Andrews and Civil Aviation Safety Authority - [2000] AATA 748

DECISION AND REASONS FOR DECISION [2000] AATA 748

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1872

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DANIEL ANDREWS
  Applicant

And CIVIL AVIATION SAFETY AUTHORITY
Respondent

DECISION

Tribunal The Hon Mr R N J Purvis, QC, Deputy President

Date25 August 2000
PlaceSydney

Decision The decision under review is affirmed.

[Sgd] R N J Purvis
Deputy President
CATCHWORDS
AVIATION – Civil Aviation – class 2 medical certificate – whether condition of three monthly urine drug screen justifiable – criminal history – admission to use of drugs – knowingly or recklessly making false and incomplete or misleading statements in relation to application for medical certificate

Civil Aviation Act 1988
Civil Aviation Regulations 1988

REASONS FOR DECISION

25 August 2000 The Hon Mr R N J Purvis, QC, Deputy President

THE DECISION UNDER REVIEW:

This is an application by Daniel Andrews ("the Applicant") for review of a decision made by a delegate of the Civil Aviation Safety Authority ("the Authority") on 11 November 1999. The letter of that date communicating the decision stated as far as here relevant:
"Information required to assess your ability to meet the Class 2 medical standard has been received. A Class 2 medical certificate valid for 12 months has been issued.
When your medical certificate becomes due for renewal, a
collated 3 monthly urine drug screen (including canniboids) with the sample passed in the presence of, and the result certified by a Designated Aviation Medical Examiner (DAME).
will be required in addition to the regular renewal medical examination. …
…
Your Medical Certificate has been endorsed 'RENEW By CASA'. This alerts the Designated Aviation Medical Examiner that he or she is not to revalidate your Medical Certificate at the time you present for your routine medical certificate renewal examination. … You will be issued with a valid Medical Certificate when the Office of Aviation Medicine has assessed you as meeting the required standard.
Please note your Aeromedical Certification is conditional to the above and any variation from the above will render your certification void." (T24)

The reviewable decision as stated in the Statement of Reasons provided pursuant to section 37(1)(a) of the Administrative Appeals Tribunal Act 1975 was to issue to the Applicant:
"… an A Class 2 medical certificate valid for twelve months subject to a condition of collated three monthly urine drug screen (including Cannibodis) with the sample passed in the presence of, and the results certified by, a designated aviation medical examiner (DAME)." (T2, p3)

The Authority stated as background for its decision that the decision of 11 November 1999 was:
"The latest of a number of decisions of the respondent [the Authority] to grant a medical certificate to the applicant subject to a three monthly urine drug screen. The original decision to grant a medical certificate with conditions was made on 18 November 1997, issued after the applicant reported in a medical questionnaire that he had been convicted of possession of marijuana at 19 years of age. At the time, the applicant had been requested to undergo an immediate urine drug screen. But for reasons given in the applicant's letter dated 7 October 1997 … this did not occur immediately. On 12 November 1998, the applicant wrote to CASA indicating his objection to the ongoing urine drug testing. In reply the applicant was sent a letter on 13 January 1999 by the respondent … On 11 November 1999 the respondent determined that it remained appropriate to continue drug screen testing and accordingly the applicant's medical certificate was issued subject to that condition."

In his application the Applicant stated as his reasons for seeking review:
"Decision was made with no genuine consideration.
Decision is not supported by Federal Statutes.
Decision is not supported by the Chicago Convention
Doctor T.S Sham has acted in an unethical and unlawful manner.
Casa have shown no parity in their decision and a lack of regard for aviation safety." (T1)

THE HEARING:

