Campbell and Civil Aviation Safety Authority
[2011] AATA 885
•13 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 885
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1010
GENERAL ADMINISTRATIVE DIVISION ) Re JAMES CAMPBELL Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member
Dr J Chaney, MemberDate13 December 2011
PlacePerth
Decision The Tribunal affirms the decision under review. …(sgd)…Mr A Sweidan......
Senior Member
CATCHWORDS
Civil Aviation - Private Pilots licence - CASA issued licence with restrictions due to applicant's medical history of cerebrovascular stroke - applicant aged 75 seeking removal of restriction regarding "safety pilot” - decision under review affirmed
LEGISLATION
Civil Aviation Safety Regulation (CASR) Part 67.180(e)(ii) and 67.195
Civil Aviation Regulations 1988 regs, 5.04(1), 5.04(3)Civil Aviation Act 1988 ss 20AB(1), 3(1), 9A(1)
CASES
Re Window v Civil Aviation Safety Authority (1999) 56 ALD 316
Re Hall and Civil Aviation Safety Authority [2004] AATA 21
Re Mulholland and Civil Aviation Safety Authority [2007] AATA 1952
Re White and Civil Aviation Safety Authority (2009) 105 ALD 33
REASONS FOR DECISION
13 December 2011 Mr A Sweidan, Senior Member
Dr J Chaney, MemberBackground
1. The decision under review in this application (the reviewable decision) is the decision taken by a delegate of the respondent on 3 March 2011, to issue a Class 2 medical certificate subject to the condition, that applicant can only fly with a “safety pilot”.
Issues
2. In reviewing the reviewable decision, the Tribunal must, having regard to the safety of air navigation as the most important consideration, determine the following issues,
2.1whether the applicant meets the medical standard for the issue of a Class 2 medical certificate;
2.2if not, whether the extent to which the applicant fails to meet those standards is likely to endanger the safety of air navigation; and
2.3if so, whether any conditions could be imposed upon a medical certificate which would ameliorate the threat posed to air safety by the applicant’s failure to meet the Class 2 medical standard.
Facts
3.The applicant is currently 75 years of age.
4.The applicant holds a private pilot (aeroplane) licence.
5. On 9 February 2011, the applicant was examined by a Designated Aviation Medical Examiner (DAME), Dr Robert Liddell for the purpose of his application to the respondent for a Class 2 medical certificate. The application was accompanied by a request from Dr Liddell dated 10 September 2010 that the restriction on the applicant’s licence of ‘with safety pilot’ be lifted.
6. On 3 March 2011, the applicant was advised that the respondent had requested an independent specialist review of the applicant’s case and an opinion to assist with its aeromedical risk assessment.
7. Pending receipt of that opinion, a waiver of the Medical Standards was made regarding the applicants history of cerebrovascular stroke with underlying patent foramen ovale and atrial septal aneurysm, and a medical certificate was issued in accordance with Civil Aviation Safety Regulation (CASR) Part 67.180(e)(ii) and 67.195. The medical certificate contained the following conditions:
Class 2 Valid with safety pilot only valid for 12 months
Aircraft Requirements
(1)The aircraft flown must be configured with side by side seating in the cockpit;
(2) The aircraft being flown must have a full set of dual flying controls.
Requirement of a pilot with a special medical certificate with conditions(s) 8 and/or 9
(1)To wear a shoulder restraint harness at all times when occupying a control seat;
(2)To ensure the other pilot has read the requirements stipulated in this document.
Requirements of the other pilot flying with a pilot with a special medical certificate with condition(s) 8 and or 9.
(1)To occupy a control seat, except for short absences (absences only in cruise with the autopilot engaged);
(2) To be endorsed and current on the aircraft type being flown;
(3) To be appropriately rated for the in-flight conditions;
(4)To have a medical certificate not restricted to multi-crew flight operations;
(5) To be aware of the type of incapacity the pilot may suffer in flight;
(6)To be prepared to take over the aircraft controls during critical phases of flight;
(7)to be competent and capable of concluding the flight safely from the control seat.
8.On 17 March 2011, the applicant applied to the Tribunal for a review of the reviewable decision. Attached to this application were reports from the applicant’s neurologist and cardiologist, to which further reference is made below.
