the Registrant’s conduct had fallen far below that which was expected and constituted misconduct. The Panel therefore made a finding of misconduct.

108. Limb 3(b) was a matter on which the Panel made a factual finding based upon the evidence that there had been no consent given for the needling of a verrucae. This was because no consent had been given for the removal of a verrucae. PB and SUA had sought and required treatment for ingrowing toenails.

109. In relation to the issue of consent to treatment, the Panel noted that there could have been implied consent for the treatment, in that the service user may have volunteered their foot for treatment. This was not, however, the same as giving informed signed consent. There had been signed consent for the administration of anaesthesia but not the subsequent process of removal.

110. The Panel noted that in Mr Morley’s view, this failure to obtain written consent for treatment had fallen below the standards expected but not far below. His assessment of risk of potential harm was considered by him to be low. The Panel, on this occasion, disagreed with that assessment of risk of harm arising from failure to obtain written consent. The subsequent actions of the practitioner could have resulted in harm from the Registrant’s poor treatment methods. In the Panel’s view, there could be serious repercussions from this failure to obtain and record consent, and so it concluded that this failure was misconduct.

111. On the basis that that there had been no written consent for the treatment of needling of a verruca, which is an invasive procedure, the conduct alleged would, in this Panel’s view, have fallen far below the standards expected of a practitioner and constituted misconduct; that is, if one accepts that the treatment was required for a verruca.

112. However, the Panel had difficulty in making a finding of misconduct because the consent required in this particular instance was that for the removal of ingrowing toenails. There could not be a breach when the consent required was not the one which the service user could give, had needed, or was seeking. On this basis, the Panel made no finding in relation to this limb of the particular.

113. In relation to limb 3(c), Mr Morley identified that this failure to record the withdrawal of consent to the treatment continuing was a breach of standards 10.1 and 10.2 of the Standards of Conduct and of standards 10.1, 10.2, and 14.4 of the Standards of Proficiency. The Panel agreed with that assessment and the conclusion that the lack of recording fell below the threshold of what is expected of a competent practitioner, but did not constitute misconduct.

114. In relation to limb 3(d), this concerned the failure to make a note of the dispensing of iodine. Mr Morley identified this as a breach of standards 10.1 and 10.2 of the Standards of Conduct and of standards 10.1, 10.2, and 14.4 of the Standards of Proficiency. Mr Morley recorded that this conduct was below the standards expected but did not fall far below. The Panel agreed with that assessment and made no finding of misconduct.

115. In relation to Particular 4, Mr Morley identified that this conduct was in breach of standard 2.6 of the Standards of Conduct and standard 1.4 of the Standards of proficiency. The Panel agreed with that assessment.

116. The Panel accepted that SUA withdrew her consent and the Registrant had then attempted to carry out treatment to the other foot whilst SUA was pulling her foot away. The Panel noted that where a practitioner is met with some reluctance to complete treatment, a calm period of negotiation may be required to rebuild confidence and trust to thereafter allow the practitioner to restart the treatment procedure. If this is not the case, then treatment should stop and the reasons for that cessation recorded.

117. In this instance, the evidence from PB and SUA was clear. The Registrant had ignored and resisted any such cessation and had repeatedly attempted to grab SUA’s foot. Further, PB and SUA recorded that the Registrant had not sought to calmly discuss the situation but had inflamed it by telling SUA of the gruesome potential outcomes for her if he was not allowed to complete the treatment. Those statements had further alarmed and distressed SUA. The description of SUA’s actions was graphic, with her depicted as shrinking away and hugging her knees to her body in an effort to stop the Registrant from grasping her foot. There were repeated verbal requests by SUA for the Registrant to stop, but he did not. The Registrant had persisted until PB intervened and suggested to the Registrant that his insistence on continuing treatment could amount to assault.

118. In the Panel’s view this course of conduct, accompanied by the Registrant’s comments, was totally inappropriate and unprofessional. The Panel and Mr Morley were in accord that this conduct was far below that expected of a practitioner and constituted misconduct.

119. In relation to Particular 5, there was no written opinion from Mr Morley on this matter as his Report predated the amendment of the Allegation and the inclusion of a breach of client confidentiality. Mr Morley, however, was able to provide his verbal opinion at the hearing, and in his view an apology was appropriate and a change to practice to ensure such a situation did not arise again. It was assumed by the Panel that all parties involved should, at the least, be informed of the breach.

120. The relevant standard was 10.3 of the Standards of Conduct. There is a distinction between how a practitioner should protect his patients and how they should treat their patients’ digital information, the difference being the outcomes: one could result in physical harm and the other attract a fine. The Panel noted that the consent form was one-sided and there was no need for the page to be turned over, thereby exposing the other form underneath.