At the hearing of the application the Applicant appeared on his own behalf, the Authority being represented by Mr Wayne Arthur, legal counsel of the Office of Legal Counsel of the Authority. The documents produced by the Authority pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted and marked as Tribunal exhibits T1 – T24. The Applicant and the Authority tendered further documentary material which was admitted into evidence and marked accordingly:
Exhibit No A B C D E F 1 2 3 4 5 Description Reference of Mr Arthur Morgan dated 27 June 2000 Reference of Ms Stephanie Kavallaris dated 28 June 2000 Pathology tests dated 4/2/00 and 26/6/00 Submission by Applicant dated 29 June 2000 plus Attachments A1 to A6 Bundle of documents extracted from personnel file of Applicant Extract from Medical Examiner's Handbook pp1-23 Material produced in answer to summons from Local Court Waverley Statement of Dr Priti Bhatt dated 10 April 2000 Statement of Dr John Lose dated 1 May 2000 Statement of Peter Sydney Wilkins dated 9 June 2000 Diary note of Dr Priti Bhatt dated 10 September 1997.

The Applicant, Dr Bhatt and Dr Lose gave oral evidence. The Applicant and Dr Lose were cross-examined on such evidence.
A CLASS 2 MEDICAL CERTIFICATE:
The Applicant has been in the course of obtaining theoretical aviation knowledge and practical aviation experience, the latter with the Skybird Flying School at Bankstown, in aid of his becoming qualified to be issued with a licence under the Civil Aviation Act 1988 and Civil Aviation Regulations 1988.
Pursuant to regulation 6.05 it is necessary for a person applying for the issue of a Class 2 Medical Certificate to apply to the Authority for it to issue. Regulation 6.06 of the Civil Aviation Regulations 1988 provides as here relevant:
"Medical certificate: issue and refusal
(1)Subject to subregulation (2), CASA must issue a medical certificate to a person who applies under regulation 6.05 if, and only if:
(a)   the person submits to the relevant examinations; and
(b)   the relevant examinations are carried out by a designated aviation medical examiner, or a medical practitioner, who CASA has directed may carry out the examinations; and
(c)   the person answers all questions put to him or her by the designated aviation medical examiner, or medical practitioner, carrying out the examinations that are necessary for the examiner, or practitioner, to find out whether the person meets the relevant medical standard; and
…
(2)CASA must not issue a medical certificate to a person under this regulation if it is satisfied that the person:
(a)   has knowingly or recklessly made a false or misleading statement in relation to the person's application for a medical certificate; or
(b)   does not satisfy the requirements of subregulation (1).
…"

CRIMINAL HISTORY:

The Applicant has a criminal history of drug use and larceny, details of which are as follows:
4 October 1989 2 April 1990 5 February 1996 Waverley Local Court Castlereagh Street Local Court Waverley Local Court Possession of prohibited drug proved and dismissed under section 556A of the Crimes Act Larceny as a clerk. Recognizance $500 to be of good behaviour for 2 years. Possession of prohibited drug, convicted and fined $150.

MEDICAL EXAMINATIONS AND QUESTIONNAIRES:

