David Barnes and Civil Aviation Safety Authority
[2012] AATA 756
•1 November 2012
[2012] AATA 756
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1219
Re
David Barnes
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Mr Egon Fice, Senior Member
Dr Roslyn Blakley, MemberDate 1 November 2012 Place Melbourne The Tribunal affirms the decisions of the Civil Aviation Safety Authority dated
19 October 2011 and 10 November 2011....[sgd Egon Fice].....................................................................
Mr Egon Fice, Senior Member
AVIATION – Class 2 medical certificate – Class 1 medical certificate – Private Pilot (aeroplane) Licence – application for medical certificates – risk to the safety of air navigation – Type II diabetes mellitus – refusal to undertake further testing
Civil Aviation Regulations 1988 (Cth) reg 5.04
Civil Aviation Safety Regulations 1998 (Cth) regs 11.015, 11.030, 67.010, 67.015, 67.145, 67.150, 67.155, 67.165, 67.175, 67.180, 67.205, 67.220, 67.265
REASONS FOR DECISION
Mr Egon Fice, Senior Member
Dr Roslyn Blakley, Member1 November 2012
Mr David Barnes is the holder of a Private Pilot (aeroplane) Licence (PPL). On 28 October 2010 he was examined by a Designated Aviation Medical Examiner (DAME) for the issue of a Class 2 medical certificate. The medical report provided by the DAME to the Civil Aviation Safety Authority (CASA) stated there were areas of concern which required referral to a specialist and that there were some doubts that Mr Barnes was fit to exercise the privileges of his licence. CASA notified Mr Barnes on 20 December 2010 that he was required to make an appointment with the DAME for further blood tests.
By letter dated 30 June 2011 CASA notified Mr Barnes that it had issued to him a Class 2 medical certificate valid for 12 months from the date of his medical examination. In that letter CASA also stated that when his medical certificate became due for renewal, in addition to the usual renewal medical examination, he was required to provide a number of additional reports. The letter also stated that his medical certificate had been endorsed FOR CASA AUDIT indicating that processing of his new medical certificate by CASA would be delayed pending receipt and review of the reports referred to in the letter. It indicated that if appropriate, his existing medical certificate could be extended for up to
2 months.
It appears that in about December 2010 Mr Barnes wrote a letter to the DAME in which he mentioned applying for a Class 1 medical certificate. This letter was not copied to CASA. Nevertheless, after receiving the copy from the DAME, CASA wrote to Mr Barnes on 12 July 2011 stating that CASA was prepared to reassess his application as a special case having regard to his claim that he applied for a Class 1 medical certificate. CASA explained that Mr Barnes was required to provide an audiometry examination report. CASA stated that Mr Barnes needed to meet the Class 1 standard and that should it issue the medical certificate sought, it would be prepared to issue it for one year from the date of examination.
In an e-mail dated 18 October 2011, after CASA had been informed by Mr Barnes that he had ceased using certain medications, it requested that he provide further information regarding when he ceased using those medications and details of the medications he was currently using. CASA also sought information about Mr Barnes' glycated haemoglobin level (HbA1c) and a recent blood sugar diary after stopping his medication. Mr Barnes is diagnosed with type II diabetes mellitus.
Mr Barnes responded by e-mail on 18 October 2011 stating that he was not required to give CASA any further information until his next medical examination.
In a letter dated 19 October 2011 Dr Pooshan Navathe, a Principal Medical Officer with CASA, wrote to Mr Barnes stating that in the absence of the further medical information requested, CASA could not advance consideration of his case. This was in respect of the Class 1 medical certificate. He considered that application to be closed. Dr Navathe also told Mr Barnes that he currently held a Class 2 medical certificate and that, following his information that he had changed his medication, he was required not to exercise the privileges of his PPL until his condition had stabilised and he had been cleared to return to flying by his DAME or CASA.
On 25 October 2011 Mr Barnes applied to revalidate his medical certificate. He also completed an online medical examination report. On receipt of that application, CASA responded by letter dated 25 October 2011 stating that some issues had been identified as result of his medical examination that required clarification or further information. The information sought was in relation to Mr Barnes' disclosed past history of depression. CASA also wrote to Mr Barnes on 31 October 2011 asking him to provide further information in relation to a risk of ischaemic heart disease. It asked him to refer to his DAME for a determination of his Cardiac Risk Index score (CRI). It also asked Mr Barnes to provide from his cardiologist a report dealing with his current cardiological status; control of cardiovascular disease factors; results of a recent stress test; and an estimate of incapacitation risk.
On 3 November 2011 Mr Barnes sent to CASA an e-mail stating: I will not be doing any further tests. If I do not receive my Class 2 medical within three days I will instruct my Barrister to start action. I would also like to know where my Class 1 medical is, that should have been through by now?
In a letter dated 4 November 2011 Dr Navathe wrote to Mr Barnes stating that he believed if he were issued with a medical certificate at this time, the safety of air navigation may be endangered. That was because he believed Mr Barnes had depression, ischaemic heart disease and diabetes. He said he had already received information about depression and diabetes, but not about ischaemic heart disease. He directed Mr Barnes, pursuant to Reg 67.165 (1) of the Civil Aviation Safety Regulations 1998 (CASR), to submit to an examination by a medical practitioner to assess his CRI; and if his CRI was 15 or more, an examination by a cardiologist to determine his current cardiological status to assess his cardiovascular risk factors and the control of those, including a stress test, and an estimate of his incapacitation risk.