121. The Panel noted that this was not a flagrant act of sharing information and could have occurred as a result of an oversight. Even if it were the Registrant’s normal practice to keep other completed forms below another, so as to keep them together, the accidental turning over of this one-sided form would not be considered as a serious misconduct issue and nor would it be viewed by the profession as deplorable. In the absence of any suggestion that this was an intentional disclosure, rather than an oversight, the Panel made no finding of misconduct regarding this particular.

122. In the judgement of the Panel, with regard to the matters found proven but identified above as not constituting misconduct, even when taken together these did not reach the level of seriousness to merit being categorised as misconduct.

Decision on Impairment

123. The Panel noted that the HCPC had submitted that there was nothing before the Panel which would demonstrate that the Registrant had successfully addressed his failings. The HCPC referenced the changes and improvements which the Registrant had made and identified for future implementation but that related to his communications in 2022 and nothing had been received since in relation to his current practice.

124. The Panel noted and accepted the advice of the Legal Assessor and again referenced the HCPTS Practice Note relating to “Fitness to Practice Impairment”.

125. The Panel had found misconduct in relation to particulars 2(b)(i)-(v), 3(a), and 4. The Panel therefore focused upon those elements of the Registrant’s practice in regard to consideration of current impairment. The Panel noted the principles established in the case of Cohen that the Panel should give consideration as to whether the misconduct found was capable of being remedied, had been remedied, and, going forward, any likelihood of a repetition of that misconduct.

126. The Registrant’s failings can be categorised as:

• storage and supply of medications;

• poor record-keeping; and

• issues relating to communications.

127. In the Panel’s view, those areas of practice are capable of remediation through appropriate training and changes to practice. There was evidence that the Registrant had taken note of elements of the complaints made by PB and SUA and made some modest changes. The photos of his treatment room, taken post the referral, showed this to be the case. There was, however, nothing from the Registrant to show that he had fully addressed his failings. There was no evidence that he had successfully completed any relevant courses or made any further requisite changes to his practice.

128. In relation to the issue of record-keeping, the Panel noted that the Registrant had taken steps to ensure that the failure to obtain consent for treatment could not be overlooked by combining that consent within the form obtaining consent for the administration of anaesthesia. There were no doubt other areas where similar record-keeping changes could be made by the Registrant. Of particular concern to this Panel was that the Registrant had clearly sent to the HCPC clinical records that bore little resemblance to the treatment session for SUA. As discussed above, it was possible that the Registrant had sent in the notes for another service user, but this mix-up of two service users was not supported by SUA’s name appearing in a document provided by the Registrant which had been poorly redacted. The only explanation that this Panel was able to identify for such confusion was that the Registrant was not writing up notes until at some distance from the events. Contemporaneous notes of treatment is a fundamental of good record-keeping and the Registrant had not provided the Panel with evidence that this part of his practice had been improved.

129. In relation to the issue of insight, there was nothing before the Panel to show further development of insight to these events. The reflective piece of writing produced in 2022 focused upon what he appeared to see as the true nature of the complaint, which was cleanliness, rather than the potential impact that this treatment session had upon the two individuals involved.

130. The Panel therefore concluded that there had been no remediation and there was a likelihood of a repetition of the misconduct found in the future. The Panel therefore made a finding of current impairment on the personal component of its decision.

131. Turning to the public element, the Panel noted that as a direct result of their experience during the treatment session, SUA and PB had not sought further treatment from a Podiatrist but had instead sought the help of their GP. This indicated the depth of their mistrust of the profession following this first and only encounter with a Podiatrist. Members of the public may have formed the same view if they had been treated the same way.

132. The impact of the Registrant’s actions goes further than one service user and his own professional reputation. A member of the public, with the knowledge that the Registrant had sought to continually grab the foot of a child so that he could carry out a painful and intrusive procedure, would be rightly concerned. Dispensing of toxic liquids without anything to indicate that it could be potentially poisonous if drunk would again cause public alarm and make members of the public pause before seeking the services of this profession.

133. The reputation of the whole profession had therefore been undermined by the Registrant’s action. The Panel therefore also made a finding of impairment on the public component. Accordingly, the Panel made a determination that the Registrant’s fitness to practise is impaired on both the personal and the public components.

Decision on Sanction

HCPC submissions on sanction

134. The HCPC, at this stage in proceedings, did not, as a matter of practice, make submissions as to the level of sanction to impose, but took the opportunity to draw the Panel’s attention to the aggravating and mitigating factors in this case which, in the HCPC’s view, may inform the Panel’s decision.

135. The HCPC helpfully directed the Panel to the sections of the HCPC Sanctions Policy which it considered were relevant to this case. Those were contained within:

• Paragraphs 51 to 55, relating to lack of insight, remorse, and apology; lack of remediation; and the potential of service user harm.

• Paragraph 67, relating to abuse of professional position.

• Paragraph 73 and 74, relating to vulnerability.

