Appeals court upholds suspension of MD in sex abuse cases
Refusal to revoke Javad Peirovy’s medical licence is met with criticism from victim
A six-month licence suspension was “reasonable” for a Toronto doctor who sexually abused four female patients, the Ontario Court of Appeal ruled Thursday in a decision that reversed a lower-court ruling.
While declaring that Dr. Javad Peirovy’s conduct was “reprehensible” and “should be roundly condemned,” the majority of a three-judge panel found that the suspension imposed in 2016 by a discipline committee of the College of Physicians and Surgeons of Ontario was appropriate under the circumstances.
“It’s a failure, an absolute failure brought on by a broken system,” Temerra Dixon, one of Peirovy’s victims, told the Star.
“To have a doctor, whose whole profession is built on trust, sexually abuse patients and continue to practise is reprehensible. I’m devastated. After eight years, there is no justice,” said Dixon.
The decision is also a blow to Ontario’s medical regulator and its message of zero tolerance for sexual abuse. The college has spent the past two years arguing at two levels of court that its own discipline committee, made up of doctors and members of the public and which acts independently of the college, failed in the Peirovy case, and should have revoked his licence.
The college was successful on an appeal to Divisional Court, where the judges blasted the discipline committee and ordered that a new penalty hearing be held. But Peirovy appealed to the Court of Appeal, where the majority sided with him in Thursday’s ruling.
“The discipline committee’s penalty should be restored,” wrote Justice Paul Rouleau, joined by Justice Lois Roberts.
“Dr. Peirovy’s behaviour was reprehensible. However, the discipline committee is the expert tribunal created by the legislature to assess allegations of misconduct in the medical profession and to determine the penalty appropriately tailored to the circumstances of each case.”
In a dissenting opinion, Justice Mary Lou Benotto said she would have dismissed Peirovy’s appeal, calling the sixmonth suspension “clearly unfit.”
The college said it is reviewing the appeal ruling. “Although we are disappointed with the outcome of the court’s decision, we are heartened to know that as a result of recent amendments made to the college’s legislation, a similar finding would result in automatic revocation of a health professional’s licence,” said interim college registrar Dan Faulkner in a written statement
Peirovy’s lawyers did not return the Star’s request for comment. In finding him guilty of sexual abuse, the discipline committee said that in 2009 and 2010, Peirovy 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 CPSO’s lawyers have always argued that the committee’s decision on guilt is inconsistent with its later decision on punishment.
With regards to guilt, 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,” the college had argued at the Court of Appeal.
In its penalty decision, the panel — chaired by former CPSO president Dr. Marc Gabel, and including Dr. John Watts, Dr. Robert Sheppard and community member Diane Doherty — largely accepted the evidence of a forensic psychiatrist.
It found Peirovy was embarrassed by his actions, did not have a “sexual motivation” and can improve through counselling.
Rouleau described the committee’s findings as “nuanced” and said the six-month suspension was within the range of penalties previously imposed by discipline panels for similar and more egregious conduct.
He said the Divisional Court should not have intervened by effectively retrying the case and ordering a new penalty hearing.
(The Divisional Court had called the six-month suspension “clearly unfit” and described previous punishments handed down by the discipline committee in cases of sexual abuse as “a litany of clearly unfit penalties.”)
“Deference is owed to discipline committees because they are tribunals composed of members of the profession and of the public with the expertise to assess ‘the level of threat to the public and the ... profession by certain forms of behaviour,’” Rouleau wrote.
In her dissenting opinion, Benotto found the Divisional Court had in fact identified “significant errors in principle in the discipline committee’s reasons.”
“I recognize that the penalty imposed was within the range of penalties imposed in past discipline committee decisions involving sexual abuse. However, reasonableness is not a static concept and ranges are not set in stone,” Benotto wrote.
“Our collective social conscience is continuously chang-
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ing. What was once reasonable may no longer accord with the modern conscience. Where society has evolved such that a range no longer reflects societal values, there is reason to question the validity of the range. In this case, the discipline committee imposed a penalty that failed to fulfil its mandate and is clearly unfit.”
Having served his suspension, Peirovy now practises at the walk-in clinic at Ultimate Diagnostics in North York. One of the conditions on his licence is that he not practise on women unless in the presence of a female health professional.
“The conditions placed on Dr. Peirovy demonstrate a lack of confidence in his ability to practise medicine,” Benotto wrote.
“It is unreasonable for a patient to attend a walk-in clinic with a physician who requires a chaperone with half the world’s population and which features a prominent sign indicating his limited capacity. Such conditions — in these circumstances — belies the trust inherent in the doctor-patient relationship, undermines public confidence, and fails to protect the public.”
Peirovy pleaded guilty in 2013 to two criminal charges of simple assault relating to two of the patients who were later the focus of his discipline hearing at the college.
He was given a conditional discharge and 18 months’ probation and was ordered by the court to take counselling.
The landscape in the health professions with regards to sexual abuse has changed dramatically since the Peirovy case was first heard by the discipline committee.
In 2017, the provincial government amended the law following a Star investigation into doctors who continued to work after been found to have sexually abused their patients.
It is now mandatory for discipline panels to revoke a health professional’s licence for groping.
Ontario Health Minister Helena Jaczek said in a statement that she was “disappointed” with the court’s ruling, and is reviewing advice from an external consultant regarding the College of Physicians.