A doctor accused of angrily holding a pillow over a 94-year-old patient's face, and "bullying and belittling" a colleague, can keep his job, the Industrial Relations Commission has ruled.
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The doctor, who can be known only as Dr A, was trying to perform a bladder scan on the patient at a NSW hospital, but the elderly man - who was delirious - struck out, resisted and spat in his face.
Dr A told the commission that in "the spur of the moment" he got a pillow and held it 10 centimetres above the patient's head to shield himself from the spit.
He said the pillow did not come into contact with the patient's face during the incident on May 26 last year, except possibly when the man was moving his head around in a "violent manner".
But two other doctors and a nurse gave evidence that they saw Dr A pressing the pillow down on the patient's face for several seconds, while another nurse described seeing him hold it across the elderly man's face.
One of the doctors, known as Dr C, recalled: "I remember Dr A, immediately after being spat at, pulling the pillow from behind the patient's head and holding it down over the patient's face hard."
She said it was "quite a horrible and disturbing thing to see".
Another doctor, known as Dr B, told the commission: "He just pushed the pillow on to the patient's face. I did not say anything to Dr A because I was too shocked."
The patient was not physically harmed, the commission heard.
Dr C reported the incident to a superior, and also said that Dr A had "bullied and belittled" her during the course of their work.
After the health district's internal review found the allegations about the pillow to be upheld, the chief executive terminated Dr A's employment in November, but that decision was put on hold while the doctor challenged the move. In the meantime, he was suspended without pay.
The matter was referred to the Medical Council of NSW and the Health Care Complaints Commission (HCCC), and in March a panel of two medical practitioners recommended no further action be taken.
Dr A lodged unfair dismissal proceedings before the IR commission, denying the allegations and arguing none of his colleagues were in a position to see how close the pillow came to the patient's mouth.
Late last week, acting Justice Roger Boland said it could not be proved Dr A "forcefully applied" the pillow to the patient's face, in part finding that not all witnesses were standing in positions to accurately see the alleged actions of the doctor.
But acting Justice Boland said Dr A "used the pillow inappropriately as a spit shield, which was an affront to the patient's dignity and disrespectful", and said he should be monitored and counselled in future.
In August, Health Minister Jillian Skinner announced the government would legislate to improve the transparency of health complaints following the case of neurosurgeon Suresh Nair.
In June Fairfax Media published revelations that Nair, a neurosurgeon at Nepean Hospital, was allowed to perform complex surgery on hundreds of patients over a five-year period despite the Medical Council of NSW and the HCCC being fully aware of his chronic, ongoing cocaine addiction.
