Gary J Denby

Preliminary Matters

Service of the Notice of Hearing

1.    The Panel was provided with a copy of an unredacted email sent to the Registrant on 10 September 2025. The email was sent to the Registrant’s email address and informed him of the date and time of this hearing. It also informed him that the hearing would be conducted remotely by the use of Microsoft Teams. The Panel was satisfied that this communication constituted a valid Notice of Hearing.

Proceeding in the Absence of the Registrant

2.    After the Panel announced its decision that a valid Notice of Hearing had been served on the Registrant, the Presenting Officer applied for a direction that the hearing should proceed in the Registrant’s absence. In making this application, the Presenting Officer drew the attention of the Panel to communications from the Registrant in which he stated that he would not be attending the hearing.

3.    The Panel accepted the advice it received from the Legal Assessor on the topic, and it also heeded the guidance contained in the HCPTS Practice Note entitled, “Proceeding in the Absence of the Registrant”. Accordingly, the Panel proceeded on the basis that, to accede to the HCPC’s application, it must be satisfied that it would be fair in all the circumstances to conduct the hearing in the absence of the Registrant.

4.    In reaching its decision, the Panel considered the following matters to be relevant to the decision:

• an Allegation having been referred to the Conduct and Competence Committee by the Investigating Committee, that Allegation must be decided at some stage; it cannot be left in abeyance for evermore;
• the Allegation concerns events that are said to have occurred well over four years ago. The passage of time to date has already been far too long, and further delay would be highly undesirable. Compelling reasons would be required to justify any further delay; and
• the Registrant has made it abundantly clear that he does not intend to participate in the hearing. Furthermore, he has not suggested that he might participate at some point in the future were the matter not to proceed at the present time.

5.    In the judgement of the Panel, the factors identified in the preceding paragraph have the consequence that the public interest in the hearing proceeding outweighs any disadvantage arising from the absence of the Registrant. The Panel was satisfied that it was fair to the Registrant to direct that the hearing should proceed in his absence, particularly given the fact that the Panel was provided with his extensive written representations (details of which will be given below). For these reasons the Panel made the direction sought by the HCPC.

The HCPC’s Application to Discontinue Elements of the Allegation

6.    Before opening the case, the Presenting Officer made an application to discontinue two elements of the factual case hitherto advanced by the HCPC against the Registrant. As referred for hearing:

• Particular 2 alleged, “On or around 28 July 2021, you did not wear appropriate Personal Protection Equipment when treating Service User A. In that you did not wear;
  
  • A face mask
  • Gloves”

•    Particular 4 alleged, “You did not raise safeguarding concerns about Service User A in a timely manner.”
The HCPC’s application was to remove the reference to gloves from Particular 2 and to remove Particular 4 in its entirety. The submission of the Presenting Officer was simply that there was no evidence available to the HCPC which could enable a Panel to find these two contentions proven against the Registrant.

7.    The Panel had regard to the HCPC Practice Note entitled, “Discontinuance of Proceedings”, and it accepted the advice of the Legal Assessor to the effect that it needed to be independently satisfied that the public interest would not be compromised by an element of the referred allegation being removed from contention. The appropriate test would not be whether the issue would, or even might, be proven, but rather whether there was any realistic prospect of it succeeding. An element of an Allegation should only be discarded if the Panel is satisfied that there could not be a finding made against the registrant after a full hearing.

Particular 2 and the Wearing of Gloves

8.    On the basis of all the evidence available it would appear that there would be no dispute in relation to the factual proposition that the Registrant did not wear gloves. The issue relevant to the application for discontinuance, however, was whether there would be evidence available to the HCPC that could properly lead to a finding that the Registrant had been required to wear gloves in order to satisfy the requirement that he wore appropriate personal protection equipment. The HCPC’s submission was that the unequivocal opinion of the expert witness it relied upon was that the wearing of gloves was not an element of required personal protection equipment. In paragraph 3.07 of his report dated 24 July 2023, and referencing the guidance of the UK Health Security Agency in force at the relevant time, Mr Benn Boshell stated: “…the wearing of gloves was not considered part of Covid-related PPE and was therefore not required during the consultation. Clinicians were not required to wear gloves unless there [sic] exposure to blood and/or other body fluids, non-intact skin or mucous membranes is anticipated or likely. As [the Registrant] did not carry out any treatment during the consultation and there was no exposure to blood or other body fluids, or non-intact skin it was not necessary for him to wear gloves.”

9.    The Panel was satisfied that there would be no prospect of Particular 2 being proven against the Registrant insofar as it related to the wearing of gloves. There was no other basis on which it would be appropriate for the contention to remain in issue. Accordingly, the Panel agreed to the HCPC’s application to discontinue it.

Particular 4 and the Timeliness of the Registrant’s Safeguarding Referral

10.    In her witness statement made on 1 May 2023, Person A, who had made the referral to the HCPC resulting in the fitness to practise investigation concerning the Registrant, stated that more than two months after the appointment she had attended with her daughter, she became aware that the Registrant had raised a safeguarding concern relating to her daughter. In her witness statement, Person A questioned the good faith of the Registrant’s safeguarding concern given the fact that she believed it to have been raised at such a late stage and after she had complained to the HCPC about the Registrant. Person A stated that she felt the Registrant had made his safeguarding referral out of spite. It would seem to be the case that Particular 4 of the referred Allegation resulted from Person A’s belief that the Registrant had not made a safeguarding concern until she became aware of it, more than two months after the Registrant’s contact with Service User A.

