Anthony Taggart and Civil Aviation Safety Authority
[2012] AATA 690
•8 October 2012
[2012] AATA 690
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2854
Re
Anthony Taggart
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Miss E A Shanahan, MemberDate 8 October 2012 Place Melbourne The decision under review is affirmed.
...........[sgd].............................................................
Deputy President J W Constance
CATCHWORDS
CIVIL AVIATION – medical standard for the issue of class 1 and 2 medical certificates – transient global amnesia – safety-relevant condition - degree of functional incapacity or a risk of incapacitation - with safety pilot condition – safety of air navigation - decision under review is affirmed
LEGISLATION
Civil Aviation Act 1988 (Cth) ss 9A, 20AB(1)
Civil Aviation Regulations 1988 (Cth) r 5.04
Civil Aviation Safety Regulations 1998 (Cth) rr 11.056, 67.015, 67.150, 67.155, 67.180
SECONDARY MATERIALS
Hall, J.C, How to Dissect Surgical Journals: Xv-Review Articles; ANZ J.Surg.81 (2011) 831-834
International Civil Aviation Organization, Manual of Civil Aviation Medicine, 3rd ed, 2012
REASONS FOR DECISION
Deputy President J W Constance
Miss E A Shanahan, MemberA. INTRODUCTION
Mr Taggart is seeking a review of the decision of the Authority refusing to issue him a class 1 medical certificate and imposing a restrictive condition on a class 2 certificate. As the holder of a pilot’s licence, Mr Taggart requires a medical certificate (with or without conditions) issued by the Authority to enable him to operate an aircraft.
For the reasons which follow the decision under review will be affirmed.
B. EVIDENCE AND FINDINGS OF FACT
Unless stated otherwise the following findings of fact are based on the evidence of Mr Taggart.
Mr Taggart is 61 years old. He holds a commercial pilot’s licence and has done so for at least 20 years. Prior to February 2012 Mr Taggart held successive class 1 medical certificates issued by the Authority for 20 years. His total aeronautical experience is approximately 2600 hours.
Mr Taggart practises as a Chartered Accountant. In addition he earns income from conducting survey flights. He also uses his licence as an unpaid volunteer, air-lifting patients for medical treatment as part of the Angel Flight scheme.
On 16 October 2011 Mr Taggart tripped and struck his forehead on the corner of a wall. The blow broke the skin and caused an injury which was painful to touch. However Mr Taggart did not lose consciousness and did not suffer a headache as a consequence of the incident. He did not seek medical treatment and was able to continue his planned activities on the day.
On 18 October 2011 Mr Taggart suffered an episode of some confusion which he described as follows:
We – we rise at 5:30 every morning to walk our dogs. We did that. Everything proceeded normally. I was to attend a funeral on that day at about 10 o’clock, so I took the opportunity to do some work at home instead of going into my office. And so at about half past 8 or so I had had breakfast and I had done some exercises, as I do every morning. And – and then about half past 8 I sat down in my office and started to work on a client’s file. And my wife went to – my wife went down to Coles to get some groceries and I think it was about half past 9 or quarter to 10, when she returned and I recall that I was – I had been doing this accounting work and I was getting a little bit confused as to where I was and what I was doing. From there, my wife was concerned so she rang the doctor, Bill Walker, and we got in the car and drove across to Bill. I saw Bill and he called in another – another doctor from the clinic who I had not seen before and haven’t seen since. And they recommended that we go to Monash emergency department. So we got back in the car and I recall driving to – I wasn’t driving myself. My wife was driving but I recall the trip to Monash. We went into the emergency room. We checked in and then I sat with my wife in the emergency room watching all the people coming and going. Trying to figure out what they were doing and why they were there. And I think it was at about 3 o’clock in the afternoon that I was then taken from the waiting room into a ward. And then at about 5 o’clock – his name is Dr Wang I think – came and started doing tests and talking to me and by that time I was ready to go home.[1]
[1] Transcript 23.8.12 pp.50-51.
The clinical notes of the Emergency Department of the Monash Medical Centre record, in part:
This morning wife left him at home at 0700 hours, came back at 1000am found patient to be confused, pacing around asking same questions, not oriented to place/time. … Patient has no recollection of events this morning. … Wife said cognition returning to normal around 3pm this afternoon.[2]
[2] Exhibit A4 p.173.