On 10 September 1997 the Applicant , further to an appointment made by him, attended the surgery of Dr Priti Bhatt, a designated aviation medical examiner. At the time of making the appointment he, in accord with a diary note made at the time by Dr Bhatt's secretary, stated: "one week ago I stopped smoking marijuana" (Exhibit 5). According to Dr Bhatt, sometime shortly prior to the examination that she conducted, on 10 September, the Applicant telephoned her and asked her what tests had to be done as part of the medical examination. The Applicant said to Dr Bhatt that he had used marijuana recreationally for nine years but "had stopped one week ago". She told him that she would double check with the Authority "and get back to him". She was however unable to contact the Applicant, before the appointment on 10 September 1997. According to Dr Bhatt, the Applicant made it clear to her that he was seeking a medical certificate. She explained to him that a urine specimen "for 9-THC" was necessary. The Applicant wanted to know what it would cost, she made an enquiry and told him. She said that she counselled the Applicant that non disclosure of use of marijuana was an offence and explained to him the reasons why marijuana may cause a problem in relation to aviation even if he had not experienced any untoward effects so far.
As she was required to do, Dr Bhatt asked the Applicant questions and filled in a medical questionnaire and examination form for the original issue of a medical certificate. In the course of asking the questions, the Applicant became aggressive and hostile, took possession of the questionnaire form, tore it and left with the torn document.
In a letter written by her to a Director of the Authority on the same day, Dr Bhatt set forth the happening much as is detailed above.
The Applicant stated in his evidence before the Tribunal that Dr Bhatt had "given a non medical opinion" and told him that he could not take the medical form. He said he became annoyed and tore the form up. He said that he went to Dr Bhatt "seeking information" and did not initially realise that it was going to be an examination.
Dr Bhatt was not cross-examined on her evidence. The Tribunal accepts the evidence of Dr Bhatt where it is in conflict with that of the Applicant. She had the benefit of the diary note and gave her evidence in a factual and persuasive manner.
On 11 September 1997, the day following his attendance on Dr Bhatt, the Applicant attended the surgery of a Dr John Lose at Rockdale. Dr Lose is also a designated aviation medical examiner. The Applicant sought an aviation medical certificate. Dr Lose examined the Applicant and asked him questions in accord with those set forth in the medical questionnaire form. In answer to question 7 on the form, namely as to whether the Applicant "had any traffic or criminal convictions relating to drugs or alcohol?", the Applicant answered "yes" and, according to Dr Lose, "told me words to the effect 'I had a conviction for possession of marijuana when I was 19 years old that had no penalty (sic) was recorded and that the matter was dismissed under section 556'".
Dr Lose noted as his comments on the health questionnaire and examination form "Q7. Possession of marijuana. 19 yrs old – no penalty. (Section 556 dismissal)".
In his evidence before the Tribunal Dr Lose confirmed that the comments he noted on the form were made to him by the Applicant and comprised the only relevant information given to him by the Applicant. The Applicant signed the questionnaire form containing the above information declaring that he had:
"… carefully considered the statements made in this Medical Questionnaire and that to the best of my knowledge they are complete and correct. I am aware that medical reports required for certification may be passed to medical specialists for an opinion."

On 24 September 1997 Dr T S Sham, on behalf of the Director of Aviation Medicine of the Authority, wrote to the Applicant, stating inter alia:
"Further to your application of Aeromedical Certification I require you to undergo
an examination of Urine Drug Screen with the sample passed in the presence of your Designated Aviation Medical Examiner (DAME) Dr J W G Lose within 14 days from today i.e. by 7 Oct 97 and
forward the report, certified by your DAME, to this office as soon as possible
in accordance with the provisions of Civil Air Regulation 6.06(3).
Aviation Medicine is unable to bear the responsibility for any fees incurred. Meanwhile assessment of your fitness for Aeromedical Certification is delayed." (T4)

The Applicant claimed that he had not received the letter of 24 September in sufficient time to comply with its terms and sought an extension of time for taking the urine drug screen test. On 16 October, Dr Sham wrote that reports sent "at any time" would be assessed, any delay to be taken into account when assessing the validity of the test.
A test was carried out on 30 October 1997, no adverse result being detected. On 17 November 1997 a decision was made to issue the Applicant with a conditional certification for 12 months with the requirement for quarterly urine drug screen testing. It was noted by the Authority that the Applicant had:
"Conviction of marijuana 7 yr ago. When asked for urine drug screen did not respond in time. Implausible excuse and asked for extension. Then took another month before having urine drug screen, result –ve." (T8, p17