11.    It is important for the Panel to stress that the referred Particular 4 did not allege that the Registrant acted in bad faith in raising the safeguarding concern and/or that he did not in fact hold the concerns he expressed. What Particular 4 alleged was that he had not raised his safeguarding concern in a timely manner.

12.    At a much earlier stage of the proceedings, the Registrant provided detailed responses to the HCPC. One such response was a 16-page (excluding appendices) document dated 10 July 2022. Between pages 7 and 11 of that document, in tabular form, was a section headed, “Safeguarding Timeline”. It has not been suggested by the HCPC that it has evidence to counter any of the contentions advanced by the Registrant in this section of the document. Mr Boshell, the expert witness instructed by the HCPC, proffered his opinions based on those contentions (while recording the fact that he had not seen the documents evidencing the entries in the timeline). The Safeguarding Timeline asserts that the Registrant sought the advice of the Royal College of Podiatry on Friday, 30 July 2021 (two days after the appointment) and received a substantive reply from the Royal College on Tuesday, 3 August 2021. The following day, Wednesday, 4 August 2021, the Registrant communicated a safeguarding concern to Service User A’s GP. The Registrant chased the GP practice for a reply some seven weeks after his communication, but his exchanges with that practice continued until October 2021, when he had contact with the Multi Agency Safeguarding Hub. It was the Registrant’s contact with the Multi Agency Safeguarding Hub of which Person A became aware in October 2021.

13.    Against this background, it was Mr Boshell’s opinion that the Registrant, “took appropriate steps to raise his safeguarding concern in accordance with the Royal College of Podiatry guidelines. I note that he chose to contact the patient’s GP instead of the local authority, which was an acceptable alternative point of contact.”

14.    Having reviewed all of the available evidence, the Panel concluded that there was no realistic prospect that it would be possible for the Panel to reach a finding against the Registrant on the issue of the timeliness of his raising of a safeguarding concern. Accordingly, the Panel agreed to the HCPC’s application that the referred Particular 4 should be discontinued.

15.    Having agreed to the two elements of discontinuance sought by the HCPC, the Panel also agreed to the application of the Presenting Officer that the form of the Allegation should be amended to reflect the discontinuances. Particular 2 now relates solely to the wearing of a face mask. Particulars 5, 6 and 7 of the referred Allegation have been renumbered so that they now appear as Particulars 4, 5 and 6 respectively.

Background

16.    The Registrant is registered with the HCPC as a Podiatrist. In 2021 he owned a Podiatry practice in Woodford Halse known as Foot Wise Podiatry which he had operated as a single-handed practitioner for approximately 16 years.

17.    On 28 July 2021, Service User A, who was then 13 years of age, attended Foot Wise Podiatry with her mother, Person A. The reason the appointment was made was that Service User A had verrucae on her feet.

18.    On 30 July 2021, Person A made a referral to the HCPC complaining about the Registrant’s behaviour. The specific criticisms are reflected in the terms of the Allegation and will be described by the Panel when it explains its decision on the facts. For present purposes it suffices to reproduce a passage from the email sent by Person A to which the referral document was attached. Person A wrote of the Registrant’s, “unusually aggressive and disrespectful attitude towards my daughter. He did not give any attention to her feet choosing to bombard her with questions and berating her.”

19.    Particulars 1, 2 and 3 of the Allegation are all alleged to have occurred “on or around 28 July 2021”. In fact, each of those particulars relates to the attendance by Service User A and Person A at the Registrant’s practice on 28 July 2021, there being no dispute as to the date of that visit. Particular 4 is alleged to have occurred on “on or around 28-29 July 2021”, a contention resulting from the fact that it is alleged that the Registrant proffered dietary advice not only during the appointment on 28 July 2021, but also by email the following day.

Decision on Facts

20.    The Panel accepted the advice it received from the Legal Assessor as to the proper approach to the making of its decision on the facts. Importantly, the Panel remembered throughout that it is for the HCPC to prove relevant facts, the standard to which they are to be proved being the balance of probabilities. At no stage is it for the Registrant to persuade the Panel that a finding should not be made against him.

21.    The HCPC called three witnesses to give evidence before the Panel. They were Service User A, her mother Person A, and Mr Benn Boshell, the expert witness instructed by the HCPC to give his opinion on relevant issues.

22.    In addition to the oral evidence of Service User A, the Panel was provided with a copy of a witness statement she made on 12 April 2024. Person A also made a witness statement, dated 1 May 2023. Additionally, the Panel was provided with a copy of an email Person A sent to the Registrant the day after the appointment as well as her referral to the HCPC made two days after the appointment.

23.    The Panel found both Service User A and Person A to be honest witnesses who did their best to tell the Panel how they remembered what occurred. There were some differences in the accounts given by Service User A and Person A; that is only to be expected when different people give unrehearsed accounts of the same event. Furthermore, they were speaking about events that occurred more than four years ago, and Service User A was not only 13 years of age at the time, but was also clearly upset by what had occurred.

24.    Mr Boshell gave helpful evidence that accorded with the terms of his report dated 24 July 2023. The respects in which the Panel applied his evidence to its findings will be indicated below.

