CPSO’s comments highlight disciplinary panel independence

WCPSO_91bhile it’s unusual the College of Physicians and Surgeons of Ontario (CPSO) would express “disappointment” about a decision by its disciplinary committee, the regulator’s comments about the case of a physician who sexually abused patients and didn’t lose his licence highlight the independence of the disciplinary committee, Toronto health lawyer Elyse Sunshine says. 

“I think there is a perception that disciplinary committees of health professional colleges are somehow tainted, or in cahoots with the regulator, but I think this case and the comments from the registrar illustrate that the two are completely separate and that CPSO has no influence over the discipline committee — I think that’s important,” she tells AdvocateDaily.com.

“I think there is a perception that disciplinary committees of health professional colleges are somehow tainted, or in cahoots with the regulator, but I think this case and the comments from the registrar illustrate that the two are completely separate and that CPSO has no influence over the discipline committee — I think that’s important,” she tells AdvocateDaily.com.

“Whether or not you agree with the committee’s decision in this matter, it demonstrates this is true self-regulation.”

Sunshine, partner at Rosen Sunshine LLP, comments on the case of Dr. Javad Peirovy, who sexually abused four female patients in a year at a walk-in clinic. While the College requested that the panel, which is independent of the regulator, revoke his licence, the disciplinary committee decided that he would keep his licence. Instead of revoking it, the panel suspended the doctor and in six months, he will be back to work, reports the Toronto Star.

In response, the College made a rare statement to the Star about the decision.

“The College is disappointed in the discipline panel’s decision not to revoke Dr. Peirovy’s licence,” said College registrar Dr. Rocco Gerace.

“Council supports revisions to the legislation that would require mandatory revocation in any case where physical sexual contact with a patient is proven to have occurred.”

The College has also said it’s looking at its appeal options for the committee’s decision, says the Star in another article.

The College proposed last year that provincial legislation be changed so that “all physical sexual contact between a physician and patient” would lead to mandatory revocation of the licence, says the article.

The current Regulated Health Professions Act (RHPA) states that licence revocation is mandatory for some forms of sexual abuse, including penetration, oral sex and masturbation; sexual touching remains a grey area, and the disciplinary panel hearing the case has discretion about whether to revoke a licence, says the newspaper.

In this case, the committee found Peirovy guilty last July of “acts of professional misconduct in that he engaged in the sexual abuse” of four patients.

“In the case of two patients, Ms U and Ms V, he placed his stethoscope on their nipples and cupped their breasts. Regarding Ms W and Ms X, he touched their nipples when ‘there was no clinical reason’ to examine the women in that way, the panel found,” says the Star.

Peirovy pleaded guilty in criminal court in 2013 to two counts of assault and was given a conditional discharge and 18 months’ probation; the court also ordered him to take counselling, says the article. He was initially charged with sexually assaulting six female patients and after pleading guilty to two of the offences, the Crown withdrew charges relating to the other four women.

The disciplinary panel, in its decision, says the doctor is at a low risk to reoffend and can practise on female patients in the presence of another female health professional, says the newspaper.

Sunshine, who wasn’t involved in the matter and speaks generally about it, says it appears as if the committee relied upon the evidence from a respected forensic psychiatrist, Dr. Jonathan Rootenberg, who felt that the doctor was not at a risk to reoffend.

“That is perhaps an important factor for the committee to have considered when they were looking at their findings of fact and applying the sentencing principles to the general circumstances of the case in order to determine an appropriate order — it appears to have been influential in the committee’s decision,” she says.

Sunshine says the disciplinary committee’s decision also has to be considered in the content of the existing law.

In December 2014, the province launched a task force to study sexual abuse among health-care professionals. That report hasn’t yet been released, but after the Star’s story this week about Peirovy, Health Minister Dr. Eric Hoskins told the newspaper that he wants to wait until the task force’s report is released before looking at changing the RHPA.

Sunshine says, “If there needs to be changes to the legislation, which is what the health minister and the task force are looking at, that is somewhat a different issue from this case because the committee made its decision in accordance with the law as it stands today.

“While the panel did have discretion to order revocation, it wasn’t mandatory for the type of conduct that was at issue in this particular hearing,” she says.

Sunshine says it’s important to note that the sexual abuse provisions in the legislation apply to all regulated health professionals, not just physicians and that may be why the task force is taking some time to make changes to the law.

“Some of the complicating factors deal with the fact that we have this umbrella legislation that applies to all health professions,” she says. “The task force has to consider how the changes are going to apply to all health professions, not just physicians. In certain health professional/client relationships, such as between a pharmacist and a patient, the vulnerabilities are different.”

Sunshine says the College can appeal the committee’s decision in the Peirovy matter at the Divisional Court.

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