The evidence of the duration of this episode is unclear. Mr Taggart said that he felt as though he had recovered by midday. The notes of the Monash Medical Centre suggest that the condition continued to affect Mr Taggart until about 3pm. We are satisfied that the episode lasted for at least three hours.
At the Medical Centre Mr Taggart was examined by Dr Wang. Prior to discharge, Mr Taggart was told that it appeared that he had suffered an episode of transient global amnesia and that “it was unlikely to happen again.” [3] He was advised to have an EEG (electro-enchelogram), to see a neurologist and that he should not pilot an aircraft until the neurological review had been carried out.
[3] Exhibit A1 p4.
In October or November 2011 Mr Taggart was examined by Dr Bower, Neurologist. Dr Bower advised Mr Taggart and his Designated Aviation Medical Examiner, Dr Tunbridge, that in his opinion the diagnosis of transient global amnesia was “fairly secure.”
The Authority was not advised of the incident suffered by Mr Taggart until 30 January 2012.
On 18 June 2012 the Authority refused to issue Mr Taggart with a class 1 medical certificate and imposed a “with safety pilot” condition on his class 2 medical certificate.[4]
[4] Notice attached to Mr Taggart’s application for review to the Tribunal.
Evidence of Dr Bower, Neurologist
In October or November 2011 Mr Taggart consulted Dr Bower upon referral from his general practitioner, Dr Walker. On 22 November 2011 Dr Bower reported[5] that Mr Taggart’s neurological examination was normal. In his opinion the diagnosis of transient global amnesia was “fairly secure”, but that a brain MRI was advisable to exclude co-existing cerebrovascular disease. Further he expressed the opinion that”[the] duration of symptoms, age of onset, triggering upper body physical exercise and past history of migraine are all characteristic.” Dr Bower advised that Mr Taggart not fly an aeroplane “for the time being.”
[5] Exhibit A4 pp.177-178.
Evidence of Dr Cher, Neurologist
Mr Taggart also consulted Dr Cher shortly after the episode. Dr Cher provided reports dated 21 December 2011, 16 March 2012 and 1 May 2012.[6]
[6] Exhibit A4 p.179, A3 & A2 respectively.
On 16 March 2012 Dr Cher reported:
Transient Global Amnesia is quite commonly seen in neurological practice and the likelihood of recurrence is very small in my experience.
I do not think that there is any evidence that there is a higher risk of recurrence in the first 12 months. In addition, the likelihood of epilepsy being diagnosed in the first 12 months in our situation where there is good clinical history and normal EEG and MRI, I think is very low. Earlier studies were probably associated with inappropriate inclusion of patients who did not fit the criteria that have been developed since then, and would often not be typical of TGA per se.
Given the fact that he has had an essentially normal MRI and EEG as well as the clinical story, I think we would be happy that this is not epilepsy masquerading as TGA. A review in Brain (2006) by Quinette et al*, which I will include with this, does an extensive review of the literature and as well as reviewing 142 personal case series. Again, the risk of recurrence is very variable across the different studies over different time periods. They quote in the paper that in most patients, TGA occurs only once. Although recurrences have been reported, several authors have shown that compared with TIA’s, the recurrence rate is very low. However, the accuracy of the data is difficult because the studies are all retrospective in duration of follow up and prospective studies varies considerably. Certainly in my experience, this does not seem to be something that occurs frequently and in the two or three patients I have had who have had recurrent episodes, these have usually been spread out over years, but are certainly the exception rather than the rule.
In regard to the first point that TGA’s may be a problem with safe flying, as mentioned by Simon Bower, generally patients with this condition during an episode can control the plane, but may have difficulties with remembering where they are going.[7]
[7] Exhibit A3.
In a further report dated 1 May 2012[8] Dr Cher stated:
It has now been over six months since the event and the history provided is classic for Transient Global Amnesia. Given the fact that he has not had any further events over this time, I think that the likelihood of recurrence and even more importantly this being recurrent epilepsy is very low. It would not stop him from driving for example.