25.    Although the Registrant chose not to attend the hearing, the Panel nevertheless had extensive documentation that had been provided by him. In addition to the document dated 10 July 2022 to which reference has already been made in paragraph 12 above, the Panel was provided with an 18-page document headed, “DEFENDANT STATEMENT OF GARY DENBY REFERENCE CLINICAL CASE FTP 84098” (this document was neither signed nor dated on page 13, but the Panel was informed that it was sent on 6 March 2023), a 3-page document dated 5 August 2023 and headed, “REGRADING [sic] EXPERT REPORT BY BENN BOSHALL 24 JULY 2023”, as well as more recent communications in which the Registrant explained his reasons for not attending the hearing. The Panel fully considered all of the documents supplied by the Registrant in reaching its decisions, reminding itself in doing so that it has not been possible for contentious statements to be either challenged by the HCPC or explored by the Panel.

26.    In explaining its reasons, the Panel does not propose to rehearse all of the evidence it received; sufficient detail of the evidence will be given for the decision to be understood.

Particular 1

27.    The stem of Particular 1 alleges that the Registrant did not communicate professionally during the appointment, and in making that allegation the HCPC relies upon the three complaints advanced in sub-particulars (a), (b) and (c). It was therefore necessary for the Panel to reach a decision each of those sub-particulars separately before deciding if the stem allegation of not communicating professionally had been proven.

28.    Sub-particular 1(a). It is alleged that the Registrant, “repeatedly asked Service User A various questions in quick succession, without providing any opportunity for Service User A to respond”. Having considered the totality of the evidence it had received, the Panel was satisfied that the Registrant did ask Service User A a number of questions relating to human physiology. In one account given by Person A, the questioning was described as the Registrant choosing to “bombard” Service User A with questions. In her oral account given to the Panel, Service User A said she felt quite overwhelmed by the Registrant and that his tone was quite aggressive. However, the sub-particular being considered alleges that the questioning was undertaken in quick succession without providing any opportunity for Service User A to respond. Having carefully analysed the evidence, the Panel is unable to conclude that the Registrant did not provide any opportunity to respond. Indeed, in her evidence before the Panel, Service User A stated that there was silence when she did not respond to the questioning to which she was subjected. As will be seen, this is evidence that was consistent with the circumstances that explain the exchange relevant to sub-particular 1(b).

29.    The conclusion of the Panel is that sub-particular 1(a) is not proven.

30.    Sub-particular 1(b). All of the evidence received by the Panel, including the Registrant’s written submissions, supports the proposition that the Registrant did speak the words complained of. The Panel finds that the background to him speaking those words is that he had asked Service User A a question about human physiology. Person A could see that Service User A was becoming unsettled and upset by the questioning to which she was being subjected, and so answered the question for her daughter. It was at that point that the Registrant said to Service User A words to the effect of, “You said that without opening your mouth”. The Panel is further satisfied not only that the words were spoken, but that they were not spoken in a light-hearted or jokey manner.

31.    Sub-particular 1(b) is proven.

32.    Sub-particular 1(c). All of the evidence received by the Panel, including the Registrant’s written submissions, supports the proposition that the Registrant did say to Service User A words to the effect of “Take your mask off and answer my question or I won’t be able to treat you”. The issue of whether there was a clinical need to make that request is an issue to be decided in relation to Particular 3.

33.    Sub-particular 1(c) is proven.

34.    The Particular 1 stem allegation of not communicating professionally. Discarding the unproven particular 1(a), the Panel addressed the question whether sub-particulars 1(b) and/or 1(c) resulted in the HCPC discharging the burden of proving the allegation that the Registrant had not communicated professionally. Service User A was a 13-year-old child and had gone to the Registrant’s Podiatry practice because she had a problem with verrucae. It was the Registrant’s professional responsibility to communicate with her in an appropriate manner. If the manner of speaking he might initially have thought to be appropriate proved not to be succeeding in establishing an effective rapport with Service User A, it was also his professional responsibility to adapt his manner of communication. In speaking the words the Panel finds he did, he failed to communicate professionally.

35.    The Particular 1 stem allegation is proven.

Particular 2

36.    Particular 2 alleges that during the appointment the Registrant did not wear a face mask, and that in failing to wear one, he did not wear appropriate personal protection equipment.

37.    On the basis of all of the evidence provided to it, including the written accounts of the Registrant himself, the Panel finds that the Registrant was not wearing a face mask during the appointment with Service User A. The Panel also finds that although the COVID-dictated restrictions imposed on members of the public were eased shortly before the date of the appointment so that they were no longer required to wear face masks, the obligation for health professionals to continue using personal protection equipment, including face masks, still applied on 28 July 2021. That was the evidence of Mr Boshell, and the Panel accepted that evidence. It follows from these two findings that the Panel is satisfied that the HCPC has discharged the burden of proving that on 28 July 2021, in not wearing a face mask, the Registrant did not wear appropriate personal protection equipment.

38.    Particular 2 is proven.

Particular 3

39.    Particular 3 alleges that the request made to Service User A that she should remove her face covering was made without there being a clinical need to do so.