On 10 November 2011 CASA wrote to Mr Barnes referring to a number of his e-mails which it took to mean that he declined to provide the information as directed pursuant to Reg 67.165 (1) of the CASR. CASA then said that it had decided to refuse to issue him with a Class 2 medical certificate and that his application was closed.
On 16 January 2012 Mr Barnes lodged an application with the Tribunal seeking an extension of time for lodging an application for review. Mr Barnes indicated he was seeking a review of two decisions, one made on 19 October 2011 in respect of a Class 1 medical certificate, and the second on 10 November 2011 in respect of a Class 2 medical certificate. CASA did not oppose the application for an extension of time for lodging the application for review. Mr Barnes lodged his application for review with the Tribunal on 30 March 2012.
We should also mention at this stage that despite what Mr Barnes said about refusing to obtain the information sought by CASA, he did provide to CASA the results of his lipids test and CRI score in January 2012. CASA acknowledged receipt of that information in a letter dated 20 January 2012 and noted that his application for renewal of his Class 2 medical certificate had been refused in November 2011. CASA then stated that should he now wish to obtain a medical certificate, he would need to undergo a medical examination by his DAME and also provide an updated report with details of his current medical treatment, a current blood sugar diary and his HbA1c.
The issues which we are required to determine are whether CASA correctly refused to issue to Mr Barnes a Class 1 medical certificate and revalidate his Class 2 medical certificate.
THE ISSUE OF MEDICAL CERTIFICATES GENERALLY
Regulation 5.04 (1) of the Civil Aviation Regulations 1988 (CAR) provides:
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.
Penalty: 50 penalty units.
Regulation 5.04 (3) of the CAR sets out the class of medical certificate appropriate to particular flight crew licences. Insofar as it is relevant to Mr Barnes' case, it provides:
(b) in the case of a commercial pilot (balloon) licence, a private pilot licence, a student pilot licence or a flight radiotelephone licence – the medical certificate is a class 1 or class 2 medical certificate.
Note 1 Class 1 and class 2 medical certificates are issued under Part 67 of CASR.
Note 2 The medical standards for obtaining each class of medical certificate are set out in Part 67 of CASR.
Part 67 of the CASR deals generally with medical matters. Reg 67.145 provides that there are three classes of medical certificates: class 1, class 2 and class 3. The expression relevant medical standard is defined in Reg 67.010 and it means:
(a)for a class 1 medical certificate – medical standard 1; and
(b)for a class 2 medical certificate – medical standard 2; and
(c)for a class 3 medical certificate – medical standard 3.
Regulation 67.150 provides that subject to subregulations (2) – (7), a person who satisfies the criteria in table 67.150 meets medical standard 1.
Regulation 67.155 sets out the criteria for meeting medical standard 2. It provides that, subject to subregulations (2) – (7), a person who satisfies the criteria in table 67.155 meets medical standard 2.
Item 1 in both tables is identical. In table 67.150, it provides:
1.1Has 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 surgical operation
1.2Has no physical conditions or limitations that are safety-relevant
1.3Is not using any over-the-counter or prescribed medication or drug (including medication or a drug used to treat a disease or medical disorder) that causes the person to experience any side-effects likely to affect the person to an extent that it is safety-relevant
Because Mr Barnes has been diagnosed with type II diabetes, there is another item in tables 67.150 and 67.155 which deals with that condition. Respectively, the tables provide:
Alimentary system and metabolic disorders [67.150]
…
1.15 Is not suffering from any safety-relevant metabolic, nutritional or endocrine disorders
1.16 If suffering from diabetes mellitus – the diabetes is satisfactorily controlled without the use of any anti-diabetic drug
Alimentary system and metabolic disorders [67.155]
2.14 Is not suffering from safety-relevant metabolic, nutritional or endocrine disorders
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
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.
APPLICATION FOR CLASS 1 AND CLASS 2 MEDICAL CERTIFICATES
Regulation 67.175 of CASR provides that a person may apply to CASA for the issue of a medical certificate. That Regulation includes a note which states:
Note 1 An application must be in the approved form, include all the information required by these Regulations and be accompanied by every document required by these regulations – see regulation 11.030.
Regulation 11.030 provides:
(1)An application for an authorisation is not taken to have been made unless:
(a)it is made in the manner approved by CASA for that purpose; and
(aa) if CASA has approved a form for the application – it is in the approved form and includes all of the information required by the form; and
(b)it includes all the information required by these Regulations; and
(c)it is accompanied by every document required by these Regulations; and
(d)if a fee is payable for the application – that fee has been paid.
…
(2)For paragraph (1)(aa)), CASA may, in writing, approve a form for an application for an authorisation.
The word authorisation is a defined term (Reg 11.015) and it includes:
(c) a certificate capable of being granted to a person under these Regulations.
It should be readily apparent that for an application to have been made for the issue of a medical certificate, it must comply with the requirements of Regs 67.175 and 11.030. If it does not, it is not taken to have been made. As is evident from the medical application forms and application forms for the revalidation of a medical certificate which is current or has lapsed for less than five years (form R) in evidence, CASA has approved forms for the purposes of applications for medical certificates. The form is provided to the DAME who completes it and returns it to CASA.