On 18 November 1997, Dr Sham wrote to the Applicant, stating:
"Your case has been discussed by our panel of doctors. A Conditional Class 2 medical certificate valid for 12 months has been issued according to the provisions of Civil Air Regulation 6.08.
When your medical certificate becomes due for renewal, a
collated 3 monthly urine drug screen (including canniboids) with the sample passed in the presence of, and the result certified by a Designated Aviation Medical Examiner (DAME).
will be required in addition to the regular renewal medical examination. …
Your Medical Certificate has been endorsed 'RENEW By CASA'. This alerts the Designated Aviation Medical Examiner that he or she is not to revalidate your medical Certificate at the time you present for your routine medical certificate renewal examination. The Designated Aviation Medical Examiner is required to forward the report of the findings and other documents as required to the Office of Aviation Medicine. You will be issued with a valid Medical Certificate when the Office of Aviation Medicine has assessed you as meeting the required standard.
Please note your Aeromedical Certification is conditional to the above and any variation from the above will render your certification void." (T9)

Tests were carried out in December 1997, March, June and September 1998, all in the presence of Dr Lose. Nothing adverse was detected.
On 10 September 1998 the Applicant was examined by Dr Lose preparatory to the renewal of his medical certificate. A questionnaire was completed. The Applicant was noted as having said that since the Aviation medical examination he had not had any traffic or criminal convictions relating to drugs or alcohol. He signed the form including the declaration. On 18 September 1998 Dr Sham wrote to the Applicant informing him that a Class 2 Medical Certificate valid for 12 months had been issued with the same requirement for quarterly urine drug screening as in the previous year.
On 21 November 1998 the Applicant wrote to the Chairman of the Authority in a vein critical of the procedure to which he had been subjected, saying inter alia:
"I am writing to you regarding to the harsh treatment I have received by CASA with regard to my medical. …
In September 1997 I applied for a Class 2 medical to enable my (sic) to fly. This flying was to complement the theory training I was undergoing at TAFE in Ultimo.
During the medical examination I was asked by my DAME if I had ever been convicted of a drug related offence. I had been convicted for possession of marijuana and told him so.
I soon received a notice from Dr TS Sham at the Office of Aviation Medicine that I would be required to undergo 'an examination of Urine Drug Screen'. … While there was a short delay in me receiving this letter, I was assured by his office that I could still undertake the test and did so without further delay.
Approximately a month later I was informed by mail that I would be issued with a medical certificate on the condition that I undertook further urine tests every three months in the presence of my DAME. …
…
I have now completed by GFPT and recently renewed my medical. I received a letter almost identical to the one received a year earlier (except the Office of Medical Aviation have acquired a new printer), stating that I am required to have a 'collated 3 monthsly (sic) urine drug screen' conducted by my 'DMAE' sic). It was further stated that my medical would be only valid for one year and would be stamped 'Renew by CASA only'. …
…
I no longer wish to bear the burden of this foolish game of prejudice. The financial cost is great and trying to explain to an employer that you need time off work to have a drug test even though you don't use drugs is difficult.
…" (T16)

An acknowledgment of receipt of the letter issued on 30 November 1998, a lengthy response on 13 January 1999 detailing the concerns of the Authority, a need for it to comply with standards and recommended practices adopted and promulgated by the International Civil Aviation Organisation Chicago Convention, and stating that:
"Because of your previous history of conviction for possession of cannabis, a meeting of CASA's medical staff determined that an initial urinalysis screening test and periodic follow-ups would be appropriate in your case. As you will appreciate, the Authority also has reserve powers to require you to undergo a random urinalysis at any time. The periodicity of the checks required during the first year of your holding a Medical Certificate represented a compromise between complete certainty of your abstention from the use of cannabis (which might require fortnightly testing) and a mere annual check which, as you rightly point out, would prove little or nothing.
In all the circumstances, I believe that the requirement for you to undergo quarterly urinalysis screening for a further year in connection with retention of your Medical Certificate is reasonable. You should also note that additional tests, without prior notice, may also be required at any time during that period. Depending on this year's results, your case will be further reviewed by CASA's Aviation Medical Section at the time of your next medical examination and report.
…" (T19, p37)