40.    As has already been stated, the Panel accepts that, at the date of the appointment, restrictions imposed on members of the public had been eased to the extent they were no longer required to wear face masks. However, it was clear to the Panel, and it must have been clear to the Registrant on 28 July 2021, that both Service User A and Person A had chosen to wear face masks. They were entitled to do so. The Panel accepts that it is possible to envisage circumstances in which there would be a clinical need to request a person to remove a face mask. An example of such a need would be if, having explored other means of doing so, there had been no other way in which a clinician could communicate effectively with a service user. The Registrant has suggested that his request was required for him to establish that Service User A was able to give informed consent. The Panel does not accept that assertion for three reasons. First, the nature of the questioning that had preceded the request to remove the face mask, concerning, as it did, scientific issues and issues of human physiology, were not required for a 13-year-old service user to give informed consent. Secondly, the Panel had no reason to think that the nervousness recorded by the Registrant in his clinical notes as preventing Service User A from answering the Registrant’s questions was a function of her wearing a face mask and therefore, no reason to think that that nervousness would be ameliorated by her removing the face mask. Furthermore, and in any event, a request to remove a face mask a service user had chosen to wear should only be made as a last resort, after the clinician had attempted all other means to communicate with the face mask in place. This the Registrant had not done. This is a judgment that accorded with the opinion of Mr Boshell. In the circumstances in which the Registrant’s request was made to Service User A, the Panel is satisfied that there was no clinical need for the request.

41.    Particular 3 is proven.

Particular 4

42.    Particular 4 alleges that both during the appointment and on the following day, the Registrant provided dietary advice which was not clinically justified in the light of Service User A’s presenting complaint of verrucae.

43.    The Panel accepted the evidence of Person A that during the appointment, the Registrant asked about Service User A’s diet, and that she replied to him that Service User A was vegetarian and that her diet was “beige”. The Registrant then started to speak about nutrition and the importance of having a balanced diet. The Registrant’s own SOAP notes made after the appointment reflect the discussion. Under “Action”, the Registrant recorded: “Too nervous to treat or answer questions, which might gain buy-in to an improved diet and an immune response. Would not remove mask (hiding?), became tearful. White coat fear? Would not answer with own knowledge, mother intervening (red blood cells...). Unable to gain informed consent. Too nervous to treat with cryotherapy. Mother removed daughter from surgery.” And under “Plan” he recorded this: “I advised mother that we need an improved diet to gain a better immune ability, then we may try some different treatments to encourage a specific immune response against the warts. May return when more composed? NEEDS to improve diet (25% fruit & green vegetables for immunity; 25% dairy for height, bone density and growth; 25% animal protein for muscle development) and then warts may resolve? You are what you eat.”

44.    The day following the appointment, 29 July 2021, the Registrant sent Person A an email. Included in the email were the following two paragraphs:
“From the report, you provided the most likely key to the warts’ persistence: a poor diet. My concern for [Service User A] that she may also be limiting her dairy-calcium intake, which is VERY necessary at her age for normal height and bone density development. We did not get this far, before [Service User A] became tearful, from my simple and purposeful questioning.

An approach you may try with regards providing [Service User A] with a more diverse diet (5-a-day fruit + veg is difficult for the best of us!), is to mix favourite with new. Eg: tomatoes and courgettes; mint and potatoes; grated cheese and cucumber... As teenagers develop, so do their taste buds (less sweet) and their appreciation of texture. Their brains need direction and encouragement to be experimental, to find this out for themselves.”

45.    It was the evidence of Mr Boshell that there are circumstances in which it would be appropriate for a Podiatrist to discuss diet with a service user. He gave the example of the established connection between vitamin D deficiency and stress fractures in the foot and lower limbs: in such cases, it might be appropriate for there to be a discussion about diet in the context of discussing possible vitamin D deficiency if a Podiatrist is dealing with stress fractures. However, it was the opinion of Mr Boshell that there is no evidence to suggest that any specific diet is a causal factor in the contraction of verrucae, and also that the British Association of Dermatologists’ published guidelines on up-to-date, evidence-based recommendations for the management of infectious warts, including verrucae, makes no mention of dietary advice as a recommended treatment option for verrucae. As a consequence of the cited evidence, it was the opinion of Mr Boshell that there is no clinical justification to ask about a patient’s diet in this context and it is inappropriate and unnecessary to provide the dietary advice given. The Panel accepted the opinion of Mr Boshell in this regard.

46.    Particular 4 is proven.

Decision on Grounds

47.    After the Panel handed down its written determination explaining its reasons for its findings on the factual elements of the case, it allowed the Presenting Officer time to consider the document before hearing her further submissions. The Panel indicated to the Presenting Officer that it wished her to make her submissions on both misconduct and impairment of fitness to practise.

48.    With regard to misconduct, the Presenting Officer submitted that when viewed both individually and collectively, the proven factual particulars should lead the Panel to find misconduct established. She reminded the Panel of approaches to the term misconduct when considered in appeals, and submitted that the proven matters represented serious fallings short of conduct expected of a registered Podiatrist and behaviour that fellow professionals would consider to be deplorable. The Presenting Officer submitted that the Registrant’s behaviour was liable to lead to a breakdown in the relationship between professional and service user. She also submitted that the failure to wear required personal protection equipment was a serious departure from proper standards of behaviour given the risks to health arising from it at that time. The only Standard of the 2016 version of the HCPC’s Standards of conduct, performance and ethics that it was submitted the Registrant had breached was Standard 9.1. However, when asked by the Legal Assessor to comment on other standards that might be relevant, the Presenting Officer accepted that the Panel’s findings on the facts might be thought to engage other Standards.

