DIXON and CIVIL AVIATION SAFETY AUTHORITY
[2011] AATA 332
•18 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 332
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0703
GENERAL ADMINISTRATIVE DIVISION ) Re KEVIN DIXON Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Senior Member A K Britton and Dr I Alexander Date18 May 2011
PlaceSydney
Decision The decision under review is set aside and in substitution of that decision the following decision is made:
That Mr Dixon be issued with a Class 2 Medical Certificate, subject to the following conditions:
That he provides CASA with satisfactory evidence that he:
(i) Has not used Ritalin for a continuous period of at least three months within 12 months of the date of this decision; and
(ii) Has been certified by a suitably qualified practitioner, that he does not suffer from a “safety relevant condition”, following an assessment undertaken after he has not used Ritalin for at least three months; and
(ii) Continues to meet all other relevant criteria listed in Table 67.150 of the Civil Aviation Safety Regulations 1998 (Cth).........................[sgd]......................
Senior Member A K Britton
CATCHWORDS
CIVIL AVIATION – civil aviation authorisation - private pilot licence – medical certificate 2 – medical standard 2 - safety relevant condition – ADHD – psychostimulant drug – Ritalin – safety of air navigation – conditional certification
LEGISLATION
Civil Aviation Act 1988 (Cth) - ss 3, 9A(1), 20AB
Civil Aviation Regulations 1988 (Cth) – subregs 5.04(1), 5.04(3)
Civil Aviation Safety Regulations 1998 (Cth) – pt 67, regs 67.010, 67.015, 67.155, 67.180, 67.195
CASES
Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56
Re Window and Civil Aviation Safety Authority (1999) 56 ALD 316; [1999] AATA 525
Re Hall and Civil Aviation Safety Authority [2004] AATA 21
Re Mulholland and Civil Aviation Safety Authority [2007] AATA 1952
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
OTHER INSTRUMENTS
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)
Aeromedical Management Protocol in Attention Deficit Hyperactivity Disorder (ADHD)
REASONS FOR DECISION
Senior Member A K Britton 1. The applicant, Mr Kevin Dixon, is 63 years old. He has been flying aircraft for over 28 years and has close to 2000 hours of flying experience. His flying record is unblemished.
2. In January 2010 the Civil Aviation Safety Authority (CASA) refused to issue Mr Dixon with a medical certificate under the Civil Aviation Regulations 1988 (Cth) (the Regulations) on the grounds that he did not meet the relevant medical standards because he had been diagnosed as suffering from Attention-Deficit Hyperactivity Disorder (ADHD) and was using Ritalin, a psychostimulant drug. As a consequence of that decision, Mr Dixon cannot hold a private pilot’s licence and therefore it would be an offence for him to “perform any duty that is essential to the operation of an Australian aircraft during flight time”: s 20AB of the Civil Aviation Act 1988 (Cth) (the Act).
3. Mr Dixon has applied to the Tribunal for review of the decision by CASA to refuse to issue him a medical certificate. He asserts that while he suffers from ADHD, it is not a “safety relevant condition” and furthermore his use of Ritalin does not cause him to suffer any “safety-relevant” side effects.
4. CASA opposes Mr Dixon’s application and maintains that Mr Dixon fails to meet the relevant medical standard.
Statutory framework
5. Section 9A(1) of the Act requires that CASA (and the Tribunal acting as substitute decision-maker) give primacy to safety when exercising any of its powers and functions under the Act and Regulations.
6. For safety reasons, flight crew are required to hold proper authorities to carry out their duties, including relevant medical certification. Subregulation 5.04(1) of the Regulations 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. Subregulation 5.04(3) of the Regulations provides that, in relation to a private pilot licence, the appropriate medical certificate is a Class 2 medical certificate.
7. Sub-section 20AB(1) of the 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 permits the performance of that duty. The term “civil aviation authorisation” is defined to include, a certificate issued under the Regulations: s 3 of the Act.
8. The issuing of medical certificates is governed by pt 67 of the Civil Aviation Safety Regulations 1998 (Cth) (the Safety Regulations). Regulation 67.180 provides for the issuing of medical certificates. Regulation 67.195 allows CASA 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".
9. Regulation 67.180 of the Safety Regulations prevents CASA 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. In some circumstances conditions may be imposed on a medical certificate that enable CASA to be satisfied that a failure to meet the relevant medical standard is not likely to endanger the safety of air navigation: reg 67.195.
10. Regulation 67.010(1) of the Safety Regulations defines the relevant medical standard for a class 2 medical certificate as medical standard 2. Medical standard 2 is itself defined to mean the standard set out in table 67.155 of the Safety Regulations (the Table).
