College of Physicians and Surgeons of Ontario v. Peirovy, 2017 ONSC 136

College of Physicians and Surgeons of Ontario v. Peirovy, 2017 ONSC 136

CITATION: College of Physicians and Surgeons of Ontario v. Peirovy, 2017 ONSC 136

DIVISIONAL COURT FILE NO.: DC-16-251-000

DATE: 20170117

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Molloy, Dambrot and Ramsay JJ.

BETWEEN:

The College of Physicians and Surgeons of Ontario

Appellant

– and –

Javad Peirovy

Respondent

COUNSEL:

Elisabeth Widner, for the Appellant

David Porter and Jordan Katz, for the Respondent

HEARD: December 6, 2016

REASONS FOR JUDGMENT

RAMSAY J.

1The College of Physicians and Surgeons of Ontario appeals from the penalty imposed upon the Respondent by its Discipline Committee for unprofessional conduct.

2The Respondent is a medical doctor in family practice in a walk-in clinic. In 2009 and 2010 six of his female patients complained of improper sexual touching. After a contested trial the Committee found that the Respondent had committed unprofessional conduct with respect to five patients. The Committee found that the Respondent had sexually abused four of the patients and committed disgraceful, dishonourable or unprofessional conduct with respect to the fifth. They found the allegations of the sixth complainant not to have been proven. They suspended the Respondent’s licence for six months and imposed restrictions on his practice for 12 months thereafter. They ordered him to take training, to pay $64,000 for therapy for the victims and about $35,000 in costs. The College submits that the penalty was clearly unfit. It says that the Respondent’s licence should have been revoked.

3Sexual abuse constitutes a form of professional misconduct according to s. 51 (1) (b.1) of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.

4It is defined in s. 1 of the Schedule as follows:

(3) In this Code,

“sexual abuse” of a patient by a member means,

(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,

(b) touching, of a sexual nature, of the patient by the member, or

(c) behaviour or remarks of a sexual nature by the member towards the patient.

(4) For the purposes of subsection (3),

“sexual nature” does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided.

Sexual abuse of four patients and two resulting criminal findings of guilt

5Patient U, a woman in her twenties, presented to the Respondent in 2010 with a sinus infection. He examined her chest with his stethoscope. She lifted her clothes at his suggestion. The Respondent placed his stethoscope on several locations on both of her breasts including directly on top of her nipples. He cupped her breasts with his hand. She was instructed to breathe in and out while this was occurring.

6Patient V, a teenager, went to the Respondent’s clinic in 2009 with a sore throat. During his examination the Respondent placed his hand, holding the stethoscope, under her clothes and touched her breasts. He placed his hand under her bra while she was lying supine on the examination table, placing the stethoscope directly on her nipples, on both the left and right breasts.

7Patient W went to see the Respondent in 2010 for a cold. As he listened to her chest with his stethoscope he slid his hand under her clothes and touched her nipples with his fingers. He examined the left side of her chest first. As he was preparing to examine the right side she tried to make it difficult for him to get his hand under her clothes by pulling her shoulders back to tighten her clothing. The Respondent persisted and inserted his hand underneath her bra touching her right nipple. After the examination the Respondent engaged the patient in conversation about her ethnic origin, which is European. He said he liked European women because they are family-oriented, or words to that effect. This increased her already raised level of discomfort.

8Patient X was in her twenties. She went to see the Respondent in 2010 about her sinuses and ears. The Respondent placed his hand, holding his stethoscope, under her bra. He touched her breasts with his hand. His hand cupped her breasts, with his fingers putting pressure on her nipples, which she described as “tweaking”. It was a grasping or pinching of the nipple between two of his fingers.

9With respect to Patients U and W the Respondent pleaded guilty to simple assault in proceedings on indictment and was given a conditional discharge and eighteen months’ probation. The Committee found that these findings of guilt constituted offences relevant to his suitability to practise, which is another form of professional misconduct.

Disgraceful, dishonourable or unprofessional conduct toward Patient Z

10Patient Z, a woman in her twenties, went to see the Respondent in 2010 because of heart palpitations. He performed a chest examination. She lay on her back on the examining table. The Respondent asked her to undo her bra and lift her clothing. He auscultated her chest with his stethoscope while her chest was fully exposed. He touched her left breast with one of his hands, cupping and pushing against the outer aspect of the breast with firm pressure. After the examination he asked her out on a date and invited her to sign a notation on her chart terminating the doctor/patient relationship.

The evidence of the Respondent before the Committee.

