WAS THE PENALTY PROPER AGAINST THE DOCTOR?

Dr.  Peirovy practiced medicine in a medical clinic in the Province of Ontario in Canada. In that province like other provinces in Canada, there are administrative tribunals that govern the conduct of medical doctors. In Ontario, it is called, the College of Physicians and Surgeons. Like all other similar Colleges, it has a Discipline Committee that comprises of doctors who decide the fate of doctors who are accused of wrongdoings in their practices.

The College received a series of complaints by this doctor’s patients who were examined by Dr.  Peirovy in his office and in a clinic. His misconduct involved the sexual abuse of four female patients and inappropriate conduct with respect to a fifth at a walk-in family medicine clinic in 2009 and 201

The allegations against him included claims that while examining patients with a stethoscope, he cupped patients’ breasts, touched patients’ nipples, placed his stethoscope directly on patients’ nipples and in one instance “tweaked” or squeezed a patient’s nipple.

The female breast is private and sensitive both physiologically and emotionally. Female patients have a right to expect that physicians will understand and respect their privacy when examinations of this nature are being conducted. A violation of the sexual integrity of a patient, including the deliberate touching of a patient’s breast without her consent and for no proper medical reason, constitutes sexual abuse.

Dr. Peirovy’s conduct constituted violations of the sexual integrity of the complainants, regardless of his motivation, considering his deliberate touching of the complainants’ private and sensitive areas without their consent and for no necessary medical reason.

The trouble with these medical sex offenders is that they let their penis control their minds.

The Discipline Committee therefore found Dr. Peirovy guilty of sexual abuse in relation to the four patients. In each case, the abusive conduct consisted of medically unnecessary touching of the breast or nipples of the patients during medically required chest examinations conducted using a stethoscope.

The Discipline Committee also found that Dr. Peirovy had asked a fifth patient on a date immediately following his medical examination of her during which her breasts were exposed. While not found to be sexual abuse, that conduct, as well as the four sexual abuse incidents, constituted disgraceful, dishonourable and unprofessional conduct.

The Discipline Committee was also informed that Dr. Peirovy had previously pleaded guilty in a court to simple assault of two of the complainants in relation to these same incidents. These convictions, for which Dr. Peirovy received a conditional discharge, were considered relevant to his suitability to practice. The Discipline Committee considered these convictions to be proof of professional misconduct.

  Several months later, the Discipline Committee held a separate hearing on penalty during which it heard evidence from two experts: Dr. Rootenberg, a forensic psychiatrist, who specializes in the assessment and treatment of persons who have committed sexual and other offences, including their risk of re-offending; and Dr. Martin, an educational consultant in the Office of Post-Graduate Medicine at the University of Toronto with a PhD in curriculum teaching and learning, who specializes in assisting physicians with patient communications, boundary awareness and maintenance and remediation training and has provided remedial training to over 100 physicians on referral from the College. Their qualification as experts in these areas was not challenged by Dr. Peirovy.

The Discipline Committee accepted the expert evidence of Dr. Rootenberg that Dr. Peirovy did not meet the diagnostic criteria for psychopathology or sexual deviance, which, he testified, is relevant with respect to relapse and prevention. Dr. Rootenberg’s opinion was based on numerous sources, including assessment interviews he conducted with Dr. Peirovy, assessment interviews conducted by a forensic psychologist and forensic social worker, and information obtained from collateral sources including the managers of the two medical clinics where Dr. Peirovy currently practices. Dr. Rootenberg also drew from the Discipline Committee’s liability decision, and the evidence given and exhibits filed at the liability hearing.

The Discipline Committee also accepted the expert evidence that the risk of Dr. Peirovy re-offending by committing further sexual transgressions in the future was low. In Dr. Rootenberg’s view, Dr. Peirovy had worked hard to understand his inappropriate behaviour, was very embarrassed and ashamed of what he had done, and was sincere in his desire that this not happen again.

I realize that some of my readers will feel that once a  doctor commits any form of sexual abuse, he should have his licence revoked.

It comes down to just how serious the abuse was and how often it was done. Any sexual abuse is serious but there are degrees of seriousness. In my opinion, this man’s sexual abuse was in the low end of seriousness. If there was no hope of him reforming, then he should have his licence revoked. However, the specialists who interviewed him came to the conclusion that he will no longer be a danger to his patients and I am not qualified to say that they were wrong in their conclusions. 