Application for Class 1 medical certificate
It is difficult for us to understand why Mr Barnes requested that CASA issue him with a Class 1 medical certificate. In September 2009, Mr Barnes only had 307 total flying hours. He was asked this question in the course of his cross-examination and he responded by saying that he wanted to fly commercially in the future. When asked if he had prospects of commercial employment, he answered: yes. He indicated that he had an offer from a Mr Tucker. We have no evidence other than Mr Barnes' response to these questions in cross-examination regarding the reason why he needed a Class 1 medical certificate.
It is also difficult for us to understand the purpose of such an application when the criteria for being granted a Class 1 medical certificate are significantly more stringent than those for the issue of a Class 2 certificate. This is particularly so where the applicant has been diagnosed with diabetes mellitus. Mr Barnes does not hold an air transport pilot licence or a commercial pilot licence. He does not require a Class 1 medical certificate to perform piloting activities as a private pilot.
In an attempt to better understand the reasons for Mr Barnes' dispute with CASA over the issue of a Class 1 medical certificate, we need to briefly refer back to 2009 when Mr Barnes applied to revalidate his Class 2 medical certificate.
He was examined by Dr Johnston, a DAME, on 18 September 2009. Dr Johnston completed an examination report which was signed by Mr Barnes on 18 September 2009. At section 3 of the questionnaire, Dr Johnston marked that the purpose of the examination was for a Standard 2 private pilot. Medical Standard 2 of course is the standard that must be met for a pilot seeking a Class 2 medical certificate. In that report, Dr Johnston recorded that in the last two years Mr Barnes had been admitted to hospital or suffered from a medical condition which may affect his ability to exercise the privileges of his licence. He recorded Mr Barnes as taking medically prescribed drugs for longer than two consecutive weeks. His weight was recorded at 133 kg. That placed his Body Mass Index (BMI) outside the range of 17.0 – 35.0. Dr Johnston also recorded that Mr Barnes was a diabetic.
Although required to state the level of glycosylated haemoglobin, Dr Johnston did not do so in that report. He also answered yes to the questions about whether he considered there were any areas of concern in the applicant's assessment which required specialist referral or counselling and whether he had any doubts that the applicant was fit to exercise the privileges of his licence.
Dr Johnston set out the medication at that time being used by Mr Barnes which included Diabex, Tritace, Aspirin and Zoloft. He also noted that Mr Barnes was to see his endocrinologist, Dr Anthony Hunter, shortly. On an additional page 6, following the signatures of Mr Barnes and Dr Johnston, there is a section for use by a consultant cardiologist. On the additional page, Dr David M Coles, the cardiologist, indicated that Mr Barnes' ECG was within normal limits. He signed the bottom of that page and dated it 20 October 2009.
Also attached to Mr Barnes' application of 18 September 2009 were the results of the number of histopathology tests requested by Dr Madeley, Mr Barnes' usual medical practitioner. The test reports noted:
(a)his microalbumin concentration was elevated but the Albumin/creatinine Ratio (ACR) was within the target for diabetes – suggested continued annual review;
(b)the following recordings of HbA1c:
(i)10/09/07 – 9.0;
(ii)18/01/08 – 7.3;
(iii)01/04/08 – 7.5;
(iv)08/07/08 – 8.9;
(v)07/08/09 – 8.0; and
(c)LDL – cholesterol exceeding the target for high risk patients – diabetes noted.
In a letter dated 15 October 2009 Dr T S Sham, a medical officer with CASA, wrote to Mr Barnes stating that in order to finalise his medical assessment, further information was required regarding his diabetes and in particular his latest HbA1c of 8.0, indicating sub-optimal control. Dr Sham stated that CASA required a report of review by his endocrinologist about his diabetes including HbA1c at a level indicative of adequate control. He also stated that this was a request pursuant to Reg 67.165 of the CASR. That Regulation provides:
(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 with a 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.
(3)For paragraph (1)(b), CASA may nominate a particular person who is expert in the safe performance of the activity concerned to carry out the examination.
On 13 January 2010 CASA received from Dr Hunter a brief handwritten report dated
7 January 2010 in response to Dr Sham's request. He recorded a HbA1c of 8.2 on
21 December 2009. Dr Hunter said:
David's HbA1c is slightly elevated but his diabetes is stable and he has never had any symptoms of hypoglycaemia. Tablet disp -see over. He is not on insulin. I consider he is fit to fly.
Tabs. 7/1/10.
Actos [a hypoglycaemic agent – pioglitazone hydrochloride] 30 mg one day.
Metformin [a hypoglycaemic agent – metformin hydrochloride] 500 mg
Diamicron 60 mg [a hypoglycaemic agent whose use is described in MIMS issue number 5, 2003 as: Maturity onset diabetes mellitus not controlled by diet alone]
On 11 February 2010 Dr Sham wrote to Mr Barnes acknowledging receipt of Dr Hunter's updated report. He noted that Dr Hunter recorded his latest HbA1c remained elevated in the sub-optimal control range (8.2). He explained that for a certificate to issue, his diabetes had to be adequately controlled. He referred to the indication of the range of values, extracted from the DAME Handbook which he attached for Mr Barnes' information. He said that meanwhile, the assessment of his medical fitness for aviation licensing was delayed.