Relevant Statutory and Case Law
Requirement to hold a current medical certificate
9. Subregulation 5.04(1) of the Civil Aviation Regulations 1988 (CAR) provides that the holder of a flight crew licence must not perform a duty authorised by that licence if the person does not hold a current medical certificate that is appropriate to the licence.
10. Subregulation 5.04(3) of the CAR provides that, in relation to a private pilot licence, the appropriate medical certificate is a Class 1 or a Class 2 medical certificate.
11. Subsection 20AB(1) of the Civil Aviation Act 1988 (CA Act) 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.
12. By ss.3(1) of the CA Act, the term ‘civil aviation authorisation’ is defined to include, inter alia, a certificate issued under the Regulations.
Medical Certification
13. The issuing of medical certificates is governed by Part 67 of the Civil Aviation Safety Regulations 1998 (the CASR). Regulation 67.180 provides for the issuing of medical certificates. Regulation 11.056 allows the respondent to issue a medical certificate to a person “subject to any condition that is necessary in the interests of the safety of air navigation, having regard to the medical condition of the person”.
14. Regulation 67.180 prevents the respondent issuing a medical certificate unless the applicant meets the “relevant medical standard” or the extent to which the applicant does not meet that standard, is not likely to endanger the safety of air navigation.
15. In some circumstances it is by using regulation 11.056, to impose conditions upon a medical certificate that the respondent can be satisfied that the extent to which a person fails to meet the applicable medical standard is not likely to endanger the safety of air navigation.
16. In accordance with regulation 67.015 of the CASR, a condition is “safety-relevant” if it reduces, or is likely to reduce the ability of a person to exercise the privileges conferred by a relevant licence.
17. Regulation 67.010 provides that the relevant medical standard for a class 2 medical certificate is medical standard 2. Medical standard 2 is defined in that regulation to mean the standards set out in table 67.155.
18. Regulation 67.010 also defines the terms ‘medical practitioner’ and ‘specialist medical practitioner’.
19. The period during which a medical certificate issued under r.67.180 remains in force is determined under r.67.205.
Medical Evidence
20. On 8 August 2008, Dr Nai Y Lai, Consultant Neurologist provided a report to Dr Dayo in which he stated:
‘I reviewed this 72 year old Tax Accountant who in mid August had noticed a sudden onset of right arm numbness lasting seconds, followed by word finding difficulties for about 24 hours, and had difficulty with keyboarding that lasted for a few days at least. Since then he has not had any further events and I had started him on Plavix, which he tolerated well.
The other possible risk factor is high blood pressure and his blood pressure is consistently raised and today is 150/90.
The Carotid Doppler did not show any significant ICA stenosis.
Today he has normal station and gait. Visual fields are full and speech is normal.
In short, Mr Campbell has had a least at TIA. If not, a small stroke, and in the first instance I have asked him to continue to take Plavix regularly. I have organised an MRI on him and am still awaiting the results of the Echocardiogram. I have also organised a Holter Monitor for him.’
21. On 3 October 2008, Dr Lai provided a further report in which he stated:
‘…
His CT was reported as normal, and the Carotid Doppler did not show any major ICA stenosis. His Echocardiogram is unremarkable, and he is currently on Iscover. His MRI confirmed however that he had a left posterior frontal cortical stroke which was recent.
I have advised him to continue his Iscover and have organised further cardiac assessment to exclude cardiogenic source of emboli, including Holter Monitor and a TOE.’
22. On 24 October 2008, a further report was provided by Dr Lai in which he stated:
‘I reviewed this 72 year old Tax Accountant who in mid August had had a left frontal cortical stroke causing right arm numbness followed by word finding difficulty. Since then he is back to normal and his neurological assessment is unremarkable. He is on Isocover. His Holter monitor was unremarkable but his TOE shows an atrial septal aneurysm and patent foramen ovale. The most recent research data shows that the combination of PFO or atrial septal aneurysm only increases the risk of further stroke by a marginal amount and hence I would be quite happy for him to stay on the Isocover at present. I have organised a thrombophilia screen and if the results are normal, I have discharged him back to your care.
As he has not had any further events it is reasonable for him to resume driving but I have advise him to contact the relevant Air Traffic Authorities with regard to his flying.’