Dr. Martin’s expert evidence was relevant to the issues of remediation and risk management that the Discipline Committee was required to consider in determining the appropriate penalty. She highlighted deficits in Dr. Peirovy’s interactive skills with patients that give rise to the same risk factors of misunderstanding by patients outlined by the experts who testified at the liability hearing. The Discipline Committee agreed with Dr. Martin’s assessment of Dr. Peirovy which it summarized as follows:

Dr. Martin’s] assessment of Dr. Peirovy indicated that, in her opinion, he had deficits in a number of areas. These included his interviewing skills, his manner (which was described as awkward and clumsy), 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. Dr. Martin also stated that Dr. Peirovy was largely unaware of his professional responsibilities in maintaining appropriate boundaries in the doctor/patient relationship.

The Discipline Committee also accepted Dr. Martin’s opinion that Dr. Peirovy had made good progress in remedying the deficits identified. She had worked with him from August 2013 to June 2015. Dr. Martin reported that there had been “huge professional maturation”. No concerns had been expressed by the practice monitor. Although the Discipline Committee acknowledged the substantial progress, it nonetheless felt further remediation work was needed as he had not yet taken full responsibility for his actions.

With the benefit of the expert evidence, the Discipline Committee was able to conclude that some of the antecedents to Dr. Peirovy’s sexual misconduct were due to “serious deficits in his communication skills, his sensitivity to the extent of his patients’ vulnerability, and his understanding of boundaries and consent.”

Although the Discipline Committee acknowledged that those deficits “in no way diminish or excuse the fact that he repeatedly subjected several patients to abusive experiences”, the Discipline Committee found as a fact that “Dr. Peirovy’s awkward, unskilled, and non-empathic manner with his female patients was a factor in understanding his abusive behaviour.”

The assessment of the Discipline Committee was however, that a full understanding of Dr. Peirovy’s motivations remained unclear. The expert evidence effectively ruled out psychopathology or sexual deviance, which the Discipline Committee found lessened the risk of re-offence. However, while no finding of sexual motivation was made, a degree of prurient interest in the patients could not be completely excluded.

The Discipline Committee then explained that the fact that four patients had been subjected to sexual abuse in fairly close succession was an aggravating factor. Based on the expert evidence, it declined however to infer that this was indicative of “predatory intent or uncontrollable deviant urges on Dr. Peirovy’s part”. It was at this point that the Discipline Committee suggested that another possible inference that could explain why there were four patients abused in close succession and that was that another possible inference was 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. That certainly is a problem for both the doctor and his patients.

The Discipline Committee ultimately suspended Dr. Peirovy’s licence for six months. He was ordered to submit to a reprimand, and required to pay $64,240 for the victims’ therapy costs and $35,680 in costs of the College’s proceedings. He was also ordered to continue undergoing individualized instruction with Dr. Martin that would focus on consent, boundaries, and doctor-patient communications, and to complete a clinical education program focused on physical examinations.

A number of restrictions were also imposed on Dr. Peirovy’s return to practice. He was prohibited from engaging in any encounter with female patients except under the supervision of a practice monitor approved by the College.

He was also required to post a sign in the waiting room and examination rooms at each of his practice locations advising patients of this restriction. The practice monitor condition could be reconsidered on an application to the Committee after a minimum of one year following his return to practice.

Dr. Peirovy was also required to tell patients how to access the Discipline Committee’s decision if requested and to submit to unannounced inspections of his practice locations and patient charts by the College in order to ensure compliance is being followed.

The doctor wasn’t happy with the findings of the Discipline Committee so he appealed to the Divisional Court in Toronto.

When anyone in Ontario works under the authority of a non-government entity such as the College of Physicians and Surgeons and they don’t like what such a College ruled against them, they can appeal to the Divisional Court for relief. 

The Divisional Court is a branch of the Superior Court of Justice and is one of the busiest appellate courts in Canada. The Divisional Court hears statutory appeals from administrative tribunals in the province, and is the primary forum for judicial review of government action in Ontario. The Divisional Court also has some jurisdiction regarding civil and family appeals.  A proceeding is usually heard and decided by a panel of three judges, but may be heard by a single judge in some circumstances.