It is of some significance to note what is stated in the DAME Handbook regarding the medical certification of persons with diabetes mellitus. The Handbook states, at page 2.4 – 8 and 2.4 – 9:
1.Persons with diabetes mellitus controlled by diet alone may receive medical certification limited to 12 months duration for Class 1, 2 or 3 provided they meet the following criteria:
·Evidence of stable blood glucose control:
o Glycosylated Haemoglobin (HbA1c) taken within one month of assessment <7.5%.
o Satisfactory reports as detailed under Other Investigations.
·Absence of complications that could result in sudden or subtle incapacitation when exercising the privileges of a licence.
…
3.Persons with diabetes mellitus controlled by diet and oral drug(s) such as sulphonylureas, benzoic acid derivatives, glitazones and other drugs may receive medical certification limited to 12 months duration, on a case by case basis, with restrictions and limitations reflecting the level of control and identified complications. CASA will require review with investigations including those detailed under Other Investigations. Prior to their (re-) certification, in addition to those reports that follow, CASA may require other reports specific to their situations:
·No unacceptable side-effects from drugs
·Evidence of stable blood glucose control
o No episode of symptomatic hypoglycaemia during the preceding 12 months
o Glycosolated Haemoglobin (HbA1c), taken within preceding month <7.5%
o Satisfactory reports as detailed in the previous section, Other Investigations.
·Absence of neurological, cardiovascular, ophthalmological, renal or other complications of diabetes mellitus that could result in sudden or unpredictable incapacitation when exercising the privileges of a licence.
On 12 March 2010 Mr Barnes obtained a later medical report from Dr Madeley who said he demonstrated a marked improvement in his diabetes control with his HbA1c at 5.5%. On the same day Mr Barnes wrote to CASA stating that since December of the previous year, he had been on a stringent low-fat, low GI diet and exercise program. He also said that his endocrinologist had slightly increased his medication.
In a responding letter dated 24 March 2010 CASA noted that his last medical examination recorded that he was taking Sertraline. This drug is commonly marketed as Zoloft (Sertraline hydrochloride). Its use is for major depression, panic disorder, social phobia (social anxiety disorder) in adults. CASA requested that Mr Barnes supply a report from his treating doctor about the condition necessitating this treatment including:
·onset of condition
·symptoms, including any of the suicidal ideation, psychosis, mania or anxiety
·details of any hospital assessment
·treatment, response to treatment and side-effects
·DSM IV diagnosis
·current clinical status
·ongoing management plan
·prognosis
Dr Madeley responded to CASA's letter of 24 March 2010 on 31 March 2010 and said that Mr Barnes was commenced on Sertraline on 12 January 2000 to manage his depressed mood and tearfulness at that time. He said there was no evidence of suicidal ideation, psychosis, mania or anxiety. He did not require specialist or hospital management for his depressed mood. Dr Madeley said he chose this drug as it was favoured by the obesity specialist (Dr Sharon Marks) to whom he referred Mr Barnes, as it assisted in the management of his obesity. Dr Madeley said that Mr Barnes' mood improved on this drug and it was continued for a combination of managing his mood and obesity. He explained that Mr Barnes underwent deterioration in his mood associated with the break-up of his marriage approximately 18 months previously. He said Mr Barnes had moved on well and presented with normal affect over the last few months. He also indicated that he was planning to wean Mr Barnes off Sertraline in the coming month. He was of the view that Mr Barnes had an excellent prognosis. He also recorded that his current weight was 141 kg.
It needs to be said that on its face, it appears Mr Barnes failed to comply with the requirements of Reg 67.265 (3) of the CASR regarding disclosure of his depression. That regulation provides:
(4)If:
(a)the holder of a class 2 or class 3 medical certificate and a licence:
(i) knows that he or she has a medically significant conditions; and
(ii) is reckless as to whether the condition has been disclosed to CASA; and
(b)the condition continues for longer than 30 days; and
(c)the condition has the result that his or her ability to do an act authorised by the licence is impaired;
he or she must tell CASA or a DAME about the condition as soon as practicable after the end of 30 days.
Penalty: 50 penalty units.
CASA again wrote to Mr Barnes on 7 April 2010 and asked Mr Barnes to provide a copy of his most recent annual ophthalmological assessment and, if he had not obtained a recent cardiovascular assessment, an assessment by his DAME on the CASA cardiovascular risk profile because of the risk of ischaemic heart disease in persons with diabetes mellitus.
Mr Barnes underwent a cardiovascular assessment on 21 April 2010 which included a stress test known as the Bruce Protocol. Dr Rudi Hoole reported on Mr Barnes' test. He reported there were no arrhythmias present; that overall it was a negative stress test for ischaemic heart disease and in his opinion, there was no indication for a Sestamibi stress test due to lack of symptoms. Dr Hoole noted that the Bruce Protocol was discontinued after 5 minutes when he reached stage 2 due to breathlessness and the inability of Mr Barnes to proceed further. He said that nevertheless Mr Barnes had reached the required heart rate. He also noted that Mr Barnes' weight at that time was 141 kg.
