Doctors and Discipline: Deference to the Penalty Decision in College of Physicians and Surgeons of Ontario v Peirovy
On January 17, 2017, the Divisional Court at the Ontario Superior Court of Justice ruled on College of Physicians and Surgeons of Ontario v Peirovy, 2017 ONSC 136 [Peirovy], creating questions about the degree of deference courts should afford to disciplinary committees in self-governing professions.
Peirovy has since been granted to leave to the Ontario Court of Appeal, with a hearing scheduled in late November 2017. As Peirovy is an appeal regarding the sexual abuse of patients by a medical professional, it is of particular public interest to determine whether the courts can interfere with a disciplinary proceeding, and whether the Ontario Court of Appeal will do so in this case. Given the public opinion that doctors who commit sexual abuse towards patients are given sentences that are too lenient, Peirovy gives rise to a tension between judicial deference and public interest.
When a doctor practicing in Ontario is accused of professional misconduct, they will go before a hearing with the Discipline Committee of the College of Physicians and Surgeons of Ontario (“the Committee”). Opposing the doctor is a representative from the College of Physicians and Surgeons of Ontario (“the College”). The College needs to prove, on a balance of probabilities, that the doctor committed the actions that would constitute professional misconduct. The Committee makes the factual determination that the actions occurred, and the legal determination that it constituted professional misconduct.
Six patients accused Dr. Javad Peirovy of committing sexual abuse over a series of visits between 2009 and 2010. The complainants testified that Dr. Peirovy, among other actions, had groped their breasts and asked inappropriate questions. In a decision dated July 17, 2015, the Committee made a finding that Dr. Peirovy had sexually abused four of the six patients, and that his conduct against a fifth patient could reasonably be regarded as “disgraceful, dishonorable, or unprofessional” (Ontario [College of Physicians and Surgeons of Ontario] v Peirovy, 2015 ONSCPSD 30).
At Dr. Peirovy’s subsequent penalty hearing, the College argued for his licence to be revoked. In response, defence counsel argued for a four-month licence suspension. The Committee gave an order for a six-month suspension.
In a rare and surprising move, the College appealed the Committee’s penalty decision to Divisional Court. In their decision, the Divisional Court found that the Committee’s penalty was unreasonable, based on two reasons: the Committee should have recognized Dr. Peirovy’s behavior could not be justified with anything other than sexual motivation, and that the penalty was not fit for the egregiousness of Dr. Peirovy’s behavior.
The Divisional Court rejected a slew of previous cases where similar conduct was given penalties that were similar or lighter than Dr. Peirovy’s sentence. To do so, the Divisional Court notes the systemic issue of sexual abuse in the medical profession and its negative impact on public confidence. The Divisional Court quashed the Committee’s penalty decision and remitted the matter back for a new penalty hearing. They concluded with a strong rebuke, stating: “[the Committee] should be debating whether to revoke [Dr. Peirovy’s] registration or impose a suspension measured in years…” (Peirovy at para 39).
Extent of deference to professional discipline penalty decisions
Previous case law shows that a standard of reasonableness applies to a disciplinary committee’s penalty decisions (Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041, para 7 [Reid]). Given that the College is a self-governing profession, combined with the discretionary nature of assigning a penalty, reviewing courts must show ‘great’ deference (Sazant v. The College of Physicians and Surgeons, 2011 ONSC 323, para 98 [Sazant]). With a standard of reasonableness, the courts must ask whether the Committee’s penalty “falls within a range of acceptable outcomes” (Dunsmiur v New Brunswick, 2008 SCC 9 at para 43 [Dunsmiur]). The Committee’s penalty and their analysis of the relevant factors in coming to the decision must “stand up to a somewhat probing examination” by the reviewing courts (Dunsmiur, para 20).
Further informing whether a penalty is considered to be unreasonable is when a reviewing court should overturn said penalty. In Reid, it was held that courts should only interfere with a penalty if there is an error in principle or if the sentence is ‘clearly unfit’ (Reid, para 98). Indeed, the Divisional Court found Dr. Peirovy’s sentence to be unfit and thus unreasonable.
Dr. Peirovy’s advantage in his appeal lies in the high level of deference that courts have given disciplinary committees. The Divisional Court’s decision to overturn a disciplinary committee’s penalty based on it being unfit is uncommon. There is little guidance from Ontario case law when a disciplinary penalty is ‘clearly unfit’. It is precedential that the Divisional Court has assigned this label to Dr. Peirovy’s penalty. In previous cases where the disciplinary penalty is appealed, courts have rarely overturned the initial decision, often finding that the disciplinary committee has given a penalty that fell within a range of acceptable outcomes (Reid, para 235; Sazant at para 281). It is surprising to see the Divisional Court completely reject several previous cases from the Committee where they have assigned similar penalties for similar incidents of sexual abuse by doctors. By completely dismissing a large volume of previous cases, the Court may consider that not enough deference was accorded to the Committee and their decision-making expertise.
Public Confidence in the Medical Profession
A potential major challenge facing Dr. Peirovy’s appeal is the need to demonstrate public confidence in the medical profession. In their decision, the Divisional Court overruled the Committee’s penalty after making a finding that the sentence imposed was insufficient to deter other doctors from similar behaviour. The Divisional Court found that the penalty lowered public confidence in the profession overall.
Furthermore, Dr. Peirovy’s appeal comes at a time where there is apparent dissatisfaction from the public on addressing doctor-patient sexual abuse. The Toronto Star has followed Dr. Peirovy’s case closely, and continues to report on doctors who practice despite findings of sexual abuse. In wake of these reports, the Ontario Legislature recently passed the Protecting Patients Act, 2017, S.O 2017, c.11 – Bill 87, which adds greater punishment provisions for doctors found to be sexually abusing a patient, including the mandatory revocation of a medical licence if the doctor is found to touch a patient in a sexual nature.
In his appeal, Dr. Peirovy would need to show that the Committee sufficiently considered the public interest, and so their penalty decision was reasonable. In the Committee’s decision, they do mention the protection of the public and maintenance of public confidence in the profession as a “paramount consideration”. The Ontario Court of Appeal would need to see that the Committee, in weighing their purpose to ensure public confidence in medial practitioners, along with sufficient consideration of the case’s aggravating and mitigating factors, still came to a penalty that fell within a range of acceptable outcomes.
Dr. Peirovy’s appeal will likely provide guidance on when a disciplinary committee’s penalty is “clearly unfit,” and how reviewing courts can come to that conclusion. In light of public attention (and outrage) of doctor-patient sexual abuse, the Ontario Court of Appeal’s decision on how to weigh the importance of public confidence in the integrity of the medical profession will also be of interest. Will the Ontario Court of Appeal follow the reasoning in the Divisional Court and find that the lower penalty was unreasonable in part because it lowers public confidence? Overall, the appeal decision will influence how future disciplinary action should address sexual abuse findings in the medical profession.