Barnes and Civil Aviation Safety Authority

[2016] AATA 256

Barnes and Civil Aviation Safety Authority [2016] AATA 256 (21 April 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	21 April 2016
Place	Melbourne

The Applicant has the legal right to seek review of CASA's decision to refuse to extend the period of validity of his Class 2 medical certificate issued on 11 August 2014. 

.................[sgd]..............................

Egon Fice, Senior Member

AVIATION –– Pilots –– Civil Aviation Safety Authority –– Class 2 medical certificate –– Risk to the safety of air navigation – Type II diabetes mellitus –– Right of review

Legislation

Civil Aviation Safety Regulations (Cth) 1998

Cases

Re Barnes and Civil Aviation Safety Authority [2015] AATA 272
Re Barnes and Civil Aviation Safety Authority [2012] AATA 756

REASONS FOR DECISION

Egon Fice, Senior Member

1. The Civil Aviation Safety Authority (CASA) granted to Mr David Barnes a Class 2 medical certificate valid for 12 months on 6 May 2010.  Mr Barnes is the holder of a Private Pilot Licence and therefore requires a Class 2 medical certificate in order to exercise the privileges of his licence.  His medical examination for the issue of that medical certificate was conducted by Dr RW Johnston, a Designated Aviation Medical Examiner (DAME).  Dr Johnson noted in his report that Mr Barnes was a diabetic and his diabetes was treated with oral medication.

2. Dr Johnston conducted another medical examination of Mr Barnes on 28 October 2010 as Mr Barnes was coming up for a renewal of his medical certificate.  Dr Johnston again indicated that Mr Barnes was diabetic and stated that his level of glycosylated haemoglobin was 5.3.  CASA also obtained a report from Dr Anthony Hunter regarding Mr Barnes’ diabetes.  That report, dated 11 October 2010, recorded Mr Barnes had remarkably stable diabetes with blood glucose levels ranging mostly between 4.0 and 8.0 mmols/L.  Mr Barnes had not reported any symptoms suggestive of hypoglycaemia.  Dr Hunter described Mr Barnes is doing a good job with his diabetes and that he had achieved excellent glucose control without any symptoms of hypoglycaemia.  He considered Mr Barnes fit to fly.

3. On 30 June 2011 CASA issued Mr Barnes with a new Class 2 medical certificate valid for 12 months from the date of the DAME examination.  That certificate was revalidated for a period of two months by Dr Johnston on 25 October 2011 following a medical examination.  On that date Mr Barnes lodged another application for renewal of his Class 2 medical certificate. 

4. CASA informed Mr Barnes that he needed to provide further medical reports in support of his application. Mr Barnes responded by email on 2 November 2011, demanding he be issued with a Class 2 medical certificate within three days otherwise he would commence legal proceedings.

5. Not having had any success with CASA, Mr Barnes lodged an application with the Tribunal on 16 January 2012 seeking review of CASA’s decision to refuse to issue him with a Class 2 medical certificate until further tests had been completed.  The Tribunal heard that application on 23 July 2012 and handed down its decision on 1 November 2012, affirming CASA’s decision to refuse to renew Mr Barnes’ Class 2 medical certificate.

6. It appears from CASA’s records that Mr Barnes did not hold a valid aviation medical certificate between 28 October 2011 and 30 October 2014.  This was followed by an application in which he sought to be issued with a Class 2 medical certificate valid for the maximum permissible period of time, which is two years.  In a letter dated 30 October 2014 CASA informed Mr Barnes that his Class 2 medical certificate valid for 12 months from the date of his medical examination had been issued.  That letter also advised Mr Barnes that when his medical certificate became due for renewal, in addition to the usual renewal medical examination and age-related tests, he was required to provide: a report from the doctor monitoring his diabetes; a report from an ophthalmologist; and a report from his DAME assessing cardiac risk.

7. On 17 November 2014 Mr Barnes lodged an application with the Tribunal (Matter No. 2014/5933) seeking review of CASA’s decision to issue him with a Class 2 medical certificate valid for the limited period of 12 months.  His complaint was that he was entitled to that medical certificate valid for two years.

8. I heard Mr Barnes’ application on 30 March 2015 and handed down my decision on 29 April 2015.  I found that the Tribunal did not have jurisdiction to review CASA’s decision made on 30 October 2014 to issue Mr Barnes with a Class 2 medical certificate for a period of 12 months rather than the 2 years requested.

9. On 10 May 2015 Mr Barnes wrote to CASA seeking an extension of the period during which his medical certificate remained in force.  That application was made pursuant to Reg 67.210 of the Civil Aviation Safety Regulations 1998 (CASR).  It provides:

   67.210 Medical certificates – application for extension of period in force

   (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.