23. On 24 February 2009, Dr Lai provided a further report, in which he stated:
‘… His MRI however showed that he had a left posterior frontal cortical stroke. Further investigations for the cause of the stroke including the Carotid Doppler and Holter Monitor were unremarkable, but the Transoesophageal Echocardiogram had shown an atrial septal aneurysm and patent foramen ovale. He is adamant that since then he has not had any neurological deficit and has not had any further events.
…
As indicated in my last letter, the presence of atrial septal aneurysm as well as patent foramen ovale, increased the risk of further stroke by only a marginal amount, and hence I would continue on the Clopidogrel for further stroke prevention. He also had thrombophilia screening which was negative. Having had a stroke in August 2008 and having been on a prevention therapy, I would rate the risk of further strokes per annum at least the first year as about 5% or less. As his blood pressure is raised today, I have asked him to come and see you regularly to have his blood pressure monitored, and if this is persistently raised, it is appropriate to start him on antihypertensive agent as further stroke prevention.’
24. On 8 April 2009, Dr Keith Grainger, Neurologist, provided a report in which he stated:
‘…
The TOE showed an atrial septal aneurysm and a patent foramin ovale which raised the possibility of paroxysmal emboli and I would not have considered this likely except that he says that he had been spending 10 hours a day at his computer with very little breaks having done this for a couple of months with the risk of a DVT however there were no symptoms to suggest this.
He had been under pressure working 10 hours six days a week as a tax consultant which may have elevated his blood pressure.
Neurological examination today was entirely normal and there were no cardiac or cervical bruits with his pulse being 72 in sinus rhythm and I believe a 24-hour Holter monitoring showed no significant abnormality.
I would suggest that he have a 24 hour blood pressure monitoring as he may warrant hypotensive therapy.
With respect to the risk of a further acute stroke the risk is in the order of 5-7% a year. If he does have hypertension this would be lowered by about 1% or so however I would not have felt it would get down to 3% per annum.
25. The applicant’s consultant neurologist, Dr Nai Y Lai provided a further report dated 21 December 2009 in which he stated that:
‘This 73 year old had a cryptogenic stroke in mid-August 2008 and has not had any further events since he has been on Clopidogrel. In my previous letter dated February 24 2009, I mentioned the risk of a recurrent stroke would be less than 5% in the first year and I would continue with the estimation that the risk of further stroke in view of his age group would be between 3-5% per annum.
26. The applicant’s cardiologist, Dr Bernard Hockings, provided a report dated 11 November 2010 in which he states:
‘…Mr Campbell has a patent foramen ovale with an atrial septal aneurysm. The letter from Dr Fitzgerald from CASA indicates that Mr Campbell must fly with a safety pilot. Two of the reasons given are that Mr Campbell has a patent foramen ovale which may predispose to further embolic events and that the lesion has not been rectified. Mr Campbell understands that it is a relatively simple procedure to close a patent foramen ovale but the problem is that there is no evidence that closing the defect makes any difference to the risk of recurrent stroke. In any event Mr Campbell’s MRI and MRA from last year indicate that the problems in the brain are related to small vessel disease rather than embolic phenomena.
Mr Campbell’s blood pressure today was 146/80 but I note that it was 125/75 prior to his stress test with you and that the stress test was normal. The cardiovascular examination today was normal as was the resting ECG.
Mr Campbell has seen Dr Lai the neurologist and I understand Dr Lai feels that Mr Campbell’s chance of having a recurrent stroke is only very slightly higher than that for an average person of his age.
In my opinion there is no cardiac contraindication to Mr Campbell having the endorsement removed and flying as a solo pilot. I do not regard the patent foramen ovale and atrial septal aneurysm as being of clinical significance to the situation. …’
27. On 3 May 2011, Dr Lai provided a further report in which he stated:
‘As I outlined to Mr Campbell the risk of recurrent stroke in association with patent foramen ovale is 2%-3% per annum. With his added risk of hypertension and his age I would put down his risk of recurrent stroke in the future as 3%-5% per annum.’