On 6 May 2010 CASA wrote to Mr Barnes informing him that a Class 2 medical certificate valid for 12 months from the date of his medical examination had been issued. The letter also stated that if there was any change to his condition or treatment, he was required to ground himself until clear to fly by CASA or his DAME. CASA also informed Mr Barnes that his medical certificate had been endorsed RENEW BY CASA. As the letter explained, this was to alert his DAME that he was not to revalidate Mr Barnes' medical certificate at the time he presented for his routine medical certificate renewal examination.
CASA's letter of 6 May 2010 prompted Mr Barnes to send an e-mail complaining about the Medical Officer who dealt with his assessment and the fact that his certificate was valid for only 12 months, rather than two years. Mr Barnes also said:
I would like to formally request that another Doctor review the communications between myself and Dr Drane. I believe he has been extremely overzealous in his evaluation of my Medical and the subsequent reduction to only one year due to his inexperience. I have correspondence from him stating that he needed a small piece of information to finalise my Medical after which he then demanded another test. After I complied with his request and had the other test I then discovered that he has changed the requirements of my Medical in direct opposition to the requirements set by my original Dr Sham.
With respect to Mr Barnes, as the history of the correspondence between him and CASA discloses, that was not the case. Following Mr Barnes' medical examination by Dr Johnston, and particularly the concerns he expressed in Section 6 of the medical report, CASA could not be satisfied that Mr Barnes' medical condition would result in him not endangering the safety of air navigation without further testing. That is why it gave directions pursuant to Reg 67.165 of the CASR. Furthermore, the request made by Dr Drane was simply in accordance with what is set out in the DAME Handbook when dealing with the medical certification of persons with diabetes mellitus. In addition to that, Dr Drane, having observed that Mr Barnes had been treated with Sertraline for depression, which he had not disclosed to CASA, required further information about the condition. The further request for a recent ophthalmological assessment and cardiovascular assessment was simply in accordance with the DAME Handbook.
Furthermore, the issue of the medical certificate for 12 months rather than two years was a lawful exercise of CASA's powers under the CASR. Regulation 67.205 (3)(b)(ii) provides that a Class 2 medical certificate issued to a person 40 years old or older may remain in force for a period not exceeding two years. Clearly, that sets the maximum period of time for which a Class 2 medical certificate may remain in force. There is nothing in the CASR which prevents CASA from reducing that maximum period where, in its discretion, it believes is necessary. In fact, the limit of 12 months for applicants with diabetes is the policy adopted by CASA and is set out in the DAME Handbook. In our opinion, Mr Barnes' criticism of CASA at this stage of his medical assessment was unwarranted. Nevertheless, it resulted in a series of e-mails between CASA and Mr Barnes, the details of which it is unnecessary to repeat.
Mr Barnes was examined again by Dr Johnston on 28 October 2010 for revalidation of his Class 2 medical certificate, his previous certificate having ceased to be in force some 12 months following his medical examination on 18 September 2009. On the examination report, Dr Johnston noted that the examination was for Standard 2, Private Pilot. On the examination report in answer to a question whether Mr Barnes had taken any medically prescribed drugs for longer than two consecutive weeks, he marked the answer: yes. He recorded the drugs as Diabex 500 mg (a hypoglycaemic agent), Tritace 10 mg (antihypertensive agent), Diamicron MR 60 mg (a hypoglycaemic agent) and Zoloft 100 mg. Mr Barnes' HbA1c levels were recorded on 10 March 2010 at 5.5% and on 16 September 2010 at 5.3%. His weight on examination was 133 kg.
In a report dated 11 October 2010, Dr Hunter said Mr Barnes had been taking Diabex 500 mg, Actos 30 mg and Glyade MR 30 mg each day. He said those medications produced good control and he had not had any symptoms suggestive of hypoglycaemia. Dr Hunter also included in his report records of Mr Barnes' blood glucose levels between March and August 2010. They are remarkably consistent, being around 4.5% with only a single reading at 7.9%.
Dr Madeley also provided a letter dated 30 June 2010 regarding Mr Barnes' treatment of depression. Curiously, this letter is in identical terms to the letter he wrote on 31 March 2010 except for the last paragraph in each letter. In this letter, he indicated that Mr Barnes would like to continue the medication for depression, which he referred to as Sertraline. We note that Dr Johnston recorded in his examination report that Mr Barnes was using Zoloft.
Dr Drane wrote to Mr Barnes on 20 December 2010 indicating that his medical report had been received but that he was required to make an appointment with Dr Johnston for further blood tests. Mr Barnes again made his displeasure known to CASA by sending an e-mail to Dr Navathe on 17 January 2011. In a responding e-mail dated 18 January 2011 Dr Navathe explained that CASA had received Mr Barnes' application for revalidation of his medical certificate on 16 December 2010. He explained that those tests were further to those which had already been provided. In a subsequent e-mail dated 25 January 2011 Dr Navathe explained that the extra testing was requested because of the elevated BSL (blood sugar level) reading that was carried out on the day of the examination.
In fact the reason for this further testing became apparent in the course of Dr Johnston's cross-examination. Among the file notes kept by CASA regarding telephone conversations had with various parties, is a conversation with Dr Johnston on
20 December 2012. The file note states: Does not think he is safe… Poor insight into his lack of safety… Not taking it on board. I see his spot glucose was 16.8 mmol which is not consistent with his diary or his HbA1c of 5.3%. DAME did not believe him and hence spot test. Dr Johnson was asked in cross-examination whether he had concerns about the recorded blood tests conducted by Mr Barnes, he answered: yes, concerned that the results are not his.
On 21 February 2011 Mr Barnes again complained to Dr Navathe stating that he had not given CASA permission to contact his DAME prior to him having a consultation with Dr Johnston. However, as Dr Navathe pointed out to him, the declaration on the DAME report, which he signed, plainly states: I acknowledge that medical reports required by CASA for certification may be passed to medical practitioners or specialists external to CASA and/or within CASA for their comment and review. With respect to Mr Barnes, this complaint is also unfounded. There have not been any obvious breaches of privacy. Mr Barnes also lodged a complaint against Dr Johnston with the Australian Health Practitioner Regulation Agency (AHPRA) on 17 January 2011. That complaint was also dismissed.
On 22 June 2011 Dr Navathe wrote to Mr Barnes indicating he had received a letter from Dr Johnston enclosing some biochemistry results. He referred to Mr Barnes' letter of
25 January 2011 where Mr Barnes said that any information received from Dr Johnston should be disregarded as he was seeking to have a new DAME deal with this matter. Dr Navathe was uncertain as to whether he should have regard to the information provided by Dr Johnston. Dr Navathe also pointed out that in the event that a medical certificate was issued, it would only be valid until 28 October 2011 being 12 months from the date of his medical examination. He suggested a fresh medical examination so that the clock could be reset. Mr Barnes responded by letter dated 27 June 2011. Finally, after some further discussion between Mr Barnes and Dr Navathe, CASA informed Mr Barnes on
30 June 2011 that a Class 2 medical certificate valid for 12 months from the date of his medical examination had been issued.
Clearly disappointed with CASA's decision to issue his Class 2 medical certificate for a period of 12 months, Mr Barnes responded to CASA in an e-mail dated 6 July 2011. He said: I also applied for a Class 1 two year medical which clearly this has not been processed. I never applied for a B grade (sic) medical.
From the evidence before us, this is the first mention Mr Barnes made of an application for a Class 1 medical certificate. Although Mr Barnes directed our attention to a letter dated 4 October 2011 from CASA in which it is stated that a Class 1 and 2 medical certificate valid for 12 months had been issued, in his oral evidence Dr Navathe pointed out that this was a draft letter which had never been sent to Mr Barnes and had not been signed by Dr Drane who was said to be the signatory the bottom of the letter. In fact, Dr Navathe responded in an e-mail dated 7 July 2011 in which he said he had re-examined Mr Barnes' application and it indicated an application for a Class 2 medical certificate (sometimes referred to by Mr Barnes as a B grade medical). In our opinion, that is plainly correct. We have already referred to what was marked on Mr Barnes' medical report indicating the examination was for a Standard 2 Private Pilot certificate.
In the course of the hearing Mr Barnes also asked that the Tribunal examine the payment advice regarding the medical certificates for which he had applied in October 2011, suggesting that would indicate his application for a Class 1 medical certificate. We received a copy of that payment advice (dated 25 October 2011) on 23 July 2012 and in the section dealing with fees for medical certificates, the only entry is against the issue of a Class 2 medical certificate. The processing and consideration fee is said to be $75. Nothing is marked against the issue of a Class 1 medical certificate. Mr Barnes' recollection of that is clearly incorrect.
Despite Mr Barnes being sent a copy of the medical questionnaire and examination form indicating an application for a Standard 2 Private Pilot certificate, he responded by stating in an e-mail dated 7 July 2011: This is obviously a misunderstanding on your part as I have never seen the document you attached before nor did I construct it. Back in January I sent a letter to Dr Drane and he should have shown you the copy of the letter that I wrote to Dr Johnston that I sent to him with a copy of the receipt for the day I had my appointment with Dr Johnston and in that letter I clearly state that I was going for a Class 1 medical. So please process it.
The first thing we must say about this is that the medical questionnaire and examination form was signed by Mr Barnes and dated 28 October 2010. Furthermore, in cross-examination Dr Johnston was asked whether he enquired of Mr Barnes as to the certificate he was seeking and he answered: yes. When asked whether he marked the Standard 2 from the information given to him by Mr Barnes, Dr Johnston said: yes. This is despite the fact that in an e-mail to CASA dated 7 July 2011 Mr Barnes said that in January (of that year) he sent Dr Johnston a letter in which he stated he was seeking a Class 1 medical certificate. He also said that he had sent the letter to Dr Drane with a copy of the receipt for the day of his appointment with Dr Johnston and said the letter clearly stated he was applying for Class 1 medical certificate. However, despite the statements made by Mr Barnes, we did not have a copy of either the letter he sent to Dr Johnston or the letter to Dr Drane enclosing Dr Johnston's letter. Although Mr Barnes put numerous other documents in evidence as he had received documents under the Freedom of Information Act, those letters were not among them.
