In a long-running case of a Toronto doctor found to have sexually abused his patients, Ontario’s medical regulator again finds itself in the position of having to challenge its own discipline committee, this time before the province’s top court.
The College of Physicians and Surgeons of Ontario (CPSO) has been trying for more than a year to strip Dr. Javad Peirovy of his licence for groping four female patients at a Toronto walk-in clinic in 2010 — a case the college has previously described in court documents as “amongst the most egregious examples of sexual abuse by physicians.”
A panel of the college’s independent discipline committee, made up of three doctors and one member of the public, imposed a six-month suspension in 2016, rather than side with the college which was pushing for revocation of the doctor’s licence. The college’s registrar took the rare step at the time of issuing a public statement expressing disappointment with the committee.
The college successfully appealed to Divisional Court, which ruled in January that the penalty was “clearly unfit.”
In ordering that Peirovy should face a new penalty hearing before the discipline committee, the court also called out the committee for a repeated failure in how it handled previous cases of doctors who sexually abuse their patients.
“The facts of these cases are base. It is depressing to review them,” Justice James Ramsay wrote for a unanimous three-judge panel.
“They do little to encourage confidence in the committee’s approach to eradicating sexual abuse in the profession. Consistency in the imposition of sentence is a proper consideration, but a litany of clearly unfit penalties does not justify the penalty imposed in the present case.”
Peirovy is now looking to the Ontario Court of Appeal to quash the Divisional Court decision. The appeal will be heard Nov. 27.
Having served his suspension, he is now practising at Ultimate Diagnostics in North York, where he is only permitted to practise on women in the presence of a female health professional approved by the college.
If the court sides with him, it will outrage Peirovy’s victims and be a serious blow to both the CPSO and the provincial government, which have ramped up their calls in recent years for zero tolerance of sexual abuse in the health professions.
“The court can affirm the need for tougher penalties where doctors sexually abuse their patients,” said medical malpractice lawyer Paul Harte, who is not involved in the case. “Doing so would send an importance message of deterrence and bring us closer to the goal of eradicating physician sexual abuse.”
Since Peirovy’s discipline proceedings, the government passed Bill 87, which strengthened the law around sexual abuse of patients by health professionals, in the wake of a Star investigation on doctors still at work despite findings of sexual abuse.
Among other things, the new law, passed in May, added groping to the list of sexual acts that lead to the mandatory revocation of a health professional’s licence.
A trio of lawyers from high-powered law firm McCarthy Tétrault argue in a factum filed at the Court of Appeal on behalf of Peirovy that the Divisional Court judges made “significant errors” in their decision to send Peirovy’s case back to the discipline committee for a new penalty hearing.
“First, the Divisional Court erred in law, and acted in excess of its jurisdiction, by purporting to declare as unfit an entire body of prior penalty jurisprudence of the discipline committee, never appealed, and not under appeal before it in this case,” says the factum, calling it an error of “broad public importance.”
The lawyers also argue that the Divisional Court failed to apply the principle of parity, “which confirms that the penalty imposed for professional misconduct should be proportionate to penalties imposed in similar circumstances.”
Peirovy’s lawyers had presented the court with cases similar to Peirovy’s where the penalty had been suspensions in the range of four to eight months, plus conditions on the licence to practice.
They say the court should have also shown deference to the discipline committee’s decision, as it was in the best position to come to a penalty after hearing all the evidence.
“The penalty in this case does not reflect zero tolerance. It does not protect the public,” college lawyers Elisabeth Widner and Ruth Ainsworth argue in their factum filed with the Court of Appeal.
“It undermines public confidence in the ability of the profession and the regulator to eradicate sexual abuse of patients by physicians. The discipline committee relied on a flawed reasoning process to arrive at a penalty that is manifestly unfit.”
Peirovy pleaded guilty in criminal court in 2013 to two counts of simple assault relating to two of the patients who were later the focus of his disciplinary hearing at the college. He was given a conditional discharge and 18 months’ probation and was ordered by the court to take counselling.
At the hearing before the disciplinary committee, Peirovy was found to have placed his stethoscope on the nipples of two patients and cupped their breasts. Regarding two others, he touched their nipples when “there was no clinical reason” to examine the women in that way, the panel found.
The CPSO’s lawyers have always argued that the committee’s decision on liability is inconsistent with its later decision on penalty, making it a “significant error.” In the decision on liability, the panel found the touching of the patients’ breasts to be deliberate and accepted the women’s description of Peirovy’s conduct as “blatantly sexual,” Widner and Ainsworth say.
In the penalty decision, the panel — chaired by former CPSO president Dr. Marc Gabel, and including Drs. John Watts and Robert Sheppard and community member Diane Doherty — largely accepted the evidence of a forensic psychiatrist when it found Peirovy was embarrassed by his actions, did not have a “sexual motivation” and can improve through counselling.
“Notwithstanding its findings of deliberate, sexual touching without patient consent or medical justification, in its decision on penalty the committee resiled from these clear conclusions and proceeded to explain the appellant’s conduct on the basis of poor communication and awkward manner,” the CPSO lawyers write in their factum.
Source: Toronto Star