Dialogue Volume 13 Issue 3 2017 - Page 61

DISCIPLINE SUMMARIES DISCIPLINE COMMITTEE FINDINGS There was clear evidence before the Committee of sexual assault by Dr. Marshall of Complainant A. However, the Committee found that there was insuf- ficient evidence to establish a doctor-patient relation- ship concurrent with the sexual misconduct. Other than the back incident, there was no evidence to link any of the evidence of sexual assault before the Com- mittee to evidence of a doctor-patient relationship. The evidence regarding the back incident, without specific evidence linking the incident to any particu- lar test, record, or billing, was insufficient on its own to establish the existence of a doctor-patient relation- ship. The Committee did not find that Dr. Marshall engaged in sexual impropriety with a patient because the existence of a doctor-patient relationship was not established. The Committee did find, however, that Dr. Mar- shall committed an act of professional misconduct in that he engaged in conduct or an act relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofes- sional (under the Health Disciplines Act, which was in force at the time of the conduct) and he has been found guilty of an offence that is relevant to his suitability to practise (under the Health Professions Procedural Code, which was in force at the time of the conviction). Counsel for the College and counsel for Dr. Marshall agree that there is only one finding of professional misconduct. Counsel for the Col- lege and counsel for Dr. Marshall also agree that as the Committee may impose a penalty under either the Health Disciplines Act or the Health Professions Procedural Code, it made sense to impose the penalty under the Health Professions Procedural Code. Counsel for the College submitted that revocation of Dr. Marshall’s certificate of registration was the appropriate penalty in this case, together with a rep- rimand and payment of costs for two days of hearing at the tariff rate of $5,000 per day. Counsel for Dr. Marshall submitted that an ap- propriate penalty would be a reprimand and a suspension of 12 to 16 months, followed by careful monitoring of Dr. Marshall’s clinical behaviour in- cluding a chaperone, limits on Dr. Marshall’s abil- ity to physically examine patients, and a reporting mechanism back to the College provided he was in, or completing, therapy. Counsel for Dr. Marshall did not dispute the costs portion of the College’s sug- gested penalty. REASONS FOR PENALTY The Committee considered that protection of the public from further misconduct by this physician to be of the utmost importance in determining the ap- propriate penalty. It is vital to maintain the public’s confidence in the College’s ability to self-govern in the public interest. The penalty must also provide specific and general deterrence, communicate the profession’s disapproval of the misconduct, and take into account any aggravating and mitigating fac- tors. Where appropriate, the penalty should also take into account the possibility of rehabilitation of the member. The Committee carefully considered the submis- sions of both parties and concluded that revocation is the appropriate penalty in this case. ORDER In summary the Committee ordered and directed revocation of Dr. Marshall’s certificate of registration effective immediately; a public reprimand; and costs in the amount of $10,000. For complete details of the Order, please see the full decision at www.cpso.on.ca. Select Doctor Search and enter the Doctor’s Name. Dr. Marshall waived his right to an appeal and the Committee administered a reprimand in Dr. Marshall’s absence. Full decisions are available online at www.cpso.on.ca. Select Doctor Search and enter the doctor’s name. ISSUE 3, 2017 DIALOGUE 61