11The Respondent told the Committee that his examinations were medically indicated and undertaken for a legitimate medical purpose. He did not deny asking Patient Z out for a date.

12The Respondent denied that he cupped the breasts of any of these patients, auscultated directly on the nipple or tweaked the nipple of any patient. The Committee did not believe him. It found that he had done what each of the complainants said he had done. With respect to Patient Z the Committee found no sexual abuse, but did find misconduct in the form of disgraceful, dishonourable or unprofessional conduct by failing to ensure effective communication about what he was doing in the examination and by asking the patient out on a date at the end of the examination.

Expert evidence on the liability hearing

13The College called expert evidence that it is never necessary to place the stethoscope under a female patient’s bra to auscultate the chest, to place the stethoscope on a patient’s nipple or to auscultate directly over breast tissue. The Respondent called an expert who did not agree on those points, but neither expert gave the opinion that there was a clinical necessity for the Respondent to place his stethoscope directly on the nipple of a patient, tweak the nipples of one complainant or cup the breasts of two complainants with his hand.

14The defence expert testified that doctors risk complaints when the physician is unknown to the patient, the visits are short, the examination does not conform to what the patient expected and the patient has different experience with previous physicians.

The Committee’s findings on liability

15With respect to the four findings of sexual abuse, the Committee said this:

The position of the defence, essentially, is that the complainants misunderstood Dr Peirovy’s actions as sexual in nature, due in part to the presence of risk factors referred to above. The Committee accepts that Dr. Peirovy, in relation to these complainants, was practising in a fashion in which the risks of poor communication and patient misunderstanding were substantial. As will be stated below, however, the Committee finds that the precise and detailed evidence of the four complainants with respect to how Dr. Peirovy touched their breasts is not consistent with misunderstanding as the explanation for their complaints.

16With respect to each of U, V, W and X, the Committee found in identical terms that the touching would be construed as sexual in nature by the objective observer. “Regardless of Dr. Peirovy’s motivation, the deliberate touching [described by the complainant] was a violation of [the complainant’s] sexual integrity and constitutes sexual abuse.”

The penalty phase of the proceeding

17Some months later the Committee reconvened for the penalty hearing. The Respondent called two experts. One was a forensic psychiatrist who assessed the Respondent as a low risk to re-offend. He also gave the opinion that the Respondent is free of significant mental health issues. There is no evidence of personality pathology, a personality disorder or maladaptive personality traits, psychopathy or antisocial tendencies or sexual deviance or a disorder of sexual preference.

18The second expert testified as to work done by the Respondent to remediate his deficits in interviewing skills, his awkward manner, his verbal communication, his awareness of issues pertaining to patient consent, his sensitivity to how his patients were perceiving him and how his behaviour was affecting his patients. This expert testified that the Respondent was largely unaware of his professional responsibilities in maintaining appropriate boundaries in the doctor/patient relationship.

19The Committee was referred to a number of decisions of the Committee in which doctors were given suspensions ranging from three to six months in similar circumstances. The College submitted to the Committee that in spite of these decisions, it had to recognize that community standards of tolerance for the sort of behaviour in question have evolved, and that a penalty short of licence revocation would not be adequate.

20The Committee accepted that the maintenance of public confidence is a “shifting standard.” In this regard counsel for the College referred to the College’s Revised Draft Sexual Abuse Principles of September 10, 2015, which would propose more severe penalties for incidents of sexual abuse which have historically not been subject to mandatory revocation. It said:

Maintaining public confidence in the integrity of the profession, while certainly of great importance is, however, just one of several factors to be considered by the Committee in arriving at an appropriate penalty. The protection of the public is generally taken as the paramount principle. Although the two principles are not identical and there will be cases where the egregious nature of the misconduct itself will demand revocation even where the risk of re-offence is low, a well-informed public would be expected to maintain confidence in a self-regulating process which results in the public being protected from abusive physicians.

21The Committee gave the expert evidence a prominent place in its reasoning with respect to the motivation or explanation for the misconduct. It said:

In Dr Peirovy’s case, the Committee does not fully accept the College’s submission that his sexual actions with the four victims are unexplained. What does remain unclear is a full understanding of Dr. Peirovy’s motivations. The expert evidence, however, now effectively rules out psychopathy or sexual deviance, and this is an important finding with respect to the issue of Dr. Peirovy’s motivation. While this finding itself does not completely rule out a degree of prurient interest in his patients on Dr. Peirovy’s part, it does improve the prognosis and lessens the risk of re-offence.