In an e-mail dated 12 July 2011 Dr Navathe responded to Mr Barnes' claims that he had applied for a Class 1 medical certificate. Dr Navathe referred to the letter Mr Barnes said he wrote to his DAME dated December 2010 which he said mentioned a Class 1 medical certificate. He also explained that the letter was never copied to CASA and it received a copy from Dr Johnston in April (presumably 2011). Dr Navathe acknowledged that mistakes can be made by the applicant or DAME and therefore he indicated that CASA was prepared to reassess his application as a special case. He also said that to do so, Mr Barnes needed to provide to CASA an audiometry examination report. He said if that were done, he would arrange for CASA to reassess his medical examination but noted that if a Class 1 certificate was issued, it would be for a period of one year from the date of the examination which was in October 2010.
It is clear that Mr Barnes either misunderstood what Dr Navathe said in his e-mail of
12 July 2011 or he chose to interpret it differently. In a letter which he wrote on
8 August 2011 to the Industry Complaints Commission, Mr Barnes said: Considering Dr Pooshan has offered to let me have a Class 1 medical now if I get a hearing test if he then refuses to issue a two year Class 2 I have a case. On its face, it appears that Mr Barnes' application for a Class 1 medical certificate was made for reasons other than the fact that he wanted to be issued that medical certificate. Through some form of perverse reasoning, Mr Barnes appears to have believed that if he was granted a Class 1 medical certificate, CASA would have been forced into a position where it must grant him a Class 2 medical certificate for two years. It is perverse because a private pilot may exercise the rights of his or her licence whether they hold a Class 1 or Class 2 medical certificate. Be that as it may, Mr Barnes provided CASA with an audiometry report which appears to have been completed on 20 September 2011.
In an e-mail dated 30 September 2011 Dr Navathe informed Mr Barnes that his hearing test had been received and placed on file. He then said that because no application had been lodged with CASA for the issue of a Class 1 medical certificate, no action had been taken regarding that report. In an e-mail dated 1 October 2011 Mr Barnes said that Dr Navathe's response was unacceptable given that he had agreed to review Mr Barnes' claim for a Class 1 medical certificate as a special case. In a response dated 4 October 2011 Dr Navathe explained that in his e-mail of 12 July 2011, he asked Mr Barnes to confirm that he sought a Class 1 medical certificate. He did not receive a response. Dr Navathe said that he would treat Mr Barnes' e-mail of 30 September 2011 as confirmation that he had applied for a Class 1 medical certificate and pass it on for action.
In a letter dated 10 October 2011 Dr Hunter again reported on Mr Barnes' condition stating that he was seen in September for an assessment regarding his diabetes. He said that in the previous 12 months, Mr Barnes had again reduced his weight by about 10 kg to 125 kg. He said that Mr Barnes' regular blood glucose tests had been between 4.0 and 6.0 mmol per litre. He said these results were consistent with his recent HbA1c level 5.5%. He said Mr Barnes indicated excellent blood glucose control. Dr Hunter also reported that Mr Barnes continued to take Metaformin, Actos and Glyade although he had now instructed him to cease his Actos.
On 12 October 2011 Dr Navathe responded to Mr Barnes after he had lodged yet another complaint with CASA, writing to Dr Jonathan Aleck. He explained that because Mr Barnes was using sulphonylureas and pioglitazone drugs, he was at a higher risk with respect to hypoglycaemia and that his case needed to be reviewed in detail. Among a series of further complaints lodged by Mr Barnes, on 17 October 2011 he notified Dr Aleck that he was no longer taking the medication referred to by Dr Hunter. That caused Dr Navathe to send to Mr Barnes a further letter asking him questions about when he ceased taking those drugs and which drugs he was using at the present time, including their dosage. He also requested HbA1c information since stopping his medication and a recent blood sugar diary. Mr Barnes responded by stating he was not required to provide any further information until his next medical. In response to that letter, Dr Navathe wrote to Mr Barnes on 19 October 2011 stating: You have declined to provide that information. In the absence of the required information, CASA cannot advance its consideration of your case. That process, therefore has been closed. We understand that statement to indicate CASA had refused to grant Mr Barnes a Class 1 medical certificate as the letter went on to say that he currently held a Class 2 medical certificate.
In our opinion, CASA was correct to refuse to grant to Mr Barnes a Class 1 medical certificate. Despite Dr Navathe's statements about treating Mr Barnes' claim for a Class 1 medical certificate as a special case, it appears to us that the provisions set out in Reg 67.175 and Reg 11.030 of CASR require the application to be made in an approved form. Mr Barnes did not do so. On that basis alone, it is our view that CASA could not issue Mr Barnes with the Class 1 medical certificate.
In any event, CASA had issued lawful directions to Mr Barnes pursuant to Reg 67.165 of CASR seeking further examinations. Mr Barnes expressly refused to undergo further testing. In those circumstances, CASA is required to refuse a medical certificate because it cannot be satisfied that the applicant meets the relevant medical standard therefore satisfying Reg 67.180 (2)(e). This is set out in Reg 67.180 (7) which provides:
CASA must not issue a medical certificate to an applicant if it is satisfied that the applicant:
(a)…
(b)does not satisfy the requirements of this regulation; or
(c)….
Even if we are wrong about that, the evidence was that Mr Barnes continued to use anti-diabetic drugs. On that basis, he could not satisfy the criteria for medical standard 1 and in particular item 1.16 of the table at Reg 67.150.