Further testing took place in January, March and August 1999 in the presence of Dr Lose.
Dr Lose examined the Applicant for the renewal of the certificate on 7 October 1999. A questionnaire was completed at this time. In answer to question 7 in the questionnaire, that is:
"Since the last aviation medical examination, or in the last two years, has the applicant … had any traffic or criminal convictions relating to drugs or alcohol?" (T22, p42)

the Applicant replied "No". In answer to question 7A, that is:

"Since the last aviation medical examination, or in the last two years, has the Applicant … EVER, or is he/she NOW using any of the following substances:
opiates, cannabinoids, sedatives and hypnotics, cocaine, other psychostimulants, hallucinogens or volatile solvents?"

the Applicant answered "Yes". According to Dr Lose, the Applicant used words, or words to the effect of, "I had used cannabis previously to age 19 years of age (as previously declared) but none since that time", those words being then written by him as comments on the form. The Applicant signed the questionnaire form containing the markings, writing and notation of Dr Lose as above set forth. By signing the questionnaire form the Applicant declared that:

"… I have carefully considered the statements made in this Medical Questionnaire and that to the best of my knowledge they are complete and correct. …" (T22, p46)

Dr Lose, in his evidence before the Tribunal, said that he believed the Applicant had read through the form containing the answers, writing and notations before he signed it. He, Dr Lose, wrote down exactly what he was told and "because of the nature of what was happening I was very careful of what I wrote".

In the course of his cross-examination it was put to the Applicant that he had deliberately not told Dr Lose on 11 September 1997 of his conviction at Waverley Local Court on 5 February 1996, of possessing marijuana, nor that he had been using "marijuana recreationally for 9 years and had stopped one week ago" as narrated by him to Dr Bhatt the previous day. The Applicant at first said that he thought he had so informed Dr Lose, then that he was not sure if he had or not, and then he did not know if he had or not, and then that he "did not remember" if he had told Dr Lose or not.
With reference to the 1999 questionnaire and the notation made on it by Dr Lose, the Applicant denied that he said the words "none since that time", to Dr Lose and alleged that the medical practitioner wrote the words on the form of his own volition. "There has been a misunderstanding", the Applicant said "I did not make the statements".
It is noted by the Tribunal that a question the like of that appearing on the 1999 form as 7A was not included in the 1997 or 1998 forms. It may be thought that its presence in 1999 would thus be the more significant. As Dr Lose put it the question was there "for an applicant's benefit".
A written statement made by Dr Lose had been tendered to the Tribunal on behalf of the Authority and marked as an exhibit. When it became apparent during the course of the hearing that the Applicant was disputing the written evidence of Dr Lose, the Tribunal indicated that in this event the Applicant should be given the opportunity of putting his position to Dr Lose and this by way of cross-examination. Arrangements were then made for Dr Lose to be available by telephone link-up and oral evidence was then given by him and he was cross-examined.
Dr Lose had examined the Applicant for a certification on no less than three occasions and had been present when urine testing took place over the years 1997 to 1999. Dr Lose stated that, on account of the nature of what was happening, that is the need for a medical certification year by year, "I was careful in my notations". The Tribunal has noted the precision with which Dr Lose made the notations and his evidence that the Aviation forms are such that it is not difficult to go through them and provide relevant answers. There is no demonstrated reason why Dr Lose should have volunteered material not given to him by the Applicant. It is clear, on the evidence, that by 1999 the Applicant was annoyed with the attitude taken by the Authority and its continuing demands and this irritation may have caused him to be less than complete and honest with Dr Lose. The Tribunal accepts the evidence of Dr Lose as to the answers and information given to him by the Applicant.
The Applicant did not tell Dr Lose the whole truth in September 1997, he could hardly have forgotten a drug related conviction only 18 months before. He also failed to recount to Dr Lose what he had told Dr Bhatt the day before. His statements in 1998 and 1999, as herein before detailed, were not true or the whole truth and, as to those made in the latter year, were designed to mislead.
DECISION:
On 11 November 1999 Dr Sham, as delegate of the Authority, wrote to the Applicant informing him of the decision then reached by the Authority. The decision was to the like effect as that of November 1997 and September 1998, requiring the Applicant to submit to quarterly urine drug screening, a valid medical certificate to issue only when the Office of Aviation Medicine assessed the Applicant as meeting the required standard. It is against this latter decision that the Applicant has appealed.
Dr Peter Wilkins, the Director of Aviation Medicine in the Authority, states that:
"4.The effects of marijuana on a person's motor and cognitive skills are numerous and of particular significance for tasks requiring maintained concentration and situational awareness. They also involve a slowing of reaction times and a loss of fine motor coordination. These effects are partly dose dependent and continue for variable periods after the drug's ingestion, influenced by the quantity of cannabinoids absorbed, by the frequency of use of the drug and by individual factors within each user. These effects are unpredictable from use to use, even in habituated users.
5.Given the effects of marijuana on motor and cognitive skills, it is dangerous for a person to operate an aircraft while his/her faculties are affected by marijuana.
6.The most effective method of detecting whether a person has used marijuana marijuana in the recent past is by testing his/her urine for metabolites of cannabis." (Exhibit 4)