Further the Committee was of the view that we do in fact understand some of the antecedents to Dr. Peirovy’s sexual misconduct. This, again, has been confirmed by the expert evidence. Dr. Peirovy is a physician who, at the time this misconduct occurred, had very serious deficits in his communication skills, his sensitivity to the extent of his patients’ vulnerability and his understanding of boundaries and consent. These deficits in no way diminish or excuse the fact that he repeatedly subjected several patients to abusive experiences. In the view of the Committee, however, Dr. Peirovy’s awkward, unskilled and non-empathic manner with his female patients was a factor in understanding his abusive behaviour.

The fact that Dr. Peirovy’s sexual misconduct with these four patients occurred in fairly close succession, over a time frame of several months, and continued to occur even after he was aware that a complaint had been made, was considered by the committee. The committee did not, however, infer that this pattern is indicative of predatory intent or uncontrollable deviant urges on Dr. Periovy’s part, and thus a serious aggravating factor. In fact, the expert evidence appears to rule out motivation of this nature. Another possible inference is that this pattern reflects a physician who was genuinely and completely unaware of the ways in which his behaviour in relation to his patients was in fact abusive. It is significant that, since 2010, there have been no further complaints. Dr. Peirovy has been chaperoned during this entire time. The Committee concluded that with a chaperone present Dr Peirovy can continue to practise safely.

The positions of the parties on the Application

22The Appellant says that the Committee’s penalty decision is unreasonable in that it contains errors in principle, to wit:

a. The facts on which the penalty decision is based are inconsistent with the findings made on the liability decision;

b. The Committee failed to consider changing social values; and

c. The penalty is grossly disproportionate to the gravity of the conduct.

23The Respondent says that there is no inconsistency in the findings of fact, the Committee expressly considered changing social values, and the penalty is not grossly disproportionate to the conduct. The penalty is in line with penalties imposed in similar circumstances. The Respondent underlines the deference that is owed this expert tribunal, especially on questions of penalty.

The standard of review

24The Committee is a specialized administrative tribunal of a self-regulating profession. The standard of review is reasonableness: Groia v. The Law Society of Upper Canada, 2016 ONCA 417. The decision of such a tribunal will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived: Law Society of New Brunswick v. Ryan, 2003 SCC 20, para. 55.

25A penalty decision of such a tribunal is at the heart of its discretion and is due great deference: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (Div. Ct), para. 98; Groia, para. 232; Ryan, para. 42; Mussani v College of Physicians and Surgeons of Ontario (2004), 74 O.R. (3d) 1, para. 113.

26To overturn a penalty, the decision-maker must have made an error of principle, or the penalty must be clearly unfit: Reid, para. 99.

The principles applicable to penalty

27The range of penalties available in the present case is set by subss. 51 (2) and (5) of the Health Professions Procedural Code, which provide:

(2) If a panel finds a member has committed an act of professional misconduct, it may make an order doing any one or more of the following:

1. Directing the Registrar to revoke the member’s certificate of registration.

2. Directing the Registrar to suspend the member’s certificate of registration for a specified period of time.

3. Directing the Registrar to impose specified terms, conditions and limitations on the member’s certificate of registration for a specified or indefinite period of time.

4. Requiring the member to appear before the panel to be reprimanded.

5. Requiring the member to pay a fine of not more than $35,000 to the Minister of Finance.

5.1 If the act of professional misconduct was the sexual abuse of a patient, requiring the member to reimburse the College for funding provided for that patient under the program required under section 85.7.

5.2 If the panel makes an order under paragraph 5.1, requiring the member to post security acceptable to the College to guarantee the payment of any amounts the member may be required to reimburse under the order under paragraph 5.1.

(5) If a panel finds a member has committed an act of professional misconduct by sexually abusing a patient, the panel shall do the following in addition to anything else the panel may do under subsection (2):

1. Reprimand the member.

2. Revoke the member’s certificate of registration if the sexual abuse consisted of, or included, any of the following,

i. sexual intercourse,

ii. genital to genital, genital to anal, oral to genital, or oral to anal contact,

iii. masturbation of the member by, or in the presence of, the patient,

iv. masturbation of the patient by the member,

v. encouragement of the patient by the member to masturbate in the presence of the member.

28Thus in the present case the Committee was authorized to revoke the Respondent’s certificate of registration, but it was not required to do so. Under s.72 of the Code, revocation would have disqualified the Respondent from practising medicine for at least five years, after which he would have been able to apply for re-admission.

29The purposes of imposing penalty in discipline proceedings are protection of the public, maintenance of public confidence in the integrity of the profession and the principle of self-governance, deterrence and the potential for rehabilitation of a member: College of Physicians and Surgeons of Ontario v. Minnes, 2015 ONCPSD 3, aff’d 2016 ONSC 1186 (Div. Ct).