11. The Table is concerned with “abnormalities, disabilities and functional capacity” of flight crew. For a Class 2 medical certificate to be issued, an applicant must demonstrate that they:
·Have “no safety-relevant condition”, namely an abnormality, disability or disease (either active or latent), injury or sequela of an accident or surgical operation, “that produces any functional incapacity or risk of incapacitation”: the Table, item 2.1
·Are not using any medication that causes safety-relevant side effects in that person: the Table, item 2.3
·Have “no established history or clinical diagnosis” of psychosis, significant personality disorder or significant mental abnormality or neurosis “to an extent that [the condition] is safety relevant”: the Table, item 2.4
12. 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 (in this case, Mr Dixon’s pilot's licence): reg 67.015 of the Safety Regulations.
Mr Dixon’s history and diagnosis
13. The history given by Mr Dixon is not greatly contentious. In mid-2005 he was diagnosed by psychiatrist, Dr Keith Chee, as suffering from a mild form of ADHD. He remains under the care of Dr Chee and sees him about every three months. On Dr Chee’s account, the major symptoms of Mr Dixon’s condition were difficulty on starting and applying himself to tasks that he found mundane and tedious, disorganisation and distractibility, particularly in a work place context. Mr Dixon has been employed as a senior executive in an energy exploration company since 2006.
14. Shortly after his initial diagnosis, Mr Dixon was commenced on Ritalin. He has continued to use Ritalin from that time, aside from occasional short periods in which he did not use it at all. His current maximum dose is 30mg. He usually only takes 20mg per day. This is consumed in two doses of 10mg each, one in the morning and one in the evening. He occasionally takes a third dose during the afternoon, if required to undertake particularly demanding tasks, such as providing a briefing to his Board. Mr Dixon uses Ritalin every day when he goes to work and some days when he is at home if he is working on a major project around the house. Mr Dixon finds that Ritalin provides a significant positive effect in terms of his functioning in the workplace because it assists him with organisation and concentration, and makes it easier for him to get started on, and apply himself to the completion of, more tedious tasks. According to Mr Dixon he finds Ritalin especially useful when he is required to prepare lengthy and complex reports. He also said that he feels less fatigued when using Ritalin. Although Mr Dixon did not consider that he required or needed Ritalin in order to achieve an acceptable level of functioning, he derived such a significant benefit from its use that he did not consider that he should be deprived of it.
15. Mr Dixon continued to fly after he commenced using Ritalin in mid-2005 until January 2007 when his medical certificate was not renewed by CASA. There were no safety incidents during that period. Mr Dixon stated that he did not take Ritalin on any of the days he flew as he did not consider that it assisted him in the tasks involved in piloting an aircraft. Furthermore he stated that, for the same reason, if his medical certificate was granted, he did not plan to use Ritalin when he flew.
16. This evidence raises two questions relevant to the application of the Table, namely, does Mr Dixon:
·Suffer a safety-relevant condition, namely ADHD?
·Use any medication that causes safety-relevant side effects in him?
17. There is no evidence and nor is it suggested that Mr Dixon fails to satisfy item 2.4 of the Table.
Does Mr Dixon suffer a safty relevant condition?
18. The medical evidence as to whether Mr Dixon actually fits the diagnostic criteria for ADHD is inconsistent.
19. The Diagnostic Manual of Mental Disorders (DSM-IV) describes ADHD as “…a persistent pattern of inattention and/or hyperactivity-impulsivity that is more frequently displayed and more severe than is typically observed in individuals at a comparable level of development”. The consensus of medical opinion is that if Mr Dixon does suffer from ADHD it is of the inattentive type. DSM-IV applies the following diagnostic criteria to that form of ADHD:
A.
1. Six (or more) of the following symptoms of inattention have persisted for at least 6 months to a degree that is maladaptive and inconsistent with developmental level:
Inattention
a. often fails to give close attention to details or makes careless mistakes in schoolwork, work, or other activities
b. often has difficulty sustaining attention in tasks or play activities
c. often does not seem to listen when spoken to directly
d. often does not follow through on instructions and fails to finish schoolwork, chores, or duties in the workplace (not due to oppositional behavior or failure to understand instructions)
e. often has difficulty organizing tasks and activities
f. often avoids, dislikes, or is reluctant to engage in tasks that require sustained mental effort (such as schoolwork or homework)
g. often loses things necessary for tasks or activities (e.g., toys, school assignments, pencils, books, or tools)
h. is often easily distracted by extraneous stimuli
i. is often forgetful in daily activities
…
B. Some hyperactive-impulsive or inattentive symptoms that caused impairment were present before age 7 years.
C. Some impairment from the symptoms is present in two or more settings (e.g. at school [or work] and at home).
D. There must be clear evidence of clinically significant impairment in social, academic, or occupational functioning.
E. The symptoms do not occur exclusively during the course of a Pervasive Developmental Disorder, Schizophrenia, or other Psychotic Disorder and are not better accounted for by another mental disorder (e.g., Mood Disorder, Anxiety Disorder, Dissociative Disorder, or a Personality Disorder).