Application for Class 2 medical certificate
The history of events which we have recited in the course of dealing with Mr Barnes' Class 1 medical certificate application are of course relevant to this application. We do not repeat those matters but simply proceed to analyse what happened after his Class 1 medical certificate was refused.
Mr Barnes' Class 2 medical certificate was revalidated for a period of two months by Dr Johnston on 25 October 2011. That is in accordance with Reg 67.220 (4) of the CASR.
On 31 October 2011 Dr Navathe wrote to Mr Barnes requesting his current cardiological status; control of cardiovascular risk factors; result of recent stress tests; and an estimate of incapacitation risk. In an e-mail dated 3 November 2011 Mr Barnes responded by saying: I am not prepared to continue on with this administrative game. I will not be doing any further tests. If I do not receive my Class 2 medical within three days I will instruct my Barrister to start action. I would also like to know where my Class 1 medical is, that should have been through by now?
As a result of the above letter, CASA notified Mr Barnes on 10 November 2011 that it had decided to refuse to issue him with a medical certificate and that his application had been closed. That refusal of course must refer to Mr Barnes' Class 2 medical certificate given that CASA had previously notified him that it would not be proceeding to assess his Class 1 application.
Despite the above letter, Mr Barnes obtained a letter from Dr Madeley dated
23 November 2011 who stated that Mr Barnes had never been diagnosed with ischaemic heart disease and though he had previously been treated for depression, that had resolved and he was no longer on any treatment for the condition. Mr Barnes also appears to have provided the results of a lipid studies which noted that his LDL cholesterol and triglyceride exceeded the target for high risk patients. It also appears that Mr Barnes' CRS (CRI) score was faxed to Dr Navathe on 16 December 2011 indicating a score of 11.
On 20 January 2012 CASA wrote to Mr Barnes acknowledging receipt of his lipids test and his CRI score. It repeated what had been said in its letter of 10 November 2011 that his application for a medical certificate had been refused. CASA stated that should he wish to obtain a medical certificate, he would need to undergo a medical examination by DAME and provide an updated report indicating his current treatment, a current blood sugar diary and his HbA1c readings.
In our opinion, CASA was correct to refuse to renew Mr Barnes' Class 2 medical certificate in November 2011. Mr Barnes had not complied with requests for further examinations which were requested because he had been diagnosed with type II diabetes mellitus. His attempt to provide further information occurred after CASA's refusal and therefore it could not be taken into consideration. The only course left open to Mr Barnes was to make a fresh application for a Class 2 medical certificate.
CONCLUSION
Mr Barnes claimed that he had made an application for a Class 1 medical certificate after he had applied for a Class 2 certificate renewal. He was experiencing some difficulty in providing the information CASA sought to enable it to satisfy itself that his diabetes condition did not pose a risk to the safety of air navigation. Furthermore, Mr Barnes was dissatisfied with the fact that CASA was only prepared to issue a medical certificate for a period of 12 months. Mr Barnes was demanding that it be issued for a two year period.
Although CASA agreed to deal with his request for a Class 1 medical certificate as a special case, we find that such a course of action is outside the authority granted to CASA to issue medical certificates. Applications for a medical certificate must be made in accordance with the approved form and in the manner approved by CASA for that purpose. In any event, because Mr Barnes continued to use anti-diabetic medication at the time of his purported application, he could not, in any event, meet the medical standard for the issue of a Class 1 medical certificate. Furthermore, Mr Barnes refused to undertake further testing even though directed to do so in accordance with the CASR. Therefore, we have found that CASA's decision to refuse to issue Mr Barnes with a Class 1 medical certificate was correct.
It appears that Mr Barnes' main complaint about the reissue of his Class 2 medical certificate was the fact that CASA refused to issue that certificate for a period of two years. Rather, in accordance with its policy and in accordance with the DAME Handbook, CASA issued that certificate for a maximum period of 12 months. In addition to that, Mr Barnes complained about the fact that CASA had requested further testing which he considered to be unnecessary. Regardless of his opinion, CASA is authorised under the CASR to seek further testing where it deems that to be necessary in the interests of aviation safety. Given the possible medical problems which arise out of diabetes mellitus, we find that CASA acted correctly in seeking further testing. When Mr Barnes declined to have further testing undertaken, CASA, correctly in our opinion, refused to reissue his Class 2 medical certificate. The fact that Mr Barnes subsequently provided further medical reports after CASA had refused the issue of a certificate is of no assistance to Mr Barnes. At that time, his 12 month certificate had already been extended for a further two month period and it did not appear that Mr Barnes intended to comply with CASA's request.
We find that CASA's decision to refuse to issue a Class 1 medical certificate to Mr Barnes on 19 October 2011 was the correct decision. We also find that CASA's decision made on 10 November 2011 to refuse to issue Mr Barnes with a Class 2 medical certificate was correct. We affirm those decisions.
I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Senior Member
Dr Roslyn Blakley, Member....[sgd]....................................................................
Associate
Dated 1 November 2012
Date of hearing
23 July 2012
Advocate for the Applicant
Ms D Logue
Advocate for the Respondent
Mr A Carter
Solicitors for the Respondent
Civil Aviation Safety Authority
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