In regard to the risk of epilepsy, I think we can be happy that this is not due to an [sic] seizure disorder both on clinical, radiological and electrophysiological grounds. I think certainly that the concerns about epilepsy need to be discounted completely. Given that, if there were still concerns about recurrence of Transient Global Amnesia, it is important to be aware that his ability to perform usual tasks would not be impaired. Thus, his ability to maintain the plane would likely be fine. Often patients with Transient Global Amnesia are able to drive and be in control of the car and pull it over if needed. The issue would be whether it was felt given the low likelihood of recurrence, that he would need to have a co-pilot.
[8] Exhibit A2.
When he gave evidence Dr Cher expressed the opinion that a person experiencing transient global amnesia is able to continue to perform familiar tasks. He said that based on the literature and his personal experience over 20 years, he did not consider that there was any evidence that Mr Taggart had experienced transient epileptic amnesia rather than an episode of transient global amnesia and therefore the risk of recurrent complex partial seizures is negligible.
Dr Cher agreed that if a pilot suffered an episode of transient global amnesia while flying an aircraft he would be assisted by the presence of a co-pilot.
Evidence of Dr Walker, General Practitioner
Dr Walker gave evidence that Mr Taggart has never complained to him of suffering from migraine headaches.
Evidence of Dr Cameron, Consultant Neurologist
In addition to his qualifications as a neurologist, Dr Cameron has a degree in aviation medicine from Otago University and held a commercial flying licence with an instrument rating from the mid-1970’s until the late 1990’s. He is a registered designated examiner of aircrew.
At the request of the Authority Dr Cameron considered the records in relation to Mr Taggart and provided a report dated 8 August 2012. He also gave evidence. Dr Cameron has not seen Mr Taggart his opinion being based solely on the documents provided to him by the Authority.
Dr Cameron agrees with the diagnosis of transient global amnesia. He gave evidence that he sees an average of 6-8 patients with transient global amnesia annually and has a number of patients with recurrence of the condition.
Dr Cameron reported in part:
He [Mr Taggart] has a number of risk factors which can be associated with an increased incidence of transient global amnesia, specifically;
·he was noted to be hypertensive on his admission to Monash Medical Centre ED;
·he was noted to be mildly obese with a BMI of thirty;
·he has a past history of obstructive sleep apnoea and classical migraine, the latter in his late teens and early twenties; and
·his father had a myocardial infarct in his sixties and it was noted that Mr Taggart has a right bundle branch block.
It is also noted on the morning prior to the onset of his amnesic disturbance he was exercising his upper limbs vigorously and this, through mechanisms still undefined, can trigger onset of transient global amnesia.
I don’t believe there is any doubt as to the diagnosis of TGA in this presentation.[9]
[9] Exhibit R2 pp.3-4.
As to the risks involved if a pilot suffers an episode of transient global amnesia whilst flying, Dr Cameron reported as follows:
An episode of transient global amnesia can cause enormous safety risks to the safe navigation and control of an aircraft, even though the pilot should be able to maintain relative control of an aircraft during an event in that his innate, trained flying skills would still prevail. However;
·he would not recall where he was going;
·he would not recall any radio transmissions given to him such as in a controlled airspace;
·he would not be able to perform aircraft separation with other pilots;
·he would not be able to manage fuel for the aircraft’s flight;
·he would not be able to safely operate his aircraft; and
·he would also provide a hazard to other aircraft operating in his vicinity.[10]
[10] Exhibit R2 p.5.
Reports of Dr Tunbridge, General Practitioner
Dr Tunbridge is Mr Taggart’s Designated Aviation Medical Examiner. He examined Mr Taggart in November 2011 and arranged for investigation of his medical condition.
On 19 January 2012 Dr Tunbridge reported that, with full investigation, no underlying cerebro-vascular problem had been found and that it would be reasonable at that time to review any restrictions on his flying privileges.[11]
[11] Exhibit A4 p.180.
On 8 May 2012 he reported, in part:
This man has been seen 21 times for aircrew medical examinations by me since August 1991. All medical events over this time have been investigated, resolved and known to CASA. He is an intelligent man running an accounting business with considerable responsibilities. I have read the reports of the medical people he has seen together with the literature on the subject of TGA. The only mention of a closed head injury is made by the emergency department at Monash. This brings the diagnoses of TGA in some doubt according to the evidence in the literature. The head injury occurred 36 hours prior to the amnesia episode.[12]
[12] Exhibit A4 p.230.