20. Psychiatrists Drs Greg Apel and Andrew Frukacz both were of the opinion that in respect of Mr Dixon a diagnosis of adult ADHD was not appropriate under the DSM IV criteria. In particular, each took the view that the evidence did not support a finding that Mr Dixon suffers from a clinically significant impairment of concentration and attention. Regardless of Mr Dixon’s own subjective outlook on this question, the evidence (emphasised by Dr Apel) of Mr Dixon’s success in his academic, social and professional life and activity is inconsistent with a diagnosis of ADHD.
21. Dr Chee disagreed with these views, stating his view, based on Mr Dixon’s self-reports, that Mr Dixon suffered a “mild” case of ADHD with clinically significant inattention and impairment of social, academic or professional function. He believed, however, that given the mild form of Mr Dixon’s condition he was fit to fly. Dr Rowe conducted neuropsychological tests in 2009 at Mr Dixon’s request. His findings provided some support for those of Dr Chee. He concluded that Mr Dixon suffered from a “very mild form of ADD”. He found, however, that the results of most of the tests were in the normal range without Ritalin and improved with the use of Ritalin. Dr Apel cautioned against reading too much into those results. He pointed out that the results on testing showed only a slight difference between when Mr Dixon was medicated and unmedicated and that neither revealed any significant cognitive impairment.
22. It is submitted for Mr Dixon that even if he has ADHD, it is of so mild a form that it constitutes no safety hazard. Nevertheless, even a mild form of ADHD may have significance for flight crew. Inattention to instruments, air traffic control and other aircraft can have catastrophic consequences. It is correctly submitted for Mr Dixon that there is no such thing as “absolute safety”: Jones v Bartlett (2000) 205 CLR 166 at 177. But the impossibility of making aviation absolutely safe is an argument for making it is as safe as possible, not for lowering standards of safety. Aviation has enough inherent risks without licensing pilots who do not have the ability to give their full and undivided attention to their duties at all relevant times.
23. There is, however, a real question whether Mr Dixon suffers from ADHD. We are inclined to accept Dr Apel’s sceptical view because, among other things, Mr Dixon has demonstrably made a success of life in various ways and the absence of evidence of any clinically significant impairment of concentration. That his flying career has been uneventful in terms of air safety incidents, while not determinative, is consistent with that conclusion.
24. It is apparent that there is a marginal area in which a person may exhibit some signs or symptoms of the condition without meeting the full load of DSM IV criteria. That a person responds positively to short-term stimulants (such as Ritalin) does not assist a diagnosis in our view. Commonsense suggests that most people would probably do so whether or not they suffer ADHD. The greater weight of expert opinion suggests that despite the 2005 diagnosis, it is more probable than not that Mr Dixon is not an ADHD sufferer, although he may have some mild characteristics associated with the syndrome. Significantly none of the experts whose opinion is before us, including those who believe Mr Dixon suffers from a form of ADHD — variously described as “sub-clinical”, “very mild” and “borderline” — believe that the condition incapacitates Mr Dixon in any way.
25. We conclude that Mr Dixon does not suffer from a safety relevant condition.
Does Mr Dixon’s use of Ritalin cause him to experience any side effects that are likley to affect him to an extent that is safety relevant?
26. As correctly pointed out for Mr Dixon, the issue raised by item 2.3 of the Table is whether his use of Ritalin is likely to affect him to an extent that is safety relevant, and not how Ritalin users at large are affected by the drug. Whether Mr Dixon intends to take Ritalin while piloting is irrelevant to this question.
27. Dr Chee has being seeing Mr Dixon every three months since mid-2005. In his opinion, Ritalin use would not negatively impact on Mr Dixon’s ability to pilot including under instrument conditions. Equally he thought that Mr Dixon would be able to pilot safely without the use of Ritalin. Dr Chee understood that Mr Dixon usually took twenty milligrams per day (2 x 10mg) and only took the maximum dose he had prescribed (30 milligrams) when he was required to work into the evening. He acknowledged that he had no specific expertise in relation to aviation medicine and that his view that Mr Dixon would not constitute a safety risk was based on Mr Dixon’s history as a pilot rather than any aviation experience or study of his own. Dr Chee testified that he has no concerns with Mr Dixon’s use of the medication and that he has been fully compliant in his use of the drug.