136. The Panel was also reminded by the HCPC of the Registrant’s personal situation at the time of these events and which may have impacted on his performance. The HCPC also highlighted the ways in which the Registrant had changed his practice with regard to premises and equipment and revised his consent forms following receipt of the HCPC referral.

Panel’s decision

137. The Panel noted and accepted the detailed legal advice which it had been given. As advised by the Legal Assessor, the Panel referred to the Sanctions Policy issued by the HCPC. The Panel appreciated that any restriction placed upon the Registrant was not intended to be a punishment, but to represent the least restrictive measure necessary to ensure service user protection. The Panel should also be aware that whilst sanctions are not intended to be punitive, there may be a punitive impact upon a registrant financially and professionally. In undertaking this task, the Panel was balancing the interests of the public and the profession with that of the Registrant.

138. The Panel started its deliberations by identifying the mitigating and aggravating factors in this case.

Mitigating factors

• The Panel noted that there had been nothing previously recorded against the Registrant and this was therefore the first time, in what appeared to have been a lengthy professional career, that he was before his Regulator;

• The Registrant appeared to have accepted the element of the complaint made by PB relating to infection control by, for instance, the purchase of a new treatment couch.

Aggravating factors

• Lack of insight into the impact that the Registrant’s conduct during the treatment session may have had upon PB and SUA;

• Poor communication skills, such that the situation relating to withdrawal of consent had escalated and became confrontational with PB and SUA;

• Lack of consideration of treatment options and recording of those options;

• Poor record-keeping, such that the Registrant had submitted a service user record which contained information relating to a different treatment session;

• Attempts to continue treatment when consent had been removed and when this course of action was obviously causing distress to SUA;

• Not identifying the serious risk of harm arising from supplying liquids in an unsealed, unlabelled bottle, and not accompanied by any guidance on the use of that liquid. There was potential for harm if the liquid was not used appropriately—for example, being ingested;

• SUA was a vulnerable minor despite being in the company of her father;

• An abuse of the practitioner and service user balance of power. PB and SUA were seeking and relying upon the Registrant’s professional skills and the Registrant had, through his imposition of a treatment option and insistence on pursing that treatment, retained that power imbalance.

139. The HCPC submitted that the Registrant had instantly and fulsomely engaged with the HCPC when the referral was made in 2022. The Panel noted, however, that there is an onus on a registrant to engage with their regulator. The Panel had no information as to why that engagement had ceased before the end of 2022.

140. The Registrant had stated in his documentation that he was willing to attend a course on consultations and communications; however, the Panel has nothing before it to show that this course was in fact completed successfully.

141. The Registrant had given as a reason for his conduct and/or poor performance the fact that he was suffering from ‘brain fog’ that day due to a recent illness and that this should be considered as a mitigating factor. The Panel did not consider this to be the case. The Panel noted that it did not have any evidence as to how and when that illness had taken place. The Panel had no information as to any long-term effects from that illness and whether it may have impacted on the Registrant’s ability to function as an autonomous practitioner. In this regard the Panel noted that registrants are responsible for their wellbeing and that practising when not in a fit condition to do so places service users at an increased risk of harm resulting from poor performance. In the two alternatives of the treatment referenced in this case, removing toenails or needling of a verruca, both were invasive procedures that required the Registrant to be able to work effectively, competently, and safely.

142. Having noted those issues, the Panel then considered, in ascending order, the possible restrictions that could be placed upon the Registrant. It considered that in this case, taking no action would not be appropriate nor proportionate and would provide no service user protection.

143. The option of mediation may have been an option at an earlier stage. The Panel noted that in October 2022, the Registrant had contacted PB directly and offered a meeting. This invitation had been interpreted by PB as an attempt by the Registrant to circumvent the HCPC regulatory process and so did not respond. The Panel noted that even if PB had been willing to meet, this option for disposal of the case would not have addressed the practice issues this Panel had identified.

144. In relation to a Caution Order, the Panel considered that this was not a suitable sanction in a case where there was potential for service user harm. The Panel noted the contents of paragraph 101 of the HCPC Sanctions Policy and concluded that such an order was not appropriate in this case where there was a likelihood of a repetition of the conduct complained of and of placing service users at risk. Further, such an order would not address the public interest in this instance.

145. In relation to the imposition of a Conditions of Practice Order, the Panel considered that if there had been continued engagement by the Registrant, this level of sanction may have been a workable option by addressing matters such as engagement of a supervisor, periodic review of his record-keeping, and the completion of appropriate training. However, in the absence of any indication that the Registrant would be willing and able to comply with such conditions, the Panel had to discount imposing such an order.

146. The Panel considered that the only appropriate and proportionate sanction in this case was a period of suspension. In reaching this decision, the Panel gave some consideration to the option of a striking off order. Having referred to the HCPC Sanctions Policy, which indicates that a striking off order is appropriate for serious, persistent, deliberate, or reckless acts, it decided that this sanction was not appropriate in this case given that this was a one-off incident. The Panel came to the decision that such an order would, in all the circumstances, be disproportionate.