10. CASA may extend the period of time during which a medical certificate remains in force.  Regulation 67.215 of the CASR provides:

    67.215 Medical certificates – extension of period in force by CASA

    (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 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.

11. In a letter dated 15 June 2015 Dr Peter Clem, a Senior Medical Officer with CASA, informed Mr Barnes that CASA was not satisfied that a 1 year an extension of his medical certificate was appropriate or in the interests of the safety of air navigation. Consequently, CASA refused his application.  In that letter Dr Clem noted that Mr Barnes had provided no reason or reasons in support of his application; nor had he provided any medical evidence which supported the grant of the extension application.

12. On 5 July 2015 Mr Barnes lodged an application seeking review of CASA’s decision to refuse to extend the period during which his Class 2 medical certificate remained in force.  However CASA requested that the Tribunal list the matter for an interlocutory hearing to consider its jurisdiction to hear Mr Barnes’ application.  That application was heard by Deputy President Forgie on 2 September 2015.  She delivered her decision on 13 October 2015, deciding that the Tribunal had jurisdiction to review the decision made by a delegate of CASA on 15 June 2015 refusing Mr Barnes’ application for an extension of the period for which his Class 2 medical certificate remained in force.  Deputy President Forgie concluded, at [52]:

    Given that Mr Barnes’ medical certificate expired on 11 August 2015, r 67.215(2) would, on review of CASA’s decision, prevent any extension of the period beyond 11 August 2016.  That does not mean that the review of the decision is futile when looked at in terms of the law.  While I understand that Mr Barnes has yet to put forward any medical or other evidence that would support his case for extending the period, I’m not prepared to deny him that opportunity at the outset by dismissing his application under the power given by s. 42B of the AAT Act.

13. As I understand Deputy Forgie’s reasons for decision (with which I agree); because Mr Barnes made his application pursuant to Reg 67.210 at a time when his Class 2 medical certificate was current and in effect, although that certificate would cease to have effect by the effluxion of time on 11 August 2015, if an extension were granted, which in his case could not be for longer than one year after the day which the certificate would expire if the period had not been extended, it would remain valid until 11 August 2016. 

14. The Tribunal does not have power to extend the validity date beyond 11 August 2016.  Therefore, if the review of CASA’s decision were to produce a favourable result for Mr Barnes, even after 11 August 2015, his Class 2 medical certificate would be extended and remain valid until 11 August 2016.

15. Therefore, if the Tribunal were to determine Mr Barnes’ current application prior to 11 August 2016, and if Mr Barnes were to succeed, there would be a very short window in which Mr Barnes’ Class 2 medical certificate would be regarded as current.  However, in order to succeed, Mr Barnes needs to satisfy CASA that extending the currency period will not adversely affect the safety of air navigation. 

16. I should at this point refer to the criteria which must be met for a person to satisfy medical standard 2 which is necessary for the issue of a Class 2 medical certificate.  The criteria set out in Table 67.155 of the CASR and relevant to Mr Barnes’ application, are at Item 2.15 which provides:

    2.15 If suffering from diabetes mellitus:

    (a)the condition is satisfactorily controlled without the use of any anti-diabetic drug; 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

17. There was no question about the fact that Mr Barnes has diabetes mellitus and therefore there can be no question about the fact that he does not meet the criteria for medical standard 2 unless CASA were satisfied with those conditions set out in Item 2.15 of the CASR.  Mr Barnes’ diabetes is controlled with oral medication.  In his letter of 15 June 2015 Dr Clem said :

    On 24 October 2014 your application was considered at a Complex Case Management meeting where the consensus reached was to issue [you] with a class 2 medical certificate valid for 12 months from date of examination.  This was based upon your medical history, medication, risk factors such as your weight (which as at DAME examination in August 2014 indicated a BMI of 37), a risk of accelerated development of atherosclerosis and a potential for rapid deterioration in your medical condition due to your diabetes.

18. In his reasons for the application, Mr Barnes said:

    CASA did not supply a comprehensive reason why it “will adversely affect the safety of their navigation” as per regulation 67.215 of the CASR 1998.  Considering that a pilot Medical Certificate had been issued by CASA for the period of one year, which shows there is no safety issue in extending this for another year.  Please see attached documentation.