The issue before the Divisional Court was whether or not the Discipline Committee made an error in principle or the penalty was clearly unfit.  

Specifically, the court rejected the Discipline Committee’s suggestion that Dr. Peirovy’s unawareness as to how his behavior was abusive could possibly explain the abuse of four patients.

According to the Divisional Court, there was no line of analysis that could reasonably lead the tribunal to conclude that Dr. Peirovy’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.

This possible inference of unawareness drawn by the Discipline Committee was, in the Divisional Court’s view, inconsistent with the finding of fact that there were several offences. More importantly, the inference was considered inconsistent with the Discipline Committee’s finding at the liability stage that Dr. Peirovy had touched the complainants in a way that an objective observer would find to be sexual and which the complainants described as blatantly sexual.

In my opinion, there were several problems with the Divisional Court’s concern. First, the Discipline Committee’s finding was well supported by the testimony of the experts. This includes the College’s expert at the liability hearing, who testified that touching a female patient’s nipple with either the hand or the stethoscope during a lung examination should be avoided because it is medically unnecessary and could be misinterpreted. In addition, the finding was supported by the Discipline Committee’s assessment of Dr. Peirovy’s testimony. Finally, the Discipline Committee did not, as the Divisional Court suggested, find that Dr. Peirovy’s awkward, unskilled and non-empathic manner was the only cause; it simply were of the opinion that it was a factor to consider.

The Discipline Committee specifically considered the significance of the number of incidents. It rejected the inference that Dr. Peirovy had a predatory intent or uncontrollable deviant urges on the basis of the entire record and Dr. Rootenberg’s evidence. This finding was open to the Discipline Committee, as was the inference that this improves the prognosis and lessens the risk of re-offence. It was also open to the Discipline Committee to suggest that the number of incidents, including one that occurred after Dr. Peirovy was informed of a complaint against him, might be explained by his lack of insight as to the abusive nature of his conduct.

It is to be remembered that Dr. Peirovy’s culpability was based on the finding of objectively sexual misconduct. The paramount principle animating the penalty proceedings was, as the Discipline Committee recognized, the protection of the public. In essence, the questions the Discipline Committee had to answer were first, the appropriate sanction for the misconduct, and second, whether it was safe to allow Dr. Peirovy to continue to practice and, if so, what conditions he was subjected to.

The Divisional Court advanced a second basis for it rejecting the Discipline Committee’s suggestion that the several counts of sexual abuse could possibly be explained by Dr. Peirovy’s genuine and complete unawareness of the ways in which his behaviour was abusive. In the Divisional Court’s view, such an inference is inconsistent with Dr. Peirovy having been found guilty of criminal assault on two of the complainants.

In my opinion, this basis of the court is also flawed. The Discipline Committee’s possible inference was not inconsistent with a finding of guilt for simple assault. Simple assault contemplates an unwanted touching. The Discipline Committee found that Dr. Peirovy deliberately touched the complainants in areas that were medically unjustified and that the complainants had not consented to the touching. This is sufficient to support the simple assault convictions. Such inferences are not inconsistent with the finding that Dr. Peirovy lacked understanding with respect to appropriate boundaries, patient consent, and sensitivity to how patients had perceived him. Clearly, there was touching by Dr. Peirovy in a manner that had not been consented to. A sexual motivation need not be proven to support a conviction for simple assault.

The Divisional Court then expressed its view that Dr. Peirovy’s motivation could have been nothing other than sexual. It stated that the Discipline Committee had made such a finding in the liability phase of the hearing and then contradicted itself in its sentencing reasons. The Divisional Court explained that it would be unreasonable for the Discipline Committee to rule at the sentencing phase that Dr. Peirovy did not understand his conduct to be sexual abuse after having found that an objective observer would have considered that it constituted a violation of the patients’ sexual integrity.

The difficulty with the Divisional Court’s position is that it reflects a misunderstanding of the nuanced findings made by the Discipline Committee and misconstrues the objective test articulated in Chase.