28. Occupational physician, Dr David Fitzgerald, an expert in aviation medicine employed by CASA, outlined the significance of Ritalin use in aviation. He explained the dangers of the use of Ritalin in an aviation context, which flow from side effects of the drug. The principal side effects include improved mood manifesting as euphoria and reduced ability to detect the symptoms of fatigue. In his opinion the use of Ritalin is not sufficient to normalise cognition in ADHD sufferers.
29. Dr Fitzgerald also noted that Ritalin is a short-acting drug that has potentially adverse side effects when the drug is wearing off. Those effects include decrease in mood; possible sudden onset of fatigue; and rapid re-establishment of ADHD symptoms. In short, once the stimulant effect wears off, the user may, (pun forgiven in this context), “crash”.
30. He also pointed out that Ritalin is associated with abuse and dependence, which is undesirable in an aviation context and which is crucial in the context of considering any proposal by Mr Dixon to abstain from the use of Ritalin for a set period before conducting flying activities.
31. Dr Apel agreed with Dr Fitzgerald concerning the dangers of Ritalin in flight crews. He described Ritalin as a seductive drug and observed that it is well-known to be associated with physiological and psychological dependence. He noted that the risk of dependence is greater in users who start with a baseline of normality because it is then used not to correct an abnormality but for its stimulant properties. In his opinion while Ritalin improved narrow thinking, lateral thinking can sometimes be lost as it is not possible to maximise both.
32. He pointed out that anyone who uses Ritalin will experience some improvement in concentration regardless of whether they suffer from ADHD. He agreed with the proposition that a person using Ritalin might not be able to recognise when its effects start to wear off.
33. The results on testing by Dr Rowe in our view do not fully address these concerns. As noted, Dr Rowe found not only that Mr Dixon was able to fly safely while using Ritalin but that his cognitive functioning on testing showed a general improvement. While powerful evidence supportive of Mr Dixon’s assertion that he does not suffer any adverse relevant side effects as a result of using Ritalin, it does not address the concerns raised by Drs Frukacz and Apel about the short acting nature of the drug, the fact that its use may mask signs of fatigue, and that the user may be less able to detect symptoms of fatigue.
34. The safety standard is very stringent for obvious reasons. If the use of a medication “causes the person to experience any side effects likely to affect the person to an extent that is safety relevant” he or she will not be able to meet the criteria for a Class 2 medical certificate.
35. Mr Dixon uses Ritalin most days of the month and has been doing so for several years now. He is, therefore, “using a prescribed medication” that has specific side effects as outlined in the discussion above. Dr Fitzgerald’s evidence concerning the side-effects and potential side-effects of Ritalin are not contentious.
36. There are several obvious dangers associated with the use of Ritalin by pilots. First, a pilot’s judgment may be adversely affected by its stimulating or euphoric effect to the point where he or she may take risks that prudence would not permit. Second, the pilot may fly while fatigued without noticing the effects of the underlying fatigue. Third, when the stimulating effect wears off, the pilot may suffer a sudden onset of fatigue with a decreased ability both to fly the aircraft and to attend to instruments.
37. For a medical certificate to be refused, the safety risk due to the abnormality or use of medication must be real and substantial. It does not, however, have to be a high risk. It is sufficient that the risk not be remote, imaginary or fanciful: see Re Window and Civil Aviation Safety Authority (1999) 56 ALD 316 at 335; Re Hall and Civil Aviation Safety Authority [2004] AATA 21 at [45]; Re Mulholland and Civil Aviation Safety Authority [2007] AATA 1952 at [65]-[67].
38. On the evidence before us, the risk of Mr Dixon suffering adverse side effects that could result in the aircraft, crew, passengers, other members of the public or property being endangered cannot be regarded as remote. Mr Dixon therefore does not meet the standard for a Class 2 medical certificate.
Can any condition be imposed allowing a certificate to issue?
39. CASA or the Tribunal acting as substitute decision-maker, may issue a medical certificate 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: reg 67.195 of the Safety Regulations.
40. Mr Dixon contends that the concerns raised by CASA can be addressed by imposing a condition that he not pilot an aircraft until 72 hours have elapsed after last taking Ritalin. Mr Dixon points out that the unanimous medical evidence is that the effect of the medication is short lived and that a 72-hour hiatus after last ingestion of the prescribed amount is more than adequate time for any side effects to dissipate.