19. Under the cover of an email dated 17 February 2016 which was sent at 4.24 pm, CASA attached a new medical certificate issued to Mr Barnes which was valid from his last medical examination on 21 December 2015 and which expired on 21 December 2017.  However, in an email to Mr Barnes sent on the same day at 17.04 pm, CASA pointed out that the certificate in fact issued did not contain condition 11 which was referred to in the cover letter.  Therefore, CASA reissued the medical certificate with the relevant condition endorsed upon it.  That medical certificate contained all three conditions to which CASA referred.  In other words, it was a Class 2 medical certificate valid for two years.  It contained three conditions which are stated as follows:

    4.  For CASA audit

    11. Special Condition: This certificate is subject to the condition as specified in CASA’s letter dated 17 February 2016

    14.  Reading Correction to be available whilst exercising the privileges of this licence

20. The letter of 17 February 2016 stated:

    Following assessment of your application to has been decided to issue you with a Class 2 Medical Certificate valid for 24 months from the date of your last medical examination and subject to the conditions set out below.…

    Condition for THIS certificate

    You are required to provide to the Aviation Medicine Branch on or before 28 February 2017:

    1.A progress report from the doctor monitoring your diabetes (i.e. your General Practitioner, DAME or consultant Endocrinologist) dealing with the following:

    ·     current status of your diabetic condition and level of control by reference to HbA1c results and glucose monitoring diary)

    ·     any episodes of symptomatic or biochemical  hypoglycaemia/hypoglycaemia in the preceding 12 months and details of intervention required

    ·     results of any renal function tests, including albumin/creatinine ratio (note a 24 hour urine in protein excretion only required if clinically indicated)

    ·     Total Cholesterol, LDL and HDL testing performed

    ·     current treatment

    ·     confirmation that your cardiac risk index score is not greater than 14.

21. In a letter dated 7 March 2016 Mr Anthony Carter, a Principal Lawyer with the Legal Branch of CASA, advised the Tribunal that CASA had issued to Mr Barnes a Class 2 medical certificate valid for a period of two years subject to conditions.  Mr Carter said he understood it was Mr Barnes’ intention to maintain his current application for review of CASA’s decision of 15 June 2015 regarding the extension of the period of validity of his previous medical certificate.  However, Mr Carter submitted that in light of the issue of a new medical certificate, a review of the now expired 1 year medical certificate would be futile and he sought to confirm that Mr Barnes intended to maintain the current proceeding.  He asked if the Tribunal could convene a telephone directions hearing to clarify the position.

22. Although Mr Barnes objected to the Tribunal holding a directions hearing, that seemed to me to be the only means by which I could determine how this matter should proceed.  I held a directions hearing by telephone on 16 March 2016 in the course of which Mr Carter referred me to Reg 67.205(6) of the CASR.  It provides:

    (6) If the new medical certificate is issued to a person who holds a current medical certificate, and the new certificate comes into force before the current 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.

23. As this development had not been previously flagged by CASA, I made directions that both parties provide to the Tribunal written submissions regarding the impact of Reg 67.205(6) on Mr Barnes’ application.

24. In making this decision, I have taken into account Mr Barnes’ statement of issues, facts and contentions lodged with the Tribunal on 15 March 2016 along with its attachments; a medical report provided by Dr Colin Madeley dated 2 March 2016; CASA’s written submissions dated 23 March 2016 and submissions provided by Mr Barnes dated 20 March 2016.  I have also considered a letter from Dr Sarah Souter, an Aviation Medical Officer with CASA, dated 1 February 2016 addressed to Mr Barnes.  In that letter, Dr Souter pointed out that diabetes increases the risk of cardiovascular disease and stroke as well is causing damage to many organs of the body.  Hence CASA’s requirement that Mr Barnes provide a current cardiovascular risk assessment.

25. There is no issue about the fact that a medical certificate is an authorisation as that expression is defined in Reg 11.015 of the CASR.  It is a certificate which is capable of being granted to a person under the CASR.  Furthermore, a medical certificate is properly described under the CASR as a time-limited authorisation.  It is an authorisation that, under the Regulations, ceases after a particular period or is granted by CASA for a specified period.  In this case, Mr Barnes’ Class 2 medical certificate is a time-limited authorisation which expired on 11 August 2015, subject to any extension of that time either by CASA or the Tribunal on review.

26. Mr Barnes in his application for review said that CASA did not supply a comprehensive reason why it would adversely affect safety of air navigation if an extension of time were granted. As will become apparent presently, it is not required to do so.  It simply needs to form the view that if the extension were granted, Mr Barnes’ diabetes may endanger the safety of air navigation.  If it does form that view, CASA has powers to make directions regarding examinations in respect of medical certificates.