30In addition, with respect to sexual abuse, s. 1.1 of the Code provides:

1.1 The purpose of the provisions of this Code with respect to sexual abuse of patients by members is to encourage the reporting of such abuse, to provide funding for therapy and counselling for patients who have been sexually abused by members and, ultimately, to eradicate the sexual abuse of patients by members.

Inconsistent findings of fact

31Based on the psychiatric evidence, the Committee dismissed the inference that the pattern of behaviour indicated predatory intent or uncontrollable deviant urges, and therefore a serious aggravating factor. It then observed, “Another possible inference is that this pattern reflects a physician who was genuinely and completely unaware of the ways in which his behaviour in relation to his patients was in fact abusive.”

32There are two problems with this reasoning. First, the number of offences was itself aggravating, without predatory intent and deviant sexual urges. Second, in view of the finding on the liability phase that the Respondent deliberately touched the four complainants in a way that an objective observer would find to be sexual and in accepting the complainants’ evidence that the touching was, to them, “blatantly sexual” there is no line of analysis that could reasonably lead the tribunal to conclude that the Respondent’s awkward, unskilled and non-empathic manner was a factor in understanding his abusive behaviour or that it could reasonably infer that he was genuinely and completely unaware of the ways in which his behaviour in relation to his patients was in fact abusive.

33Moreover in the case of Patients U and W such an inference was inconsistent with the finding of guilt for criminal assault.

34Psychopathy and deviant sexual urges were beside the point. The Respondent cupped breasts, tweaked nipples and placed a stethoscope on breasts and nipples. The Committee found that he had no legitimate medical purpose for doing so. The Respondent did not claim any legitimate purpose for doing so. He said that he had not done so. His motivation can have been nothing but sexual. The Committee proceeded as if they had only ascribed to the Respondent the misconduct that they found in the case of Patient Z. The Committee based the penalty on a hypothetical set of facts that was inconsistent with facts that they themselves had found in the liability hearing.

35It was also unreasonable for the Committee to find that the conduct vis-à-vis the four complainants would be seen by the objective observer as a violation of their sexual integrity, but that a highly trained professional with no significant mental health issues would not necessarily appreciate the same thing.

Fitness of sentence

36In my view it was an error for the Committee to proceed on the basis that revocation of registration is reserved for egregious conduct or offenders with a high risk to re-offend. Most egregious conduct would involve sexual contact that makes revocation mandatory. Risk of recidivism is relevant to penalty, but the Code does not make it a condition precedent to revocation of registration. The goal of the legislation is expressed to be the eradication of sexual abuse in the profession. A stated means of achieving that goal is encouraging complainants to come forward. There is less reason for them to put themselves through the process if the committee does not give sufficient weight to general and specific deterrence.

37In the space of a few months the Respondent sexually abused four young women. The misconduct had significant consequences for each of them, which are documented in their impact statements. These statements also document the serious effect the offences had for the profession. These women have lost much of their trust in doctors, especially male doctors. A short suspension is clearly inadequate to deter others and to contribute meaningfully to the eradication of sexual abuse in the profession.

38The main justification given by the Committee and the Respondent for the penalty imposed is that it is in line with similar penalties that have been imposed in similar cases. The Respondent referred us to Le, [2010] OCPSD No. 10; Marks, 2012 ONCPSD 13; Li, [1996] OCPSD No. 12; Maharajh, [2013] OCPSD No. 30; Rakem, 2014 ONCPSD 25; Lee, [2010] OCPSD No. 8; and Sharma [2004] OCPSD No. 31. The facts of these cases are base. It is depressing to review them. 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. The penalty imposed in the present case was clearly unfit. It was inadequate to protect the public and vindicate the integrity of the profession.

39Public confidence in the profession is not a “shifting standard.” Rather I think that community tolerance for sexual abuse by doctors has lessened. The public’s confidence in the medical profession demands more from the disciplinary process than recent sexual abuse discipline cases suggest. In the case of sexual touching of breasts of multiple female patients under pretense of a medical exam, I would expect the Committee to be debating whether to revoke the member’s registration or impose a suspension measured in years, as opposed to months.

Conclusion and order

40I would allow the appeal, quash the penalty imposed and remit the matter to the Committee to impose a penalty. As agreed by the parties, costs of the appeal are awarded to the Appellant and fixed at $7,500.

Ramsay J.

I agree: ________________________________

Molloy J.

I agree: ________________________________

Dambrot J.