Evidence of Dr Navathe, Principal Medical Officer, Civil Aviation Safety Authority
Dr Navathe has held his present position since December 2008. Prior to his commencing work with the Authority in February 2008, Dr Navathe was a Senior Medical Officer at the Civil Aviation Authority of New Zealand for seven years, a Medical officer with the Indian Air Force and a specialist in Aerospace Medicine for 22 years. He is an occupational physician and has extensive experience and expertise in aviation medicine. We accept his definition of aviation medicine as being “the branch of medicine concerned with the human capacity to safely and effectively perform complex tasks in the potentially hostile aviation working environment.” [13]
[13] Exhibit R1 para.10.
Dr Navathe provided a statement dated 16 August 2012[14] and gave evidence.
[14] Exhibit R1.
In his statement Dr Navathe said, in part:
Studies of the recurrence rate for TGA episodes in the first year after the initial TGA episode identify a range from 2% to 10%. Thereafter, the annual recurrence rates for cases of TGA in different studies range from 1.1% to 5.8%. The most robust data is that set out in the Hinge study, which calculated an annual recurrence rate of 4.7%. The list of studies is as shown in the table below (Jagathesan 2012)[15]
[15] Exhibit R1 para.72.
TABLE II. LITERATURE REVIEW
Author Number Mean Age (years) Mean Follow-Up (months) Recurrence in 1st year (%) Annual Recurrence (%) Migraine (%) Epilepsy in 1st Year (%) Hinge (10) 74 59 67 10 4.7 20 Miller (17) 277 61 80 6 2.2 14 Colombo (6) 55 62 30 1.9 4 Hodges (11) 114 62 35 3.0 30 7 Gandalfo (9) 102 63 82 6 12 Melo (16) 51 60 17 2 1.1 25 Zorzon (23) 64 62 46 2.5 23 Chen (5) 28 62 42 7 3.1 21 Pantoni (18) 51 63 84 6 1.1 12 Quinette (19) 142 64 120 5.8 24 Total/Means 958 62 55 6.2 2.8 19 CAA data 29 59 41 3.4 (TEA) 21 3.4
Dr Navathe expressed the following opinions:[16]
·“[W]hile the consensus is that Mr Taggart has TGA, it is well known that these cases can be misdiagnosed, either in cases of transient ischaemic attacks, post concussional amnesia or of epilepsy”;
·in Mr Taggart’s case investigations suggest that transient ischaemic attacks and post-concussional amnesia are unlikely; epilepsy could still present itself;
·the diagnosis of transient global amnesia can only be made with strong certainty one year after the episode and in the absence of any other sinister episodes during that period;
·the risk of a misdiagnosis of an initial event as transient global amnesia, when in fact it was epilepsy, is minimal after a period of 12 months.
[16] Exhibit R1, para 77.
Dr Navathe referred to a study by Hodges and Warlow of 114 patients, of which seven per cent were found to be suffering from epilepsy, this having become evident within one year of an initial event which fulfilled the strict criteria for transient global amnesia.[17]
[17] Exhibit R1, para 77.
C. ACT AND REGULATIONS
Civil Aviation Act 1988 (Cth)
Subsection 20AB(1) of the Civil Aviation Act 1988 (Cth) provides that a person must not perform any duty that is essential to the operation of an Australian aircraft during flight times if the person does not hold a current civil aviation authorisation that authorises the performance of that duty. Civil aviation authorisation is defined to include a certificate issued under the Civil Aviation Regulations 1988.[18]
[18] Civil Aviation Act 1988 (Cth) s.3(1).
Civil Aviation Regulations 1988
Regulation 5.04(1) of the Civil Aviation Regulations 1988 provides:
(1) Without the permission of CASA, the holder of a flight crew licence must not perform a duty authorised by the licence if the person does not hold a current medical certificate that is appropriate to the licence.
Regulation 5.04(3) relevantly provides:
(3) For the purposes of this regulation, a medical certificate is appropriate to a flight crew licence if:
(a) in the case of … a commercial pilot licence (other than a commercial pilot (balloon) licence)… the medical certificate is a class 1 medical certificate; and
(b) in the case of … a private pilot licence … the medical certificate is a class 1 or class 2 medical certificate.