49.    The Panel began its deliberations by deciding whether there had been breaches of the HCPC’s Standards of conduct, performance and ethics. The events being considered pre-dated the current version of those Standards, and so the Panel reviewed those that came into force in 2016, and which were still applicable in July 2021. The conclusion of the Panel was that the following Standards were breached by the Registrant:

• Included in Standard 1, under the sub-heading, “Treat service users and carers with respect”, is Standard 1.1, which states, “You must treat service users and carers as individuals, respecting their privacy and dignity.” The Registrant did not discharge this obligation with regard to Service User A.
• Standard 2 requires registrants to communicate appropriately and effectively. Standard 2.1 requires registrants to be polite and considerate, and Standard 2.2 imposes the duty to listen to service users and to take account of their needs and wishes. The Panel’s findings in relation to Particulars 1(b), 1(c) and 3 necessarily involve a finding that the Registrant breached these Standards.
• Standard 3 requires registrants to work within the limits of their knowledge and skills. In providing the dietary advice found proven by Particular 4, the Registrant breached that Standard.
• Standard 6 requires registrants to manage risk, and this is further refined by Standard 6.1 which states, “You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.” The Panel’s findings on Particulars 2 and 3 mean that this Standard was breached.

As Standard 9 is headed, “Be honest and trustworthy”, the Panel considered that the Standards identified above were more appropriate to capture the Registrant’s failings than the Standard 9.1 urged by the Presenting Officer.

50.    The Panel accepted the advice it received that a finding of misconduct should not automatically result from a finding that a Standard, or more than one Standard, had been breached. A Panel making a decision on misconduct is required to decide if any breaches established are of a sufficiently serious nature to warrant being categorised as misconduct.

51.    Having carefully considered the matter, the Panel concluded that each of the proven particulars amounted to a serious failing. In particular:

• The Registrant was not only speaking to a child, but to a child whom he came to recognise was nervous. On the findings of the Panel the words represented in Particulars 1(b) and 1(c) represented a serious departure from the manner in which he should have spoken to her.
• The request that Service User A should remove her face mask, when there was no clinical need for that request, demonstrated that the Registrant was seeking to impose his own view over what must have been obvious to him was the wish of the child to keep it in place.
• The Registrant was required to wear a face mask for reasons of health protection. This means that his failure to wear one created an obvious risk of harm to Service User A and Person A.
• The proffering of unasked for, unnecessary and erroneous advice represents a serious shortcoming on the part of a registered health professional. The Registrant’s dietary advice was a serious breach of his professional obligations.

52.    The conclusion of the Panel was that when viewed both individually and collectively the proven Particulars represented behaviour that was sufficiently serious for a finding that the misconduct threshold had been crossed.

Decision on Impairment    

53.    In her submissions on current impairment of fitness to practise, the Presenting Officer reminded the Panel of the need to address both the personal and public components. She stated that it is the HCPC’s contention that the Registrant’s fitness to practise is impaired in respect of the public component, but acknowledged that the Panel might consider that a finding in respect of the personal component should also be made. With regard to the personal component, she acknowledged that there is some evidence of reflection and remediation. She submitted that there was, however, no independent confirmation of effective steps the Registrant had taken to change the way he would behave in the future. She also submitted that a finding of current impairment of fitness to practise should be made in respect of the public component even if the Panel concluded that there is no continuing personal component impairment. This, she submitted, was because of the need to uphold proper professional standards and to maintain public confidence in the profession of podiatry.

54.    The Panel accepted the submission of the Presenting Officer, an approach that was confirmed by the advice of the Legal Assessor, that the personal and public components should both be considered.

55.    With regard to the personal component, the Panel found it helpful to answer the questions suggested in paragraph 13 of the HCPTS Practice Note entitled, “Fitness to Practise Impairment”, the questions relevant to the present case being:

• whether the Registrant has in the past acted and/or is liable in the future to act so as to put a service user at unwarranted risk of harm;
• whether the Registrant has in the past breached and/or is liable in the future to breach a fundamental tenet of the profession; and
• whether it is highly unlikely that the conduct will be repeated.

56.    So far as past actions are concerned, the Panel’s conclusions were:

• the Registrant’s actions in not himself wearing a face mask (Particular 2) and requesting Service User A to remove her mask (Particular 3) did put Service User A at unwarranted risk of harm; and
• each of the proven particulars constituted breaches of at least one of the fundamental tenets of his profession for the reasons already expressed in explaining why Standards of the HCPC’s Standards of conduct, performance and ethics were breached.

57.    Before dealing with the question of whether the Registrant is liable to act in a similar way in the future, the relevance of the Registrant’s current professional status must be considered. He has been very clear in stating that he has discontinued his practice at Foot Wise Podiatry, and indeed has no future intention of practising as a Podiatrist. The Panel does not doubt the truth of either of these assertions, but it is a fundamental principle of professional regulation that a fitness to practise panel must determine what a person who continues to be registered is permitted to do. The Registrant remains on the HCPC Register, and the legislation governing this process dictates that he cannot remove himself from the Register while these fitness to practise proceedings remain extant. Accordingly, when a panel makes a decision, it must be assumed that a person who presently has no desire to exercise their right to practise might in the future change their mind about that. Accordingly, in answering the questions extracted from paragraph 13 of the Practice Note, the Panel is required to answer them on the assumption that the Registrant might in the future change his mind about returning to practise as a Podiatrist.