147. In imposing a period of suspension the Panel identified that the measures which the Registrant could undertake to address his failings were capable of being concluded within a relatively short period of time. Training, reflection, and changes in practice could be completed within a period of six months, this being ample time for the Registrant to fully remediate if he engaged and focused on that task. The Panel therefore chose this period of six month to provide the Registrant with the impetus to address his failings. The Panel also decided not to exercise its discretion to limit the Registrant’s ability to call for an early review.

148. In imposing this period of suspension, the Panel took into account the impact on the registrant financially and professionally and considered that it was, in the circumstances, a fair balance between his interests and that of the wider public interest. In terms of that public interest, the Panel considered that it was served by the imposition of this order, as it reflected the fact that this was one incident of a complaint in what appeared to be an otherwise blameless career.

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:

• producing a reflective piece which addresses the areas identified in the Panel’s decision;

• providing details of training courses attended and how it has impacted his practice;

• identifying changes made to his practice which address the issues arising from the complaint; and

• providing details of how he has maintained his Continuing Professional Development (CPD).

That the Registrar is directed to suspend the registration of Mr David F Kirby for a period of 6 months from the date this Order comes into effect.

This order will be reviewed again before its expiry.

Interim Order

Service

1. The Panel satisfied itself that there was reference to the possibility of an application for an interim order being made within the Notice of Hearing. That Notice of Hearing had been considered on day one of this hearing for the accuracy of the information relating to this hearing. The Panel therefore considered that there had been good service.

Proceeding in absence

2. The HCPC stated that there had been no further indication from the Registrant that he would be willing to re-engage in this HCPC process at any point. As the Panel would have noted on day one of the hearing, there had been no engagement by the Registrant since the end of 2022, despite numerous efforts being made the HCPC. For those reasons, the HCPC considered that no purpose would be served in adjourning consideration of the interim order application.

Panel decision to proceed in the Registrant’s absence

3. As the HCPC had highlighted, there was nothing to support a view that the Registrant would attend should there be an adjournment. The Panel considered that this was a case where an adjournment would not be in the public interest at this time, where the Panel had made a final determination that a Suspension Order for six months was required for public protection and in the wider public interest. The Panel therefore decided that it would proceed in the Registrant’s absence.

Interim Order Application

4. The HCPC made an application for an Interim Suspension Order for a period of 18 months. This application was made to ensure that the Registrant would be prohibited from practising during the 28-day appeal period, and should there be an appeal by the Registrant, the interim order would be sufficiently long to cover the time within which such an appeal would be determined.

5. In the HCPC’s view, an interim order was necessary in this instance where there had been findings of misconduct such that a Suspension Order was considered by the Panel as the proportionate and appropriate sanction. In the HCPC’s view, the making of an interim order would not only provide public protection but would also be in the wider public interest.

6. The Panel sought and accepted the advice of the Legal Assessor. She advised that under Article 31(1)(c), the Panel has a discretionary power to impose an interim conditions of practice order or interim suspension order where there has been a determination under Article 29(5)(b), namely the imposition of a Suspension Order.

7. The Panel noted that an Interim Order can be imposed on one of three grounds:

• of being necessary for public protection; or

• the wider public interest; or

• in the Registrant’s interest.

8. The application by the HCPC was for public protection and public interest.

Panel’s decision

9. Within the guidance in the HCPC Sanctions Policy, a situation that would support the imposition of an interim order included that where “the allegation is so serious that public confidence in the profession would be seriously harmed if the registrant was allowed to remain in unrestricted practice”. In the Panel’s view, this was the situation in this case, where the basis for the Panel’s decision to impose a Suspension Order was that the public would be rightly concerned if the Registrant were allowed to continue in practice given the failings identified.

10. The Panel concluded that in this case, where there was a high risk of repetition of the misconduct complained of and in the absence of any evidence of steps taken to remediate, an interim order was necessary.

11. The Panel considered that the imposition of an Interim Conditions of Practice Order would not be appropriate nor proportionate for all the reasons set out in the Panel’s final determination.

12. The Panel therefore concluded that an Interim Suspension Order for 18 months was necessary on the grounds of public protection and in the wider public interest. The Panel also concluded that 18 months was necessary to allow any appeal to be determined.

13. In imposing an Interim Suspension Order, the Panel considered the impact that this measure would have on the Registrant professionally and financially. The Panel determined, however, that the need for public protection and the wider public interest outweighed the Registrant’s interests in this instance.

14. The Panel made 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.

15. 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 David F Kirby

Date	Panel	Hearing type	Outcomes / Status
12/05/2025	Conduct and Competence Committee	Final Hearing	Suspended