41. This submission deals with only part of the medical evidence concerning the effects of Ritalin. It also assumes that the Ritalin being taken by Mr Dixon has the effect of obviating ADHD symptoms. But if, as we think is most likely the case, Mr Dixon does not need Ritalin for this purpose another problem arises.
42. This is an issue that has not been fully canvassed in these proceedings. It was submitted for him that Mr Dixon was not cross-examined on whether he abused his medication and that to make any such suggestion would be “mischievous and unfair”.
43. This submission misses the critical point. It is not suggested that Mr Dixon has abused or is abusing his medication, nor could such a suggestion properly have been put. No one suggests that he is using it for any reason other than that it was prescribed for him by Dr Chee. The objective fact remains that Mr Dixon is constant in his use of Ritalin. The weight of medical evidence is that it is a highly addictive drug. If in fact he does not need it for ADHD he may, through no fault of his own, after several years of using Ritalin, be psychologically and physiologically dependent on the drug.
44. It is well known that stopping drug dependency can be a lengthy process. Without making a finding that Mr Dixon is, in fact, dependent on Ritalin — for which we have no direct evidence — we simply note that he has been using a drug caught by item 2.3 of the Table for several years. It would therefore be naïve to think that the Tribunal could simply endorse a condition to the effect that Mr Dixon should not use Ritalin within 72 hours of flying and think that this would solve the safety issue.
45. A further difficulty with the condition in the form as proposed is that it has not addressed how compliance could be monitored.
Application of the Protocol
46. CASA contends that the Tribunal ought apply the recently introduced protocol “Aeromedical Management Protocol in Attention Deficit Disorder”. The protocol, which the principal medical officer of CASA adopted earlier this year and now forms part of the handbook used by Designated Aviation Medical Examiners, provides:
Requirements for applicants taking ADHD medications
Applicants will not be considered for certification unless they have ceased pharmacological treatment for a minimum of 6 months. This is because:
DSM-IV criteria require a time frame of at least 6 months of symptoms before a diagnosis can be made - it is therefore reasonable that a period of 6 months without symptoms is required to be satisfied that the condition is no longer active.
The measurement of impairment in occupational and psychosocial domains would not be evident immediately on ceasing medication. For example, decrease in academic achievement or work performance would take some time to be made manifest.
At the end of that time, the reports as prescribed above will need to be submitted to CASA for evaluation.
47. CASA stated that it would be prepared to certify Mr Dixon fit to fly if, consistent with the Protocol, after ceasing use of Ritalin for a period of six months, he was able to demonstrate that he was able to function adequately without it.
48. Mr Dixon points to the long history of his application for medical certification and contends that this is yet another example of CASA “moving the goal posts”. He points out that for the past four years he has been subjected to exhaustive medical testing and none of the practitioners who have assessed him have found that he suffers from any relevant functional incapacity, with or without the use of Ritalin.
49. It is uncontroversial that Mr Dixon has at all times cooperated with CASA and made full and frank disclosure about his condition.
50. There is a long line of authority stemming from the decision of the Full Court in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, in particular the joint judgment of Bowen CJ and Deane J, that in the exercise of its review function the Tribunal must take into account any relevant statement of governmental policy unless there are cogent reasons not to do so. The stated rationale for the six month cessation rule contained in the Protocol is to allow assessors to to properly assess a person while unmedicated over a sustained period. However, in this case, given that Mr Dixon has been subjected to comprehensive testing over an extended period, we believe that it would be sufficient if he was re-assessed after ceasing to use Ritalin for a lesser period. We think in the circumstances a period of three months is adequate.
51. Accordingly we have decided to issue Mr Dixon a Class 2 Medical certificate subject to the condition that he provide CASA with satisfactory evidence that he:
(i) Has not used Ritalin for a continuous period of at least three months within 12 months of the date of this decision; and
(ii) Has been certified by a suitably qualified practitioner, that he does not suffer from a “safety relevant condition”, following an assessment undertaken after he has not used Ritalin for at least three months; and
(ii) Continues to meet all other relevant criteria listed in Table 67.150 of the Civil Aviation Safety Regulations 1998 (Cth).
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
Signed: .............................[sgd].................................
Associate to Senior Member BrittonDates of Hearing 9 and 10 March 2011
Date of Decision 18 May 2011
Solicitor for the Applicant Mr S Ferrier, Ferrier and Associates
Solicitor for the Respondent Mr J Rule, CASA Legal Services Group
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