Civil Aviation Safety Regulations 1998
The medical standards which must be met to obtain each class of medical certificate are set out in Part 67 of the Regulations.
Subject to qualifications which are not relevant to this application, regulation 67.180 provides that the Authority must issue a medical certificate to an applicant if the applicant meets the requirements of subregulation 2. For the purposes of this application the relevant requirements are:
(2)(e) either:
(i) the applicant meets the relevant medical standard; or
(ii) if the applicant does not meet that medical standard — the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation;
Regulation 11.056 permits the issue of a medical certificate to a person “subject to any condition that is necessary in the interests of the safety of air navigation.”
Regulation 67.150 sets out the criteria required to meet medical standard 1. The relevant criteria are:
1.1 Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
(a) an abnormality;
(b) a disability or disease (active or latent);
(c) an injury;
(d) a sequela of an accident or a surgical operation
Nervous system
1.7 Has no established medical history or clinical diagnosis of:
(a) a safety-relevant disease of the nervous system; or
(b) epilepsy; or
(c) a disturbance of consciousness for which there is no satisfactory medical explanation and which may recur
Regulation 67.155 sets out the criteria required to meet medical standard 2. The relevant criteria are:
2.1 Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
(a) an abnormality;
(b) a disability or disease (active or latent);
(c) an injury;
(d) a sequela of an accident or a surgical operation
Nervous system
2.7 Has no established medical history or clinical diagnosis of:
(a) a safety-relevant disease of the nervous system; or
(b) epilepsy; or
(c) a disturbance of consciousness for which there is no satisfactory medical explanation and which may recur
Regulation 67.015 provides the meaning of safety-relevant:
For the purposes of this Part, a medically significant condition is safety-relevant if it reduces, or is likely to reduce, the ability of someone who has it to exercise a privilege conferred or to be conferred, or perform a duty imposed or to be imposed, by a licence that he or she holds or has applied for.
D. ISSUES FOR DETERMINATION
The following issues arise for determination.
(1) Does Mr Taggart meet the relevant medical standard for the issue of a class 1 medical certificate?
(2) If not, is the extent to which he does not meet the standard likely to endanger the safety of air navigation?
(3) Does Mr Taggart meet the relevant medical standard for the issue of a class 2 medical certificate?
(4) If not, is the extent to which he does not meet the standard likely to endanger the safety of air navigation?
E. CONSIDERATION OF THE ISSUES
Issue 1: Does Mr Taggart meet the relevant medical standard for the issue of a class 1 medical certificate?
On the basis of the evidence of Mr Taggart, the Monash Medical Centre records, Dr Bower, Dr Cher, Dr Cameron and Dr Navathe we are satisfied on the balance of probabilities that on 18 October 2011 Mr Taggart suffered an episode of transient global amnesia. We accept the following evidence of Dr Navathe as to the nature of the condition of transient global amnesia:
Transient global amnesia (TGA) manifests with a paroxysmal, transient loss of memory function. Immediate recall ability is preserved, as is remote memory, however, patients experience a striking loss of memory for recent events and an impaired ability to retain new information. Many patients are anxious or agitated and may repeatedly ask questions concerning transpiring events. Upon mental status examination, language function is preserved, which indicates a preservation of semantic and syntax memory. Attention is spared, visual-spatial skills are intact, and social skills are retained. Symptoms typically last less than 24 hours. As the syndrome resolves, the amnesia improves, but the patient may be left with a distinct lapse of recollection of events during the attack. The typical age of occurrence is older than 50 years.[19]
[19] Exhibit R1 para 71.
We are satisfied that the condition of transient global amnesia is medically significant and safety-relevant as it is likely to reduce the ability of Mr Taggart to exercise the privileges, and to perform the duties imposed on him by the licence he holds. We accept the evidence of Dr Cameron that if Mr Taggart suffered the condition whilst piloting an aircraft he would not know where he had come from or where he was going. He would also have problems assessing fuel reserves and keeping separation from other aircraft.
Further we are satisfied that within the 12 months immediately after the initial incident there is a risk that Mr Taggart may suffer a recurrence of transient global amnesia or may, if this diagnosis was incorrect, display evidence of epilepsy. On this basis we are satisfied that he does not meet criterion 1.1 in Table 67.150. We have reached this conclusion on the basis that the suffering of an episode of transient global amnesia within the previous 12 months and the accompanying risks of recurrence or showing overt epilepsy is an abnormality and/or a latent disability that produces a risk of incapacitation.
