The Use of Precedents when Imposing Disciplinary Orders (Part 2)

In another rare example of a College successfully appealing a decision of its own Discipline Committee, the College of Physicians and Surgeons of Ontario has had a sexual abuse matter returned for re-consideration. In College of Physicians and Surgeons of Ontario v Peirovy, 2017 ONSC 136, the physician was found to have inappropriately touched the breasts of four patients under the “pretense” of a medical examination. The Court agreed with the College that a six month suspension was not fit and proper. The discussion ought to be whether the sanction should be revocation or a suspension for years, not months.

The Court said this about the use of past disciplinary precedents (portions of which have been quoted frequently by the media):

The 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 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.

Public 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.

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