Committee: Discipline
Decision Date: 29 Jun 2017
Summary:
On June 29, 2017, the Discipline Committee found that Dr. Marshall committed an act of professional misconduct in that he has engaged in conduct or an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
Dr. Daniel Robert Marshall (“Dr. Marshall”) is a paediatrician who received his certificate of registration authorizing independent practice in 1983. At all material times, Dr. Marshall conducted a general paediatric clinical practice in Hamilton, Ontario, focusing primarily on treating children with behavioural, attention and mood problems, particularly involving attention deficit disorder.
Criminal Charges and Sentencing
On September 17, 2012, Dr. Marshall was charged with 32 counts of touching for a sexual purpose and sexual assault and 1 count of breach of recognizance:
- 29 counts of touching for a sexual purpose and sexual assault based on allegations related to genital exams conducted by Dr. Marshall on 20 former patients (patients B to U), who were all young boys treated by him prior to, or during puberty.
- 3 counts involved 2 complainants who alleged that Dr. Marshall had touched them improperly on occasions outside of his office.
- 1 count of breach of recognizance based on Dr. Marshall’s alleged contact with one of the complainants after the imposition of a bail condition that he was not to have any such contact.
After a trial on the charges in the Ontario Superior Court of Justice in Hamilton Ontario (the “2013 Criminal Trial”), Mr. Justice Reid found Dr. Marshall guilty of sexual assault in respect of one of the complainants who alleged that Dr. Marshall had touched him improperly on occasions outside of his office.
Dr. Marshall was acquitted on the balance of the charges, including with respect to his genital examinations of the 20 patients. Justice Reid found that the Crown had not proved that Dr. Marshall’s touching of the genitals of the 20 patients (patients B to U) was of a sexual nature or for a sexual purpose and acquitted Dr. Marshall of the charges in respect of these patients.
On July 3, 2013, Dr. Marshall was sentenced to eight months imprisonment, less six days pre-trial custody.
On July 6, 2015, the Ontario Court of Appeal dismissed Dr. Marshall’s appeal of his conviction. His application for leave to appeal to the Supreme Court of Canada was denied on January 28, 2016.
Revocation of Certificate of Registration
On March 28, 2016, the Discipline Committee found that Dr. Marshall engaged in conduct that was disgraceful, dishonourable or unprofessional and that he had been found guilty of an offence relevant to his suitability to practise and ordered revocation of Dr. Marshall’s Certificate of Registration. Dr. Marshall’s Certificate of Registration was revoked on September 16, 2016.
Disgraceful, dishonourable or unprofessional conduct - Patients B to U
On June 29, 2017, the Discipline Committee held a hearing in respect to the allegations of Dr. Marshall’s 20 former patients (patients B to U) arising from the evidence of these patients in the 2013 Criminal Trial.
Patients B to U were all seen by Dr. Marshall for behavioural or mood disorders as adolescents or pre-adolescents between 1987 and 2010. Each of Patients B to U gave evidence at the 2013 Criminal Trial about genital examinations conducted by Dr. Marshall. In addition, three experts testified at the 2013 Criminal Trial regarding the genital examinations conducted by Dr. Marshall. At the 2013 Criminal Trial, evidence from both the Crown and Defence experts established that:
- In respect of some of the complainants, Dr. Marshall failed to provide a clear explanation in advance to either the patients and/or their parents as to the purpose of the genital examinations. The experts agreed that a clear and detailed explanation of the purpose and procedure of a genital examination is required prior to conducting such an examination.
- In respect of some of the complainants, Dr. Marshall conducted genital examinations of patients in their street clothes. The experts agreed that patients should be gowned for genital examinations, particularly those patients seen after 1999 when the Canadian Pediatric Society released its position statement on “Ethical approach to genital examination of children”.
- Most of the complainants testified that Dr. Marshall did not wear gloves when conducting genital examinations. The experts agreed that, for genital examinations conducted prior to 1999, while it was not necessarily standard of practice to wear gloves, it would have been preferable for Dr. Marshall to wear gloves. For genital examinations conducted after 1999, it was the standard of practice to wear gloves.
On June 29, 2017, upon reviewing an undertaking signed by Dr. Marshall that he would not apply for registration in Ontario or any other jurisdiction, the Committee ordered and directed that:
- Dr. Marshall appear before the panel to be reprimanded.
- Dr. Marshall pay costs to the College for a one day hearing in the amount of $5,500.00 within 30 days of the date of this Order.
Committee: Discipline
Decision Date: 28 Mar 2016
Summary: