Barnes and Civil Aviation Safety Authority
[2016] AATA 401
•17 June 2016
Barnes and Civil Aviation Safety Authority [2016] AATA 401 (17 June 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3391
Re
David Barnes
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 17 June 2016 Place Melbourne The Tribunal affirms the decision under review.
........................................................................
Egon Fice, Senior Member
Civil Aviation Safety Authority – Private Pilot License – safety-relevant medical condition - refusal to extend Class 2 medical certificate - whether safety of air navigation is adversely affected – applicant provided inaccurate or unreliable information to medical practitioners – issue of new medical certificates while an existing medical certificate was in force – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)
Civil Aviation Safety Regulations 1998 (Cth) Regs 67.205(3)(b)(ii), 67.010(1) Item 2.15, 67.155 Item 2.1, 67.015, 67.210, 67.215, 67.205 (3), 67.205(6), 67.205(2)(a)Cases
Roger Adrien Serong and Civil Aviation Safety Authority [2006] AATA 1123
REASONS FOR DECISION
Egon Fice, Senior Member
17 June 2016
This application is concerned with an ongoing dispute Mr David Barnes has with the Civil Aviation Safety Authority (CASA). Mr Barnes is the holder of a private pilot licence (PPL). In order to exercise the privileges of that licence, he is required to hold a current Class 2 medical certificate. Given that Mr Barnes is 40 years or older, his Class 2 medical certificate cannot remain in force for a period exceeding two years after the day when the certificate came into force (Civil Aviation Safety Regulations 1998 (CASR)
Reg 67.205(3)(b)(ii)).
On 30 October 2014 Dr David Fitzgerald, an Aviation Medical Officer with CASA, wrote to Mr Barnes informing him that he had been issued with a Class 2 medical certificate valid for 12 months. That certificate stated it remained valid until 11 August 2015. In a letter dated 10 May 2015 Mr Barnes requested that CASA extend the period during which his Class 2 medical certificate remained in force to 11 August 2016. In a letter dated 15 June 2015 CASA notified Mr Barnes that his application for an extension was refused. CASA’s delegate, Dr Peter Clem, stated that the extension for a period of one year of his Class 2 medical certificate was not appropriate or in the interests of the safety of air navigation.
On 6 July 2015 Mr Barnes lodged with the Tribunal an application seeking review of the decision made by CASA to refuse extending the period for which his medical certificate remained valid.
The only issue I am required to determine is whether CASA’s refusal to extend the period of validity of Mr Barnes’ Class 2 medical certificate was the correct decision having regard to the safety of air navigation.
THE ISSUE OF MEDICAL CERTIFICATES
Part 67 of the CASR deals with the issue of medical certificates. Essentially, to be granted a medical certificate, an applicant is required to pass a medical examination which satisfies the medical standards for the issue of a particular class of certificate. An applicant for a medical certificate who has a medically significant condition, as that expression is defined in Reg 67.010(1), which includes any bodily infirmity, defect or incapacity, must satisfy the criteria set out in the tables dealing with particular medical standards. There was no question about the fact that Mr Barnes has diabetes mellitus (Type II).
Regulation 67.155 of the CASR deals with the requirements to satisfy medical standard 2. Relevantly, it provides:
(1) Subject to subregulations (2) to (7), a person who satisfies the criteria in table 67.155 meets medical standard 2.
The first criterion found at Item 2.1 on table 67.155 relevantly provides:
2.1 Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or risk of incapacitation:
(a)…
(b) a disability or disease (active or latent);…
The expression safety-relevant is defined in Reg 67.015 as follows:
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.
Item 2.15 deals with diabetes mellitus in the following way:
2.15 If suffering from diabetes mellitus:
(a)the condition is satisfactorily controlled without the use of any anti-diabetic drugs; or
(b)if an oral anti-diabetic drug is used to control the condition:
(i) the condition is under on-going medical supervision and control; and
(ii) the oral drug is approved by CASA
There can be no question that a person suffering from diabetes mellitus has a medically significant condition which is safety-relevant. It is for that reason that the conditions set out at Item 2.15 must be met for the issue of a Class 2 medical certificate. Where the condition is controlled by an oral anti-diabetic drug, the medical evidence must demonstrate that the condition is under control and subject to on-going medical supervision. It is for that reason that CASA has only been prepared to issue to Mr Barnes a Class 2 medical certificate valid for a period of 12 months rather than two years, which is the maximum period for which such a medical certificate can remain valid for an applicant who is over the age of 40 years.
The holder of a current medical certificate may request an extension of time of the period during which a medical certificate remains in force. Regulation 67.210 provides:
(1) The holder of a current medical certificate issued by CASA may apply for an extension of the period during which the medical certificate remains in force.
(2) The application may be made to:
(a)CASA; or
(b)if the certificate is not subject to a condition to the effect that the period during which the certificate remains in force may be extended only by CASA – a DAME.
The grant of an extension of time is subject to the provisions set out in Reg 67.215 which provides:
(1) If, on receiving an application under regulation 67.210 for an extension of the period during which a current medical certificate remains in force, CASA is satisfied that extending the period will not adversely affect the safety of air navigation, CASA may extend the period by:
(a)entering the period of the extension on the certificate; or
(b)giving to the holder of the certificate a written notice setting out the period of the extension.
(2) An extension by CASA of the period during which the certificate remains in force must not be for longer than 1 year after the day when the certificate would expire if the period had not been extended.
It should be apparent from the above statutory provisions that where an applicant for a medical certificate has a safety-relevant medical condition, CASA must ensure that the grant of the medical certificate, and, in the event of an application for an extension of time during which the certificate remains in force, the period for which the extension is sought, will not result in the safety of air navigation being adversely affected. The only way in which CASA can be so satisfied is by reducing the period of time which passes between medical examinations. Hence the statutory limit of 2 years placed on applicants who are over the age of 40 years. Age is a relevant consideration to ensure the safety of air navigation is not impaired. So too is a safety-relevant medical condition. It should also be apparent from the statutory provision that even if CASA were satisfied that extending the period for which the medical certificate remains in force would not adversely affect the safety of air navigation, it remains open to CASA to refuse the extension application. The statutory provision does not compel CASA to extend the period of validity of a medical certificate.
What is also important as far as medical certificates are concerned is the time for which CASA decides they should remain in force. For example, in the case of a Class 1 medical certificate, that certificate can only remain in force for a period of 1 year (Reg 67.205 (3)). For a Class 2 medical certificate, the maximum period of time for a person who is less than 40 years of age is 4 years. CASA cannot issue medical certificates for periods which are longer than those stated in Reg 67.205 (3). Those time periods are maximums and CASA can issue medical certificates for whatever period it believes is appropriate and safe. Persons with safety-relevant medical conditions may be granted medical certificates but they are likely to be for shorter periods of time so that persons with such conditions can be closely monitored. Obviously, more frequent medical examinations will give CASA confidence that the safety of air navigation is not imperilled.
Section 43(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) relevantly provides:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:…
Effectively, what is provided by s. 43(1) of the AAT Act is for the Tribunal to stand in the shoes of CASA for the purpose of reviewing one of its decisions. In other words, I must be satisfied, on the evidence before me at the hearing, that extending the period as requested by Mr Barnes will not adversely affect the safety of air navigation.
CONTROL OF DIABETES MELLITUS
Dr Kerry Breen and I, in the case Roger Adrien Serong and Civil Aviation Safety Authority [2006] AATA 1123, canvassed in some detail the problems and consequences associated with persons who are unable to naturally control the level of sugar in their blood. Adverse consequences result where there is either too little or too much blood sugar. Hyperglycaemia (an excess of blood sugar) may lead to diabetic ketoacidosis which causes nausea, vomiting, and abdominal pain and can progress to cerebral oedema, coma and death. Years of poorly controlled hyperglycaemia leads to multiple primarily vascular complications that affect small and large blood vessels. Micro-vascular disease underlies the three most common and devastating manifestations of diabetes mellitus: retinopathy, nephropathy and neuropathy. Hypoglycaemia (a deficient level of blood sugar) is generally regarded as a more significant problem for aviators. Its onset can be subtle and difficult for the diabetic to detect. It can lead to impaired decision-making, disorientation, poor performance and incognisance of skills, confusion and unconsciousness.
In the Serong decision Dr Breen and I referred to a statement provided by Professor Eastman where he mentioned a number of articles which described the percentage of well-controlled, insulin diabetics, not suffering from autonomic neuropathy, who suffered hyperglycaemic events without awareness. In his oral evidence, Professor Eastman said that a patient may be at risk of impairment if blood glucose levels rose above 15 mmol/l. The articles referred to by Dr Eastman indicated a range of between 9 and 30% of patients tested suffered hyperglycaemic events without awareness. I point this out because Mr Barnes referred to the Serong case and submitted that hyperglycaemia was not an issue for pilots. That submission is incorrect. I should also point out that there is a difference between Mr Serong and Mr Barnes. Mr Serong was insulin dependent while Mr Barnes is not. As the Tribunal pointed out in Serong’s case, diabetics using insulin are at greater risk of hypoglycaemia than those treated by diet or oral hypoglycaemic agents.
However, it seems to me that the real issue which CASA has with Mr Barnes is that CASA aviation medicine qualified practitioners have formed the view that what Mr Barnes has told medical practitioners about his control of blood sugar levels may not be accurate or, at least, unreliable.
BLOOD SUGAR LEVEL MONITORING
Blood sugar level monitoring is only one part of the overall picture. It is probably common ground between the parties that blood sugar levels vary, sometimes considerably, depending on the time of day the measurement is taken and whether it is taken before or after food ingestion. Daily monitoring is done by the individual and not by a medical practitioner. Furthermore, it is a relatively simple matter to ingest a small quantity of absorbable glucose to ensure that a hypoglycaemic event does not occur.
However, the problem with hyperglycaemia is that its effect on other body organs, and in particular vascular complications, is usually noted after rather lengthy periods of time. Such problems can only be identified following a thorough medical examination. Therefore, CASA must regulate the interval between medical examinations such that it can be satisfied that any complications which may arise will be identified before they can affect the safety of air navigation.
In Mr Barnes’ case, concern about his poor insight into the safety risk posed by his diabetes was raised by Dr Peter Clem, a Senior Medical Officer in the Aviation Medicine Branch of CASA, in a letter dated 15 June 2015. This followed his examination by Dr Johnston, a DAME, on 28 October 2010 for renewal of his Class 2 medical certificate. Dr Clem noted that further enquiries with Mr Barnes’s treating doctors ascertained that management of his diabetes was sub-optimal. Furthermore, those enquiries revealed that in about January 2010 Mr Barnes was being treated for major depression and had been prescribed Setraline (Zoloft). Dr Clem also noted that Mr Barnes’s risk was increased because he was obese, his weight as at March 2010 being recorded as 141 kg.
The medical examination for Mr Barnes’ Class 2 medical certificate was conducted by Dr Arthur Pape on 11 August 2014. One of the questions asked of Mr Barnes was whether since his last aviation medical examination, he had sought medical advice or had any medical treatment for conditions other than routine checkups or minor illnesses. Although Mr Barnes told Dr Pape that the answer to that question was yes the only condition recorded was diabetes type 2. A further question asked of Mr Barnes was whether he had received treatment or been diagnosed with depression or any other psychiatric illness. Dr Pape recorded Mr Barnes’ answer as no on the Internet lodgement form. Both answers were plainly incorrect as Mr Barnes suffered a bout of major depression since his last medical and was prescribed an antidepressant.