The Authority maintains that the factual situation in this matter is such as to warrant a finding by the Tribunal that the Applicant knowingly or recklessly made a false or misleading statement in relation to his application for a medical certificate and consequent upon the provisions of Regulation 6.06(2) the Authority must not issue a medical certificate to the Applicant.
The Applicant is employed currently as an administrative officer in the Native Title unit with the New South Wales Registry of the Federal Court of Australia. He has worked there for the last five months. He is said by a fellow employee to be a diligent and reliable employee. Mr Arthur Morgan, flying instructor of the Applicant for a period of over two years, stated that the Applicant had informed him of restrictions placed on his Aeromedical Certificate by the office of Aviation Medicine and of his having previously used marijuana. The Applicant had also informed him that he had contested the restrictions. He found the Applicant to be forthright "in this issue; at no time did I feel that Dan [the Applicant] had attempted to conceal his history of drug usage or the criminal proceedings relating to drug possession which he had been involved in". He endorsed the Applicant as a student.
Be it that the above is consistent with the impression gained of the Applicant by a fellow employee and his instructor, the issues before the Tribunal relate to the medical certification as issued revelations or lack thereof as to drug usage made by the Applicant and the express provision contained in the Regulations.
On the basis of the evidence tendered before the Tribunal, the issuing of a conditional medical certificate is eminently reasonable and proper. The criminal record of the Applicant, together with his admission to Dr Bhatt of the use of drugs to within one week of seeing her in September 1997, provides ample justification to the Tribunal for concern as to the ongoing medical condition of the Applicant. The evidence of Dr Wilkins provides the basis upon which material is accepted by the Tribunal for necessary concern as to the interests of the safety of air navigation.
The Applicant knew of his use of prohibited drugs and knew of the findings made against him in the local court. He admitted to Dr Bhatt using drugs until one week before she saw him in September 1997. He made false and incomplete or misleading statements to Dr Lose in September 1997, September 1998 and October 1999 in relation to his application for a medical certificate.
This application for review relates to the November 1999 conditional medical certification. The Tribunal is satisfied that:
1.as to the application for that medical certificate, the Applicant knowingly or recklessly made a false and misleading statement. It is for the Authority to implement Civil Aviation Regulation 6.06(2);
2.otherwise the decision under review can only be affirmed.

Accordingly the decision under review is affirmed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of:
The Hon Mr R N J Purvis, QC, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing  3 July 2000
Date of Decision  25 August 2000
Representative for the Applicant        Applicant self-represented
Representative for the Respondent   Mr W Arthur,
  Civil Aviation Safety Authority

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Andrews and Civil Aviation Safety Authority [2000] AATA 748

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