58.    In reaching its decision, the Panel reviewed the documents provided by the Registrant. It is true that he has expressed regret for what occurred on 28 July 2021. Indeed, the very next day he sent an email to Person A in which he said he was sorry for any distress. However, any apology or expression of insight has to be viewed in the context in which it was expressed. The statement made in the email sent on 29 July 2021 was coupled with an assertion that Service User A’s distress arose as a result of the Registrant seeking to obtain informed consent. The Panel rejects that contention for the reason already given. The Registrant has apologised for not wearing a face mask and said that he would not repeat behaviour of that sort. However, if he has understood the reasons why his failure to wear one was a serious matter, he has not expressed that understanding. Furthermore, as recently as 10 days before the commencement of this hearing, the Registrant wrote an email in which he twice referred to Person A as an impatient mother. The Panel is of the clear view that Person A was not impatient; her intervention was occasioned by the fact that she could see that the Registrant’s behaviour was upsetting her child. Furthermore, in that same recent email, what the Registrant wrote about dietary matters suggests that he has not understood why the advice he gave was inappropriate. All of these factors strongly suggest that the Registrant has not developed the degree of understanding that would be needed for there to be confidence that he would not repeat behaviour of the type that has been found against him. In the judgement of the Panel, he is liable to repeat such behaviour.

59.    This conclusion has the inevitable consequence that in respect of the personal component the Registrant’s fitness to practise is currently impaired.

60.    The issues to be decided in relation to the public component are different, and in that regard the Panel heeded the guidance contained in paragraphs 32 to 35 inclusive of the Practice Note to which reference has already been made. Accordingly, the Panel addressed the following issues:

• the need to protect service users;
• maintaining professional standards; and
• maintaining public confidence.

61.    The finding that, were he to return to practise as a Podiatrist, the Registrant would be liable to repeat behaviour of the sort experienced by Service User A means that there is a need to protect service users. The Panel acknowledges that Service User A did not suffer tangible harm as a result of her involvement with the Registrant. Nevertheless, service users attending Podiatrists are entitled to expect that they will be treated with consideration and politeness. Additionally, there is a risk that a service user who has a bad experience with a health professional will avoid seeking advice and treatment with a different professional, and that is a factor that gives rise to the risk of tangible harm to their health and well-being.

62.    Furthermore, the Panel is satisfied that even were there not the risk of repetition that there is in this case, it would nevertheless be necessary to reach a finding of current impairment of fitness to practise in order to reassure members of the public that behaviour of the sort involved in this case will not be ignored, and also to remind other registrants that if they act in that way, their behaviour will not be overlooked.

63.    The conclusion of the Panel is that, for the reasons explained above, the Registrant’s fitness to practise is currently impaired with regard to the public component.

64.    The consequence of these findings is that the Allegation is well founded. The Panel must now go on to consider the issue of sanction.

Decision on Sanction

65.    The Panel allowed the Presenting Officer time to read its written determination on misconduct and current impairment of fitness to practise before asking her to make submissions on sanction.

66.    On behalf of the HCPC, the Presenting Officer reminded the Panel that it had the option of taking no further action. She submitted that the sanction decision should be made on the proven facts only, but should reflect the finding on all of those facts. The Presenting Officer submitted that if the Panel decided that a sanction were required, the available sanctions should be considered in an ascending order of seriousness. The Presenting Officer suggested a number of matters that the Panel might decide to be aggravating features of the case. Included in the factors identified were partial insight on the part of the Registrant, the lack of remediation and the fact that Service User A was subjected to the risk of harm. She also submitted that the Panel might consider such insight as had been shown and the apologies tendered by the Registrant to be mitigating factors. The Presenting Officer concluded her submissions by reminding the Panel that it needed to be satisfied that any sanction decision made represented a proportionate response.

67.    The Panel accepted the advice it received from the Legal Assessor. Accordingly, it applied the approach that a sanction should never be imposed to punish a registrant against whom a finding has been made. Rather, a sanction should only be imposed to the extent that it is required to protect the public, maintain a proper degree of confidence in the registered profession, and to uphold proper professional standards. A finding that an allegation is well founded does not of itself require the imposition of a sanction. It follows that the first question to be asked is whether the particular findings made in the case require the imposition of any sanction. If a sanction is required, then the available sanctions must be considered in an ascending order of seriousness to ensure that the principles just identified are observed. This exercise should be undertaken applying the guidance contained in the Sanctions Policy. The Panel recognised that the present week is the last week in which the Sanctions Policy updated in March 2019 is to be used for that purpose. As the finding is one of misconduct, the entire sanction range up to and including striking off is available.

68.    In reaching its decision, the Panel acknowledged the information provided to it that there had not been any previous regulatory findings against the Registrant. That fact does not mitigate the seriousness of the proven Allegation. That the Registrant tendered some apology, acknowledged that in some respects recognised that he could and should have behaved differently, and thereby had achieved some insight into his failings were factors that could properly be classed as mitigating. However, it is important to state, as recognised in the Sanctions Policy, that matters of mitigation may be of limited significance because the overarching concern of fitness to practise proceedings is protection of the public.