We will set out our reasons for concluding that there is a risk of recurrence of transient global amnesia or the manifestation of epilepsy later in these reasons.
Issue 2: Is the extent to which Mr Taggart does not meet the medical standard for the issue of a class 1 medical certificate likely to endanger the safety of air navigation?
As previously indicated, we are satisfied on the balance of probabilities that there is a risk that, during the 12 months following Mr Taggart’s suffering transient global amnesia, he will suffer a recurrence of the condition and/or develop epilepsy.
We have reached this conclusion on the basis of the evidence of Dr Navathe and Dr Cameron.
Dr Navathe provided a review of the various studies of persons who have experienced an episode/episodes of transient global amnesia. These studies show a range of the recurrence rate of the condition from 2% to 10%, with 5 of the 6 relevant studies showing a rate of 6% or higher. Although some of these studies were conducted over 20 years ago, we accept the opinion of Dr Navathe that they still provide relevant data and that they provide information which remains relevant in that the early reports established the clinical criteria for the diagnosis of transient global amnesia.
Unfortunately the medical literature made available to the Tribunal consists of retrospective studies of transient global amnesia patient clinical records with prospective follow-up data in some, but not all, instances and the meta-analysis of earlier published studies. The scientific value of these studies is limited as they are considered to be unreliable as judged by existing value scales e.g. Jadad, Newcastle-Ottawa and WHO scales. Meta-analyses are said to be ‘least useful when they contain studies with widely divergent results’ Ref: Hall, J.C, How to dissect surgical journals: XV- Review articles; ANZ J.Surg.81 (2011) 831-834. In the latest publication, that of Jagathesan 2012, there were no recurrences after 12 months. This may reflect the advent of superior investigative tools such as MRI and PET scanning not available at large before mid-nineties.
We accept also the evidence of Dr Navathe that it is only after the passage of 12 months that, in the absence of any sinister episodes, that the diagnosis of transient global amnesia can be confirmed and the risk of transient epileptic amnesia excluded. We have taken into account the research of Hodges and Warlow to which he refers.[20] Their research recorded that of a group of 114 patients who fulfilled the strict criteria for a diagnosis of transient global amnesia after an initial event, seven per cent developed epilepsy, all within the first year and all without a previous history of epilepsy.
[20] Exhibit R1 para.77.
The opinion of Dr Navathe is supported by the opinion of Dr Cameron who referred to various studies, including those relied upon by Dr Navathe. In the opinion of Dr Cameron, the figures from the studies “suggest that the risk of recurrence of a transient global amnesic event is greater than the 1% level accepted by worldwide aviation licensing organizations.”[21]
[21] Exhibit R2 p.6.
We have also taken into account the evidence of Dr Navathe that a decision not to issue a class 1 medical certificate to Mr Taggart at present “is consistent with other regulatory bodies such as UK CAA, European Aviation Safety Agency, the Federal Aviation Administration [USA] and Transport Canada.” [22]
[22] Exhibit R1 para.90.
We prefer the evidence of Dr Navathe and Dr Cameron to that of Dr Cher and Dr Tunbridge. Dr Navathe has extensive experience in aviation medicine and both the and Dr Cameron referred us to the research which supported the views they expressed. The medical practitioners who expressed contrary opinions did not present such detailed justifications of their respective opinions.
We are satisfied that the extent to which Mr Taggart does not meet the medical standard is likely to endanger the safety of air navigation. We have reached this conclusion as we are satisfied that in the 12 months following the events of 18 October 2011, there is a risk of a recurrence of transient global amnesia or the manifestation of epileptic amnesia (if the diagnosis of transient global amnesia is incorrect) causing Mr Taggart to suffer such functional incapacity as to seriously compromise his ability to pilot an aeroplane. We conclude that this risk is unacceptable. We note the provisions of section 9A of the Act that the decision-maker (in this case the Tribunal) is required to regard the safety of air navigation as the most important consideration in the exercise of its powers and the performance of its functions.