When asked about this in cross-examination by Mr Carter, Mr Barnes said that Dr Pape had not asked him that question. While it is probably correct to say that Dr Pape did not ask whether he had experienced major depression since his last medical examination, the question refers to seeking medical advice or having had any medical treatment for any other condition. Plainly, Mr Barnes’ answer to that question was incorrect. In fact in cross-examination Mr Barnes explained that the reason why he and not tell Dr Pape that he had experienced major depression was that he did not think it was relevant. If that were truly his reason, then Mr Barnes does not understand the purpose of medical examinations conducted to determine whether a medical certificate for a PPL should be issued. The purpose of a medical examination in the context of aviation is to fully evaluate an applicant’s medical status to ensure that the safety of air navigation is unlikely to be affected.
Having now had the time to consider in some detail Mr Barnes’ history of attempting to obtain a Class 2 medical certificate valid for two years without conditions, and given the material that has been lodged by CASA and Mr Barnes on this application, I have formed the view that an extension of time of his current medical certificate valid for 12 months from 11 August 2014 should not be granted. In my opinion, CASA’s decision conveyed to him in a letter dated 15 June 2015 refusing to extend the period of validity of that Class 2 medical certificate, was the correct decision.
SUBSEQUENT GRANT OF CLASS 2 MEDICAL CERTIFICATE
Even if the decision I have come to on the extension application is incorrect, the consequences for Mr Barnes would not alter. I alluded to this possibility in my earlier decision regarding Mr Barnes’ right to apply for review, which is dated 21 April 2016 at [31]. That is because CASA issued to Mr Barnes on 17 February 2016 a Class 2 medical certificate valid for 24 months, subject to a number of conditions.
Regulation 67.205(6) of the CASR provides:
If a new medical certificate is issued to a person who holds a current medical certificate, and the new certificate comes into force before the current medical certificate is due to expire, the current certificate ceases to be in force at the last moment of the day before the day when the new certificate comes into force.
Accordingly, if the correct outcome of this application was that an extension of the period for which his 11 August 2014 Class 2 medical certificate remained in force should be granted, it would be taken to have been in force at the time CASA issued to Mr Barnes a 24 month Class 2 medical certificate on 17 February 2016. In fact, in accordance with Reg 67.205(2)(a), given that Mr Barnes’ last medical examination was done on 21 December 2015, that medical certificate came into force on the certificate’s appropriate day, which, for a person who has undergone any relevant examinations required for the purpose of the issue of the certificate, is the day when the last relevant examination was completed. That is, the 24 month Class 2 medical certificate came into force on 21 December 2015. If the extension of time were granted to his 11 August 2014 medical certificate, by reason of Reg 67.205 (6) of the CASR, his 11 August 2014 medical certificate ceased to be in force on 20 December 2015.
The 24 month Class 2 medical certificate contains restrictions, including a Special Condition which is set out in the letter of 17 February 2016. It requires Mr Barnes to provide to the Aviation Medicine Branch of CASA on or before 28 February 2017 a progress report from the doctor monitoring his diabetes, detailing a number of matters set out in that letter. In other words, Mr Barnes need do nothing until February 2017 to maintain a current Class 2 medical certificate. However he must comply with the Special Condition on or before 28 February 2017. Otherwise, that medical certificate will cease to be in force.
The fact that I have come to the conclusion that the Class 2 medical certificate issued to Mr Barnes on 11 August 2014 should not be extended does not alter the conclusion that at the present time, Mr Barnes holds a valid Class 2 medical certificate which will remain in force until 21 December 2017 subject only to the restrictions set out on that certificate including the Special Condition.
CONCLUSION
I find that the decision made by CASA on 15 June 2014 to refuse to extend Mr Barnes’ Class 2 medical certificate issued on 11 August 2014 was the correct decision. I affirm that decision.
31. I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of
32. Mr Egon Fice, Senior Member
[sgd].......................................................................
Administrative Assistant
Dated 17 June 2016
Date of hearing 30 May 2016 Applicant In person Advocate for the Respondent Anthony Carter
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