27. Reg 67.205 deals with medical certificates and the period for which they remain in force.  Plainly, the period during which a medical certificate remains in force is tied to any relevant medical examinations which are required.  Relevantly, it provides:

    67.205 Medical certificates – period in force

    (1) In this regulation:

    appropriate day means:

    (a)for a medical certificate issued to a person who:

    (i)     has never held a medical certificate, or a person who has previously held a medical certificate that has expired; and

    (ii)    has undergone any relevant examinations required for the purpose of the issue of the certificate;

    the day when the last relevant examination is completed; and…

28. The CASR authorizes CASA to issue directions about examinations for the issue of medical certificates.  There is no reason why those directions do not apply equally where an applicant seeks an extension of the period for which their medical certificate remains in force.  In accordance with the Reg 67.215, before extending the period of time during which a current medical certificate remains in force CASA must be satisfied that by extending the period, the safety of air navigation will not be adversely affected.  Regulation 67.165 relevantly provides:

    67.165 Directions about examinations for issue of medical certificates

    (1) if CASA has reason to believe that an applicant for the issue of a medical certificate has a condition (including a condition other than a medical condition) that may, if he or she is issued the medical certificate, endanger the safety of air navigation, CASA may direct the applicant to do either or both of the following:

    (a)submit to an examination carried out by medical practitioner, specialist psychiatrist, clinical psychologist, audiologist, optometrist, orthoptist, orthotist, occupational therapist, specialist prosthetist or a practitioner of another kind specified in the direction;

    (b)submit to an examination or test by a person (not necessarily a medical practitioner) expert in the safe performance of the particular activity in respect of which the medical certificate is sought.

    (2) For paragraph (1)(a), CASA may nominate a particular practitioner, of a kind mentioned or referred to in that paragraph, who is to carry out the examination.…

29. It cannot be correct to say, as does Mr Barnes, that because a medical certificate was issued for one year, no safety issue arises if the currency period is extended for one further year.  The very purpose of the time limit is to enable CASA to remain satisfied that no safety issues have arisen since the last medical examination.

30. Furthermore, it is apparent from Reg 67.165, that CASA may nominate the particular practitioner who is to conduct the examination.  That is despite the fact that an applicant’s GP may have provided a report or even if a report is provided by a DAME.  That is because specialist knowledge may be required in particular circumstances.  It is up to CASA to determine the nature of the examinations and the persons who are to conduct those examinations so that it can be reasonably satisfied that the safety of air navigation will not be compromised.

1. CASA’s alternative argument regarding the futility of Mr Barnes continuing to pursue this application is based on Reg 67.205(6) which I have set out above at [22]. The problem with this argument is that the new medical certificate issued by CASA on 17 February 2016 to Mr Barnes for a period of 2 years (regardless of which certificate one considers to be relevant although, plainly, the second certificate corrected the first which omitted a condition set out in the covering letter) issued at a time when his 1 year medical certificate had expired and the extension of the period for which that medical certificate remained in force had not been granted. Reg 67.205(6) only applies where a new medical certificate is issued to a person who holds a current medical certificate. It does not, therefore, apply in Mr Barnes’ case. While that may pose an interesting question if an extension of time were granted, from a practical perspective, it is most likely irrelevant. That is because it was a condition of the 2 year medical certificate that Mr Barnes provide to CASA on or before 28 February 2017 a number of medical reports. As far as I am aware, Mr Barnes has refused to obtain those reports.

   CONCLUSION

2. I find that while Mr Barnes’ application to the Tribunal regarding CASA’s refusal to grant an extension of the period for which his 1 year medical certificate remained in force cannot be said to be futile, as the legal right to seek review cannot be said to be misconceived, lacking in substance or having no reasonable prospect of success; the window of opportunity is narrow.  In addition to that, Mr Barnes must comply with CASA’s request to comply with its requirements regarding medical examinations so that it can be reasonably satisfied that the safety of air navigation will not be adversely affected.  Even if he were to satisfy CASA (and the Tribunal standing in CASA’s shoes for the purpose of review), that the safety of air navigation would not be adversely affected, at best his 1 year medical certificate would expire in August of this year.  The benefit would be limited to a couple of months if it were possible to bring on the hearing of this matter quickly.

3. From a practical perspective, it is obvious that Mr Barnes would be better served by complying with the medical examination requirements CASA has indicated apply to the 2 year medical certificate issued in February of this year.  However, that is not a decision for this Tribunal to make.

4. The parties should notify the Tribunal as soon as possible if either wishes to proceed with the hearing of the current application. 

35.     I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

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Associate

Dated   21 April 2016

Date of hearing	16 March 2016
Date final submissions received	23 March 2016
Solicitor for the Respondent	Anthony Carter