The College of Physicians and Surgeons of Ontario is battling in court to have Dr. Javad Peirovy’s licence revoked, arguing that public safety was at “significant risk” while he practised at a Toronto walk-in clinic.

Lawyers for Peirovy, who was found guilty by a CPSO discipline committee last year of sexual abuse for groping four female patients, argue the six-month suspension for his misconduct was “reasonable.”

The case has become the prime example this year of what critics say are major gaps in outdated legislation designed to protect patients in Ontario, which the provincial government has failed to quickly fix.

“The penalty imposed was well within the reasonable range of penalties for similar, and indeed more serious recent cases of sexual abuse by physicians,” Peirovy’s lawyers, David Porter and Jordan Katz, argue in their factum (written submission) recently filed in Divisional Court.

“There is no basis for this honourable court to interfere with the reasonable penalty that the committee imposed.”

Under the Regulated Health Professions Act (RHPA), nearly every form of sexual abuse, including penetration, oral sex and masturbation, leads to the mandatory revocation of a physician’s licence.

But discipline committees, which are independent of the college, are given discretion when it comes to imposing punishment for other instances of sexual abuse, including groping.

In Peirovy’s case, a four-member panel chose to suspend him in April rather than revoke his licence, despite being urged to do so by the college’s lawyer. That decision led to a rare public rebuke by the college’s registrar.

The CPSO has turned to the court in the hope that it will order a new disciplinary hearing, where the college will again argue for revocation of Peirovy’s licence. The appeal is set to be heard Dec. 6.

Peirovy’s suspension ended on Oct. 27. According to the CPSO’s public register, he now works at Ultimate Diagnostics, which includes a walk-in clinic, in North York.

As part of the conditions on his licence, he can only practise on female patients in the presence of a female health professional approved by the college.

The CPSO declined to comment on the submission from Peirovy’s lawyers, while Porter did not return a request for comment.

The decision to suspend Peirovy “is indicative of a long and ongoing concern about the role of the discipline committee in protecting the public,” said medical malpractice lawyer, Paul Harte, who is not involved in the case.

“Far too often, they focus on the doctor and not on the conduct. Far more doctors should be losing their licences.”

As a result of a 2014 Star investigation that found some physicians were still practising despite being found to have sexually abused patients, Health Minister Eric Hoskins launched a task force to study the issue.

After making its recommendations public in September, Hoskins promised to propose amendments this fall to the RHPA to, among other things, ensure that all forms of sexual abuse lead to the mandatory revocation of a physician’s licence — changes that are supported by the CPSO.

In their factum, Peirovy’s lawyers correctly highlight that there is currently no law or regulation that would have forced the discipline committee to yank Peirovy’s licence for groping.

And even if the law had been changed before the suspension was imposed, they argue that it should not apply to the doctor because it post-dates his misconduct, which took place in 2010.

Following the recommendations of a different task force more than 20 years ago, the legislature “specifically elected to impose a mandatory penalty of revocation only for those forms of ‘frank’ sexual abuse” listed in the RHPA, says the factum.

“This demonstrates the intention that the discipline committees of the colleges of regulated health professions should retain discretion to impose appropriate penalties for other forms of sexual abuse, including those found to have been committed by Dr. Peirovy in this case,” says the factum.

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“In any event, the committee was clearly in the best position to determine the impact of contemporary societal values regarding physician sexual abuse on the appropriate penalty in this case.”

Peirovy pleaded guilty in criminal court in 2013 to two counts of simple assault after initially being charged with sexually assaulting six female patients. He had earlier pleaded not guilty to sexual assault in those two cases, and the charges relating to the other four women were withdrawn by the Crown.

Peirovy was given a conditional discharge and 18 months’ probation and was ordered by the court to take counselling.

After the criminal case was over, Peirovy was found guilty in 2015 by the college’s discipline committee of sexually abusing four female patients in the span of one year at a Toronto walk-in clinic, leaving them “traumatized.”

In the case of two patients, he placed his stethoscope on their nipples 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 panel found.

“If Dr. Peirovy is able to continue practising as a doctor in Ontario, in Canada, it will be a gross injustice to his victims (me) and an insult to the citizens of this province,” said one of his victims, Temerra Dixon, in a portion of her victim impact statement that the college would not allow her to read at Peirovy’s penalty hearing.

She provided a copy to the Star after going public with her story in May.

The discipline panel, chaired by former CPSO president Dr. Marc Gabel, largely relied on the evidence of forensic psychiatrist Dr. Jonathan Rootenberg, and found that Peirovy was embarrassed by his actions, is at a low-risk to reoffend and would be capable of practising with counselling and training.

Peirovy’s lawyers point out that “the committee did not find that he intended to violate (the patients’) sexual integrity, rather it found that regardless of his motivation, the touching objectively, and as experienced by the patients, was a violation of their sexual integrity and therefore was sexual abuse.”

The doctor denied any sexual interest in the patients or that his touching had been sexually motivated, says the factum.

“Practising medicine is not a right, it’s a privilege, and it’s a privilege which comes with appropriately onerous obligations. And one of those obligations is that you don’t assault a patient,” said Harte, the medical malpractice lawyer.

“Whether you have or do not have a sexual intention, it’s the impact on the patient that is important, not the professional. And the college should be out to protect the patient.”

Jacques Gallant can be reached at jgallant@thestar.ca