We have given consideration to whether a condition or conditions could be imposed in accordance with regulation 11.056 which would reduce the likelihood of endangering the safety of air navigation to an acceptable level. Mr Taggart has argued that the imposition of a condition that he fly an aircraft only when accompanied by a safety-pilot is appropriate. He points out that the Authority has issued him a class 2 medical certificate subject to this condition.
We are not satisfied that the issue of a medical certificate (whether or not it is issued subject to a condition) is appropriate in the period of 12 months following Mr Taggart’s experiencing the episode of transient global amnesia. We have earlier set out the risks which we have found are associated with a pilot experiencing such an episode or of suffering from epilepsy whilst in control of an aircraft. Until the expiration of the 12 month period, at which time the diagnosis of transient global amnesia can be confirmed, and the risk of its recurrence or of the condition being epilepsy, is reduced, there is a likelihood that the safety of air navigation would be endangered by Mr Taggart operating an aircraft.
We have taken into account that the Manual of Civil Aviation Medicine (Third Edition – 2012) provides in part, in relation to transient global amnesia:
Aeromedical implications
10.2.20 In many individuals with Transient Global Amnesia there is a readily identifiable proximate precipitant, such as emotional stress, cold water immersion, or other factors.
10.2.21 Absent the precipitating circumstances, medical certification is appropriate following a symptom-free observation period of one year or more. Restriction to multi-crew operations and non-safety-sensitive air traffic control duties can provide an additional measure of risk mitigation.[23] [Emphasis added].
Issue 3: Does Mr Taggart meet the relevant medical standard for the issue of a class 2 medical certificate?
[23] The Manual is approved by the Secretary General, International Civil Aviation Organization, and published under his authority. The ICAO was established by the 1944 Convention on Civil Aviation to which Australia is a signatory.
The relevant criteria for the issue of a class 2 medical certificate are identical to those relevant for the issue of a class 1 medical certificate. For the reasons stated in relation to the decision regarding the class 1 certificate, we are satisfied that Mr Taggart does not meet the relevant medical standard for the issue of a class 2 certificate.
Issue 4: Is the extent to which Mr Taggart does not meet the standard likely to endanger the safety of air navigation?
For the same reasons as we have stated in relation to the application for a class medical 1 certificate, we are satisfied that the extent to which Mr Taggart does not meet the standard for a class 2 certificate is likely to endanger the safety of air navigation.
We note that at the time of the hearing in August 2012 Mr Taggart has been entitled to fly an aeroplane in accordance with a class 2 medical certificate issued by the Authority. This certificate was issued subject to the condition that whenever he is piloting an aeroplane Mr Taggart is accompanied by a safety-pilot.
Dr Navathe gave evidence that one of the reasons for deciding whether conditions can ameliorate the risk to the safety of air navigation in respect of class 1 and class 2 medical certificates is as follows:
The lower level of assumed risk that can be tolerated in view of the potential consequences to fare paying passengers. This includes that most operations would be in controlled airspace, subject to air traffic control direction, and busy air lanes/airports. This is reflected in the lower level numerical risk numbers as well as lower tolerance for uncertainty acceptable for charter or regular public transport operations.[24]
Whilst we accept that this may have been one of the reasons for deciding to issue the class 2 medical certificate we do not agree that it is a valid reason and it is not a reason which this Tribunal is prepared to adopt. On the facts before us, we can see no justification for, or logic in, the proposition that the degree of risk to the safety of air navigation can vary according to whether or not the pilot is flying for reward.
[24] Exhibit R1 para.89.
The evidence of Mr Taggart confirmed the concerns which we have. Mr Taggart said that his failure to obtain a class 1 certificate has prevented his operating his aeroplane for the purposes of earning income from aerial surveying, an activity which he has previously pursued. The lack of a class 1 certificate would prevent his taking on board fare paying passengers should he wish to do so. However, provided he has been accompanied by a safety pilot, Mr Taggart has been able to operate his aeroplane to convey passengers under the Angel Flight scheme. Under this scheme Mr Taggart has conveyed ill patients and accompanying persons from country Victoria to airports in and around Melbourne. He has also transported patients from country areas to Sydney. In our view the risk to the safety of air navigation, whether it be to the passengers in his aircraft, to those in other aircraft in the vicinity or to people on the ground, is no less because the passengers are not required to pay a fare to travel in the aircraft.