28. On 17 May 2011, Dr Graeme Hankey, Consultant Neurologist, provided a report in which he stated:
‘…the reason for the discrepancy between the risk estimates of stroke recurrence quoted by Mr Campbell’s neurologist and the New England Journal paper by Mas et al that I had previously referred to (a 15.2% risk of stroke over four years in those with PFO and ASA) are the nature of the studies and the selection basis.
The Mayo Clinic study was a case control study whereas the study by Mas et al was a prospective observational study.
With regard to your second question about the annual and lifetime risk of seizure in someone who has has a stroke, there is not only the study by the Bladen et al which you quote, but also another study, albeit several years ago, from the Oxford Community Stroke Project published in the British Medical Journal in 1997.
In this study, 675 patients with a first stroke who were ascertained in the community of Oxfordshire and assessed by a neurologist, were prospectively followed up for a minimum of two years for the occurrence of single and recurrent seizures. 52 patients had one or more post stroke seizures. The five year actuarial risk of post stroke seizure in survivors was 11.5% (95% confidence interval 4.8-18.2%). The relative risk of seizures, in comparison with the general population, was estimated at 35.2 in the first year after stroke and 19.0 in the second year. The risk of seizures was increased in survivors of subarachnoid and intracerebral haemorrhage (hazard ration for intracranial haemorrhage versus ischaemic stroke 10.2 (95% confidence interval 3.7-27.9). The risk of seizures after ischaemic stroke was substantial only in patients presenting with severe strokes due to total anterior circulation infaction. Only 9 of 295 patients (3%) who were independent one month after stroke suffered a seizure between on one month and five years (actuarial risk 4.2%; 95% confidence interval 0.1-8.3%).
The study suggested that stroke patients have about an 11.5% risk of a single or recurrent seizure in the first five years after strokes. Patients with more severe strokes or haemorrhagic strokes were at high risk.’
29. On 27 June 2011 Dr John Cameron, Consultant Neurologist, provided a report in which he stated:
‘…
Overall though, I would agree with Dr Bernard Hockings, cardiologist opinion that “I do not regard the patent foramen ovale and atrial septal aueurysm as being clinically significant in this situation.”
I would consider James Campbell’s cardiac problem with PFO and ASA has been a significant risk factor for the genesis of further cerebrovascular events on the present information available.
In particular, James Campbell is on an anti-platelet agent, Clopidogrel which would significantly reduce his risk of further thrombatic ischaemic episodes.
…
In James Campbell’s situation however, it appears he only had a small cortical thrombotic ischaemic stroke with no persisting neurological impairment. This would tend to make it unlikely that he would be at significant risk of developing post stroke epilepsy.
It seems post-stroke epilepsy occurs in 2-4% of all patients. There would appear to be risk factors which within this group predispose one to more likely developing epilepsy.
…
In Figure 3 in that particular article, it would appear that prevalence has reached a peak around 2 years after which it appears to stabalize, ie, most post stroke victims would have suffered a seizure within the first two years of the event.
James Campbell suffered his cortical thrombotic stroke in mid August 2008, some 3 years ago.
Overall, I do not believe on present literature that the existence of a PFO and ASA in this man represent any significant risk of embolic stroke. His story is far more compatible with a thrombotic cortical stroke.
He is on an anti platelet agent which should reduce the risk of further event, although the risk facts appear to be controlled.
His cortical infarct was small and caused only mild and transient neurological impairment with the event occurring approximately 3 years prior. Overall I would assess at this time, his risk of post stroke epilepsy is very low as far as one can ascertain from the various studies available. I do not believe he is at any significant risk of suffering seizure activity more than other persons of his age.
There may be a case here to remove the restriction with a safety pilot unless he is carrying passengers. If he wishes to fly solo, he should not carry passengers.’
Applicants Contentions
30. The applicant did not give oral evidence but filed a statement which reads as follows:
31. “I own an aeroplane.
32. I have a Class 2 (Private Pilot’s Licence).
33. I fly mainly outside Controlled airspace and purely for recreation and pleasure.
34. In August 2008 I didn’t feel too well for a couple of days, went to the Doctor and, following a series of tests including an MRI, I was diagnosed, in October of that year, as having suffered a stroke. I was told not to fly or drive. The prohibition on driving was revoked by the specialist in November 2008.
35. When I went for my regular medical examination in the following January, CASA refused to issue me with a Class 2 medical approval.
36. I was told I would have to wait at least two years post-stroke before my medical condition would be reviewed.
37. After two years I applied for a review and was initially refused a renewal of my medical fitness to fly but after a series of requests for a further review and submissions of very favourable medical opinions I was issued a Class 2 medical fitness certificate – subject to the mandatory presence of a “safety pilot”. This was in March 2011.
38. In April 2011 I underwent a further MRI organised by Dr Nai Y Lai. Reports enclosed. It was on the basis of these reports that I decided to appeal to the AAT.
39. In a letter (T21) Dr Fitzgerald claims there is no strict definition of acceptable risk of further stroke but around 5% would be “acceptable” while conditions that may result in seizure activity, 0.5%. I have never had a seizure. As far as I am aware I am not a risk of seizure.
40. In a letter dated 3 May 2011 to my DAME, Dr Robert Liddell (formerly Director of Aviation medicine at CASA) Dr Nai Y Lai, gives my risk of recurrent stroke with PFO at 2-3% per annum, but allowing for my age and hypertension my risk of recurrent stroke he estimates at 3-5% per annum.
41. Referring to Dr Cameron’s report the essence of it is that I meet the aforementioned risk level for the issue of an unrestricted Class 2 medical certificate.
42. The studies mentioned in the report from Dr Hankey I am advised are “useless”. They do not select populations for their statistics – these will include mainly people who are moribund, bedridden, full of risks such as smoking, other diseases, diabetes etc. There are no figures quoted for healthy people individuals such as myself so until the statistics for “well” people without other risk are used to get the risk it is totally false to put me in that risk class.
43. It seems to me that CASA is taking a “blanket approach”. All the opinions sourced by them are based on theoretical grounds. None of the specialists whose opinions they put forward have examined me. Those who have “run the ruler” over me consider that I fit the CASA criteria for the issue of a “clean” Class medical certificate.”
The Class 2 Medical Standard
44. Regulation 67.010 provides that the Class 2 Medical Standard is set out in Table 67.155 of the CASR. The extracts from the Class 2 Medical Standard relevant to this case are set out in the respondent’s Statement of Facts and Contentions at paragraph 19.
Safety is the primary consideration
45. By s.9A(1) of the CA Act, the respondent 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.
Meaning of ‘likely’
46. The term ‘likely’ when used in the context of the issue of aviation medical certificates pursuant to Part 67 of the CASR, should be understood as a reference to a substantial or real and not remote risk of a particular event occurring. This has been established in a number of decisions of this Tribunal as for instance, in Re Window v Civil Aviation Safety Authority (1999) 56 ALD 316 at [60], the Tribunal said:
Having regard to the need to protect public safety while having regard to a person’s entitlement to pursue his or her ambitions, we consider that the word “likely” means “a substantial or real and not a remote chance”. That is not a matter which can be assessed on statistical likelihood and certainly does not mean “more likely than not”, “odds on” or “a more than 50% chance of a thing happening”. To adopt those latter three meanings would, in our view, be to place too little weight on the protection of public safety and too much on an individual’s entitlements.
47. Similarly, in Re Hall and Civil Aviation Safety Authority [2004] AATA 21 at [54] the Tribunal noted that:
As the Tribunal stated in Re Window (supra), the assessment of what is “likely” cannot be based on statistical likelihood. In this context, it is a matter of weighing up the requirements of air safety with the applicant’s interest in the safe exercise of the privileges and performance of the duties associated with holding a private pilot’s licence. The Tribunal’s view is that in June 2003, given the medical information available to CASA, a decision to impose a condition on Mr Hall’s Class 2 Medical Certificate was reasonable given the risks associated with his heart condition when considered in the context of air safety. In terms of the medical standard in Schedule 1, Part 1 of the old regulations, and whether his heart condition was likely to interfere with the safe exercise of his privileges or performance of his duties associated with his holding a private pilot’s licence, there was a real risk, albeit a small one. When issues of air safety are under consideration, a small risk may be sufficient to trigger the need to take appropriate action to address the risk. This was the case here.
48. In Re Mulholland and Civil Aviation Safety Authority [2007] AATA 1952 at [65] to [67], the Tribunal said that:
Whether Mr Mulholland has a high risk or a low risk of losing consciousness while flying an aircraft is simply irrelevant. The fact is that he has a risk of incapacitation which is significantly different to the remainder of the aviator population who do not suffer from syncope or any other safety-relevant medical condition. In our view the risk of incapacitation is real and not an imaginable or fanciful risk nor is it a remote risk.
Whatever the risk may be of Mr Mulholland suffering a syncopal attack whilst flying, it is not to the point that it can be shown statistically that the risk is small. Dr Nilsson contended that the evidence does not support a finding that the frequency of syncope episodes is increasing. This is not a relevant test under the legislation. What is important is whether Mr Mulholland meets the requirements for the issue of a Class 1 or Class 2 medical certificate. If he does not, the only question remaining is whether CASA should issue to Mr Mulholland medical certificates with conditions in accordance with regulation 67.195 of the CASR. Any conditions imposed on a medical certificate must be necessary in the interests of the safety of air navigation, having regard to the medical condition of the person.
It is also important to understand that CASA must bear in mind the safety of persons other than Mr Mulholland, on the ground and in the air, and also their property. CASA’s principal concern must be the safety of air operations generally and this is clearly set out in s 9A of the Act which, relevantly, provides:
(1) In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
49. Furthermore, in Re White and Civil Aviation Safety Authority (2009) 105 ALD 33 at [79] the Tribunal accepted that the nature of the potential incapacity in question is a relevant consideration to bear in mind in assessing whether the extent to which a person fails the relevant medical standard is likely to endanger the safety of air navigation.
Medical Certification – the decision-making process
50. In the Tribunal’s view it is clear that, r.67.180, when read with r.11.056 of the CASR requires the Tribunal to apply the following decision-making process in determining whether a person should be granted a Class 2 medical certificate:
50.1determine whether the applicant meets the medical standards in table 67.155 – if the relevant standard is met, the certificate must be granted - see r.67.180(1)(a) and (2)(e);
50.2if the applicant does not meet the relevant medical standard, then the Tribunal must determine whether the extent to which the applicant fails the medical standard is likely to pose a risk to the safety of air navigation – if not, then the certificate may be granted - see r.67.180(2)(e)(ii) and (f)(ii);
50.3if the extent to which the applicant fails the medical standard is likely to endanger the safety of air navigation, then the certificate must be refused unless it can be issued with conditions which will ameliorate any risk posed – see r.11.056.
Tribunal’s Findings
Does the applicant meet the Class 2 Medical Standards?
51. As indicated in the respondent’s statement of facts and contentions, it is submitted that the applicant fails to meet the Class 2 Medical Standard on the basis that in mid August 2008, at the age of 71 years, the applicant suffered from a left frontal stroke which was categorised as a small cortical thrombotic stroke. The medical evidence is that he has an atrial septal aneurysm and patent foramen ovale, the presence of which increases the risk of a further stroke by a small amount. The applicant continues to take the medication Clopidogrel for further stroke prevention.
52. The medical evidence also shows that the risk of a recurrent stroke in the applicant, in association with his patent foramen ovale is 2%-3% per annum. When this is added to his risk of hypertension and his age, the overall risk is increased to 3% - 5% per annum. In the Tribunal’s opinion this is an unacceptable risk in the context of aviation medical certification.
53. In the Tribunal’s view, the applicant’s medical history constitutes a clear failure against Item 2.1(b) of the Class 2 Medical Standard.
Item 2.1 of the relevant medical standards
54. In considering whether the applicant fails to meet the standards at Item 2.1 of Table 67.177 on account of his medical history, there are a number of separate matters which need to be considered:
(i)the applicant must suffer a condition as defined in sub-paragraphs (a) – (d) of Item 2.1 of the standard;
(ii)the condition must be ‘safety relevant’; and
(iii)the condition must produce a risk of incapacitation.
Condition
55. In the Tribunal’s opinion, suffering from a left frontal stroke is clearly capable of coming within the notion of a disability or disease (active or latent) (sub-paragraph (b)) and is thus a “condition” within the meaning of Item 2.1.