69.    The Panel concluded that there were two aggravating factors. They were:

• the limited insight on the part of the Registrant into the inappropriateness of his actions. This was particularly so with regard to the giving of dietary advice; and
• the risk of harm arising from the Registrant’s actions. Two risks arose, namely:
  • the risk of emotional harm to Service User A resulting from the manner in which the Registrant interacted with her; and
  • as a result of not wearing a face mask, the Registrant increased the health risk for himself and the other two people in the room. Had Service User A complied with the Registrant’s request to remove her mask, the health risk would have been greater still. Either way, the health risks involved would not have been confined to the persons in the room, given the possibility of onward transmission. 

70.    There is an important matter the Panel should explain about its sanction decision before turning to explain why its decision for choosing the sanction it has decided should be imposed. In regulatory proceedings of this type there can be no “tariff” for any particular Allegation, or even type of Allegation. It is certainly the case that the seriousness of the Allegation is an important factor, but it is not the only consideration; the current attitude of the registrant against whom the Allegation has been found proven is also important. It follows that, depending on the attitude of the registrant concerned, very different sanction responses might follow for Allegations that might otherwise appear to be quite similar.

71.    When the Panel considered whether this is a case in which it would be proper to pass from the case without imposing a sanction, the Panel concluded that it would not. To impose no sanction would be to fail to reflect either the seriousness of the proven Allegation or the fact that there is risk of repetition of similar behaviour.

72.    Having determined that a sanction was required, the Panel next decided whether it should impose a caution order. Paragraph 101 of the Sanctions Policy is in these terms:

“A caution order is likely to be an appropriate sanction for cases in which:

• the issue is isolated, limited, or relatively minor in nature;
• there is a low risk of repetition;
• the registrant has shown good insight; and
• the registrant has undertaken appropriate remediation.”

73.    When the Panel assessed the circumstances of the present case against these suggested factors, it concluded that a caution order would not be appropriate. This was because:

• it could be said that the issue was isolated in the sense that it involved a single service user on a single day during a short appointment. However, in the view of the Panel the issue could not be viewed as relatively minor in nature, not least because in that short appointment a number of quite different failings were apparent;
• for the reasons already expressed by the Panel in its decision on impairment of fitness to practise, it could not be said that there is low risk of repetition;
• the Registrant does not have good insight, most notably with regard to the issue of dietary advice; and
• such remediation as has been undertaken by the Registrant is incomplete.

74.    There was an additional reason why the Panel concluded that a caution order should not be imposed. It was that, were the Registrant to return to practise as a Podiatrist, the terms of a caution order would not operate to impose any restriction on the way in which he could conduct his work. A caution order would therefore not provide any protection against the risk of harm that would be associated with repeated inappropriate behaviour.

75.    Having rejected a caution order as an appropriate sanction, the Panel next considered whether a conditions of practice order should be imposed. Paragraphs 106 and 107 of the Sanctions Policy provides helpful guidance. Seven factors are identified in paragraph 106 that are said to be features of a case in which a conditions of practice order being imposed would be appropriate. Paragraph 107 begins with this sentence, “Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so.”

76.    The conclusion of the Panel was that in the particular circumstances of this case, a conditions of practice order would not be appropriate. The reasons for this decision were as follows:

• The Registrant has stated that he has ceased practising as a Podiatrist and has no future intention of returning to do so. That means that any conditions of practice would have to be formulated on an assumption of the type of work that the Registrant might wish to return to, rather than with a specific role in mind. That factor alone means that it is very difficult to envisage conditions of practice that would be appropriate.
• When he did practise as a Podiatrist, for many years the Registrant worked as a single-handed practitioner in a practice he owned. In the view of the Panel, were there to be any conditions of practice that could be formulated, they would necessarily require an element of oversight or monitoring. Single-handed work in a self-owned practice would not lend itself to the degree of scrutiny that would provide a sufficient degree of protection against the risks associated with a repetition of inappropriate behaviour.
• The Registrant has been clear in his expression of a negative view of the HCPC. It is his right to hold whatever view about the HCPC he wishes, and it would be quite wrong for him to be penalised for holding it. However, as paragraphs 106 and 107 of the Sanctions Policy make clear, for a Panel to impose a conditions of practice order, it is necessary that there should be confidence not only that the conditions will be complied with, but also that there is a genuine commitment on the part of the registrant to resolving the concerns that underpin the need to impose those conditions. Having regard to all the information available to it, the Panel does not have that confidence with regard to the Registrant.

77.    The rejection of conditions of practice as an appropriate disposal of the case necessarily meant that the Panel arrived at a consideration of a suspension order. The first sentence of paragraph 121 of the Sanctions Policy states, “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.” For the reasons just stated, it was the view of the Panel that the concerns could not reasonably be addressed by the imposition of a conditions of practice order. The Panel then looked beyond a suspension order to decide if the outcome should be striking off. The conclusion of the Panel was that at the present stage the making of a striking off order would be disproportionate. Although serious, the proven Allegation is one that is not so grave that it could only result in a striking off order. Indeed, the proven Allegation is a good example of the point made by the Panel in 70 above about the required sanction requiring a consideration of both the seriousness of the Allegation and the individual registrant’s response to it. In the view of the Panel, before concluding that it would be a proportionate response to impose a striking off order, it would be appropriate to allow the Registrant an opportunity to reflect on the Panel’s decision, and in the light of that reflection, to decide what his attitude towards continued professional registration is.