For the same reasons as stated in relation to the application for the issue of a class 1 medical certificate, we are not satisfied that the imposition of “with safety pilot” restriction on a class 2 medical certificate reduced the risk to the safety of air navigation to an acceptable level. However as it is now only a few days before the expiration of 12 months from the time Mr Taggart suffered the episode of transient global amnesia and there is no indication of its recurrence or of the existence of epilepsy, we will affirm the decision under review.
F. COMMENT
Notwithstanding our decision that the decision under review will be affirmed, it is open to the Authority to decide to issue either a class 1 or a class 2 certificate should Mr Taggart again apply.
Any conditions which may be appropriate to impose will be determined at the time the Authority decides upon any further application by Mr Taggart and are not matters for this Tribunal. Similarly, the tests which Mr Taggart may be required to undertake are matters for the Authority’s decision at the time. However, in view of the evidence of Mr Taggart it is appropriate that we comment upon the conditions which should be considered when the Authority decides to issue a medical certificate subject to a condition that the holder of the certificate be accompanied by a safety-pilot.
It was not clear from Mr Taggart’s evidence that when flying with a safety pilot he fully informed that pilot of the nature of the condition which caused him to require his presence. Mr Taggart also gave evidence also that he had not informed a representative of Angel Flight of the condition imposed on his medical certificate or of the nature of the incident of transient global amnesia which gave rise to the condition being imposed. In our view this is a most unsatisfactory situation, particularly as Mr Taggart continues to reject outright the view that there is a risk that he may suffer a recurrence of transient global amnesia.[25]
[25] Transcript 23.8.12 p-76.
In future, in similar situations, the Authority should consider imposing conditions such as the following:
·requiring the holder of a conditional medical certificate requiring a safety-pilot to inform the safety pilot of the imposition of the condition and the nature and possible effects of the medical condition which gave rise to the need for a safety-pilot;
·requiring the holder to inform any entity on whose behalf passengers are to be transported of the existence of the condition and the reasons for its imposition;
·in appropriate circumstances, requiring the holder of the certificate to inform passengers of the existence of the condition.
After discussion of these issues during the hearing of this application the Tribunal was informed by Mr Taggart’s solicitors that since the hearing Mr Taggart had advised Angel Flight of all the facts and circumstances concerning the restrictions imposed on his current class 2 medical certificate. The solicitors also advised the Tribunal that Angel Flight did not require Mr Taggart to tell the passengers of his relevant medical history.
The solicitors have provided to the Tribunal a copy of a letter dated 4 September 2012 from the Founder and Chief Executive Officer of Angel Flight to Mr Taggart. In part the letter reads:
Angel Flight is and always has been, a private, not for profit company (Deductible Gift Recipient Charity). It is not an aviation operation in any way. Angel Flight acts simply as an “introduction agency” to coordinate rural Australians with financial, distance and medical needs with volunteers, both car drivers and aircraft pilots, who agree to provide assistance.
The statements in this letter differ from Mr Taggart’s understanding of the respective roles of Angel Flight and himself in the transport of passengers by aeroplane. Mr Taggart told us that he was engaged by Angel Flight which liaises with the medical practitioners involved, assesses the patients and makes all the bookings; he simply notifies his availability to undertake a task when he is notified that a need has arisen.
We recognize and applaud the work of Angel Flight and its volunteers, including Mr Taggart, in assisting those who live away from the services available in our capital cities. It is not our intention to restrict the invaluable service being provided. However, in our view it is important that the Authority be made aware of the issues raised by the evidence given in this application.
G. CONCLUSION
The decision of the Civil Aviation Safety Authority made 18 June 2012 to affirm a determination made 11 April 2012 to refuse to issue Mr Taggart with a class 1 medical certificate and to issue him with a class 2 medical certificate with a “with safety pilot” restriction will be affirmed.
I certify that the preceding 74 (seventy four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Miss E A Shanahan.
........[sgd]................................................................
Associate
Dated 8 October 2012
Dates of hearing 23 and 24 August 2012 Counsel for the Applicant Mr Pierre Baume Solicitor for the Applicant Mr John Maitland, Maitland Lawyers Advocate for the Respondent Mr Anthony Carter, CASA Legal Services Group
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