The objective test that led to the Discipline Committee’s finding of sexual abuse turned on the perspective of a reasonable observer and did not go so far as to attribute subjective sexual motivation to Dr. Peirovy. As set out earlier, the Discipline Committee was not able to make any clear finding as to the presence or absence of sexual motivation in Dr. Peirovy’s conduct. It was not required to do so in the circumstances of this case, where it found that the sexual integrity of the patients had been violated because private and sensitive areas of the body had been touched without the patients’ consent and without medical necessity. Nevertheless, in fashioning the appropriate penalty, the Discipline Committee was careful to note that a degree of prurient interest could not be completely ruled out. This made clear that it took this possibility into account in designing the penalty imposed.

 It may well be that the conclusions and inferences of the court differed from those reached and made by the Discipline Committee are possible, however the standard of reasonableness is satisfied so long as the explanation given for the conclusion is reasonable even if it is not one that the reviewing court found compelling.

There has to be a determination as to whether the Divisional Court chose and applied the correct standard of review. If that was not the case, then there has to be an assessment of the administrative body’s decision in light of the correct standard of review with respect to reasonableness.

In this case, the Divisional Court chose the correct standard of review. However, in my view, the Divisional Court not only erred in its understanding of the evidence and of the reasons of the Discipline Committee, it effectively sought to retry the case in a manner inconsistent with the proper application of the standards of review. This is contrary to the Supreme Court’s holding in Dunsmuir, that a reviewing court must do more than simply cite the correct standard of review. It must apply it and refrain from substituting its own view for that of the tribunal. The reviewing court must resist the temptation to place itself in the position of the decision-maker of first instance and compare the decision it would have made against the decision actually made at first instance as this approach is prone to undue conclusions of unreasonableness.

There were no inconsistent findings of fact warranting intervention by the Divisional Court. It subjected the reasons of the Discipline Committee to excessive scrutiny, rejecting the reasonable, available findings made by the Discipline Committee and arriving at different factual findings based on its improper reassessment of the evidence. 

  The Divisional Court’s second basis for allowing the appeal was that the Discipline Committee imposed an unfit penalty. As I will explain, the Divisional Court’s analysis was flawed. First, it misunderstood the Discipline Committee’s reasons and misapplied the reasonableness standard of review. As the Divisional Court properly stated, “a penalty decision of such a tribunal is at the heart of its discretion and is due great deference”. (The power to make its own decisions) Nevertheless, the Divisional Court in effect simply substituted its view of what might constitute an appropriate penalty and did not defer to the Discipline Committee’s decision as was required. Furthermore, the penalty imposed was not manifestly unfit but represented the Discipline Committee’s careful consideration of all relevant factors and was within the range of reasonable outcomes.

For an Administration decision to be overturned by a reviewing court, the Discipline Committee would have had to make an error in principle or the penalty had to have  been clearly unfit.

 To be clearly unfit, the penalty must fall outside of the range of reasonableness. A reasonable penalty will be guided by proportionality and an assessment of the range of appropriate penalties dependent upon the facts of each case, and guided by penalties imposed in other similar cases.

The Discipline Committee considered a number of its previous decisions involving the sexual abuse of patients. The factual scenarios in those cases were, like Dr. Peirovy’s case, disturbing. However, they showed that the penalty imposed on Dr. Peirovy was in line with those that have been imposed in Ontario. In fact, a six-month suspension has been imposed for sexual misconduct more egregious than the misconduct at issue in Dr. Peirovy’s case.

The penalty imposed by the Discipline Committee was carefully tailored to the circumstances of this particular case, and fit comfortably within the range of penalties imposed in other similar or more serious cases of sexual abuse of patients. It was based on forensic psychiatric evidence accepted by the Discipline Committee as well as the evidence it heard during the liability phase. It also took into account the progress shown by Dr. Peirovy in addressing some of the concerns. Further, following the lodging of the complaints, Dr. Peirovy had practiced with supervision for about five years without any incident.

The Ontario Court of Appeal later ruled that the decision of the Divisional Court was erroneous and subsequently invalid.

For these reasons, the Court of Appeal allowed the appeal Of Dr. Prirovy and restored the penalty imposed by the Discipline Committee. It awarded Dr. Peirovy his costs in the amounts agreed. Those amounts are $15,000 for the appeal, $1,500 for the application for leave to appeal, and $the 7,500 in the Divisional Court, all of which are inclusive of disbursements and applicable taxes.

If this doctor hadn’t acted in a sexually abusive manner against his patients in the first place, he wouldn’t have had to endure the embarrassment he brought upon himself and what he initially paid  his lawyer for his appeals.