78.    The prospect of repeated behaviour, and the attendant risk of harm, require that the Registrant must, for the time being, be prevented from being able to practise as a Podiatrist. That need demands the imposition of a suspension order. In the view of the Panel a period of six months is sufficient for the Registrant to be able to take stock. If, having done so, he wishes to seek to retain his professional registration then he can take steps towards being allowed to return to work as a Podiatrist and seek to persuade a reviewing panel that he should be permitted to do so.

79.    The suspension order made by the Panel will, in common with all suspension orders made by HCPC Practice Committees, be reviewed before it expires. That review will take place in approximately six months from now. The outcome of that review will be a decision to be made by the panel conducting it. The present Panel does not seek to suggest to that future panel the way in which it should exercise its discretion. But the Registrant would be well advised to recognise that the future reviewing panel will have all of the sanction options that were available to the present Panel, and that means that a striking off order could be made. As already stated, the present Panel does not make a striking off order today because it takes the view that the Registrant should have an opportunity to reflect on his position so as to be able to decide whether he wishes to be permitted to return to Podiatry. If he does not seek to persuade the reviewing panel that he has taken, or at least has started to take, steps to be permitted to return to work as a Podiatrist, he may well find that the reason why a striking off order was not made today will not be thought to apply when the review takes place.

80.    The Panel recognises that determinations often contain a list of suggested steps that a suspended registrant might take, and also of the evidence they might present to the reviewing panel. The Panel does not consider that to be appropriate in the present case. If the Registrant wishes to preserve his professional registration, he will be able to understand the areas he would need to address by a careful reading of this determination, identifying the reasons why the Panel found his fitness to practise to be impaired and the reasons why no lesser sanction than a Suspension Order was required.

ORDER: The Registrar is directed to suspend the registration of Gary J Denby for a period of 6 months from the date this Order comes into effect.

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

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

Interim Order Application

Application

1.    After the Panel announced its decision that the substantive sanction would be that of a Suspension Order, the Presenting Officer applied for an interim suspension order for a period of 18 months to cover the appeal period. She submitted that the Panel’s decision made in relation to the substantive issues resulted in an interim order being necessary for protection of members of the public and being otherwise in the public interest. In submitting that the order should be made for the maximum period of 18 months, the Presenting Officer argued that if the Registrant did appeal the Panel’s decision, an appeal could take at least that length of time to be finally disposed of.

2.    The absence of the Registrant from the hearing had the consequence that there were no submissions made by him or on his behalf following the Presenting Officer’s application. Furthermore, although informed in the manner to be described of the possibility that such an application might be made, the Registrant had not made any written representations on the issue.

Decision

3.    The Panel accepted the advice it received in relation to the application. It also had regard to the section entitled, “Interim orders” between paragraphs 133 and 135 of the Sanctions Policy and the HCPTS Practice Note entitled, “Interim Orders”. Accordingly, it was first required to decide whether it had jurisdiction to consider the application. If satisfied that it had jurisdiction, it must then decide whether the application should be decided in the absence of the Registrant. If the issue should be decided in the absence of the Registrant, the Panel must then consider whether there are risks that satisfied one or more of the three grounds that could justify the making of an interim order. Those grounds are, (i) that it is necessary for protection of members of the public, (ii) that it is otherwise in the public interest, and (iii) that it is in the interests of the registrant concerned. Furthermore, the Panel was required to remember that the default position established by the legislation governing this process is that when a substantive sanction is imposed, there will be no restriction on a registrant’s ability to practise while their appeal rights remain extant. Accordingly, something more than the fact that a substantive sanction has been imposed is required to justify the making of an interim order. If satisfied that an interim order should be made to cover the appeal period, that order should only be one of suspension if interim conditions of practice to cover that period are for some reason not appropriate. The Panel confirms that it has followed this approach.

4.    Included in the Notice of Hearing email sent to the Registrant on 10 September 2025, was the following passage: “Please note that if the Panel finds that it is necessary to do so, it may also impose an interim order (under Article 31 of the Health Professions Order 2001) at any stage during the hearing. An interim order suspends or restricts a registrant’s right to practise with immediate effect.” The Panel concluded that this afforded the Registrant the opportunity of making representations on the issue of whether an interim order should be made, and for that reason provided jurisdiction for the application to be considered by the Panel.

5.    The Panel was satisfied that it was appropriate to decide the application in the absence of the Registrant. When an application for an interim order is made there is necessarily a degree of urgency in deciding the matter, the Registrant was informed in the Notice of Hearing that such an application might be made and there is no reason to believe that the Registrant would wish to be heard on the matter if the Panel did not deal with it at the present time.

6.    Whilst acknowledging the default position that there is no restriction on a registrant’s ability to practise while their appeal rights remain outstanding, the Panel concluded that in the present case an interim order is required. It is necessary for protection of members of the public and it is otherwise in the public interest for the same reasons explained by the Panel in its substantive sanction decision.

7.    The Panel considered whether interim conditions of practice would be a sufficient restriction during the appeal period, but concluded that, for the same reasons a substantive conditions of practice order was not appropriate, interim conditions of practice would not sufficiently address the reasons why an interim order is required.

8.    The Panel therefore concluded that an Interim Suspension Order should be made.

9.    The Panel decided that the Interim Suspension Order should be for the maximum period of 18 months. An order of that length is necessary because the final resolution of an appeal could well take 18 months if the Registrant appeals the Panel’s decision and Order. In the event that the Registrant does not appeal the decision and Order, the interim order will simply fall away when the time within which he could have commenced an appeal passes.

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Gary J Denby