Safety relevant
56. Similarly, a raised risk of suffering from a stroke in the future is clearly ‘safety relevant’ within the meaning of the definition of that term in r.67.015 because, if the applicant were to suffer a stroke whilst at the controls of an aircraft in flight, it would not only reduce, but would potentially be totally destructive of his capacity to exercise the privileges or perform the duties of his pilots licence.
Risk of incapacitation
57. The Tribunal is satisfied, for the reasons set out below, that the applicant’s medical history of suffering from a left frontal stroke carries with it an increased risk of his suffering a further stroke, and therefore, a risk of incapacitation within the meaning of Item 2.1 of the relevant medical standards.
58. The Tribunal is satisfied that, by reason of his medical history, the applicant fails to meet Item 2.1 of the Class 2 Medical Standards.
Likely to endanger the safety of air navigation
59. As the Tribunal finds that the applicant does not meet the Class 2 Medical Standards on account of his medical history, it must next consider whether it can be satisfied that the extent to which he fails the relevant standard is not likely to endanger the safety of air navigation. In the Tribunal’s view it can not be so satisfied.
Risk Analysis
60. The Tribunal finds that as noted above the medical evidence demonstrates that the applicant has suffered from a left frontal stroke which was categorised as a small cortical thrombotic stroke in mid August 2008.
61. As well as noted earlier, the evidence is that he has an atrial septal aneurysm and patent foramen ovale, the presence of which increases the risk of a further stroke by a small amount.
62. The risk of a recurrent stroke in the applicant, in association with his patent foramen ovale is 2%-3% per annum. However, with the applicant’s added risk of hypertension and his age the medical evidence is his risk of recurrent stroke in the future is 3%-5% per annum.
There is a real, substantial and not remote risk of incapacitation
63. As noted above, the risk of a recurrent stroke in the applicant, in association with his patent foramen ovale is 2%-3% per annum. However, with the applicant’s added risk of hypertension and his age, his risk of recurrent stroke in the future is 3%-5% per annum.
64. As such, the prospect of the applicant suffering a further stroke at the controls of an aircraft in flight in the Tribunal’s view presents as a real and substantial and not a remote or fanciful risk.
65. As was pointed out in cases such as Hall and Mulholland supra, the fact that the risk in percentage terms of the applicant actually having a stroke whilst at the controls may be relatively small, is largely irrelevant - what is to the point is the very real possibility that the applicant remains at greater risk than the rest of the aviator population of suffering from a stroke.
66. Also of relevance in any risk assessment is the nature of the incapacity which might be caused by suffering from a stroke. Such an event would clearly lead to a degree of incapacity which could be totally destructive of the applicant’s ability to control an aircraft in flight. This fact renders intolerable in the Tribunal’s opinion even slight increases in risk above that which exists in the general population.
67. The requirements of section 9A(1) of the CA Act clearly dictate that a suitably cautious approach must be taken to assessing the risks posed to the safety of air navigation by the applicant’s medical history. Keeping this firmly in mind, and for the reasons set out above, the Tribunal cannot be satisfied to the requisite standard, that the applicant’s failure to meet the Class 2 Medical Standard is not likely to endanger the safety of air navigation.
Conditional Certificate
68. Even if the applicant’s relevant medical history gives rise to a real risk that he will endanger the safety of air navigation, a Class 2 Medical Certificate might still be issued under r.67.180 if a suitable condition can be imposed on the Certificate (under r.11.056) to adequately address that risk.
69. In that regard, the Tribunal agrees with the view formed by the respondent that any safety implications arising from the applicant’s medical history could be adequately ameliorated by the imposition of a condition on the applicant’s Medical Certificate which required him to fly with a Safety Pilot. It is this condition which the applicant now seeks to have removed. The Tribunal is not prepared to remove the condition.
Decision
70. For the reasons set out above, and having regard to the Tribunal’s obligation under s.9A(1) of the CA Act to regard the safety of air navigation as the most important consideration, the Tribunal is of the view that the correct and preferable decision is for the Tribunal to affirm the decision under review.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member and Dr J Chaney, Member
Signed:..(sgd) T Freeman............
AssociateDate/s of Hearing 15 & 16 November 2011
Date of Decision 13 December 2011
Representative for the Applicant Self-represented
Representative for the Respondent Ms Carol Swain
Legal BranchCivil Aviation Safety Authority
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