HACKETT and CIVIL AVIATION SAFETY AUTHORITY

[2011] AATA 453

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 453

ADMINISTRATIVE APPEALS TRIBUNAL                   )

)        No 2010/3211, 5528

GENERAL ADMINISTRATIVE DIVISION		)
Re		JEREMY JAMES HACKETT

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member
Dr M E C Thorpe, Member

Date29 June 2011

PlaceSydney

Decision

Pursuant to section 42B of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses Mr Hackett’s application for review, (matter 2010/3211), of the decision of CASA dated 21 April 2010 which suspended his Class 1 and Class 2 medical certificates.

In matter 2010/5528, the Tribunal varies the decision under review dated 22 October 2010 as amended on 13 January 2011 by replacing the conditions imposed on Mr Hackett’s Class 1 and Class 2 medical certificates with the following conditions:

A)   Mr Hackett must provide to CASA the following 3 monthly blood test results;

§  MCV

§  GGT

§  CDT

B)   Mr Hackett must provide to CASA a three monthly progress report from the Qantas Medical Officer.

C)   Mr Hackett must provide a three monthly progress report from his psychiatrist, Dr Phillips.

D)   Mr Hackett’s Aviation Medical Certificates should be endorsed ‘Renew by CASA Only’. This alerts the DAME that only Aviation Medicine can revalidate the certificate after assessment of the required reports.

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

Ms G Ettinger

Senior Member

CATCHWORDS

CIVIL AVIATION – Applicant holder of Class 1 and Class 2 medical certificates – incident overseas following alcohol consumption with fellow crew member – whether Applicant’s reported behaviour was a manifestation of excessive alcohol consumption or a psychotic episode or drink spiking – decision under review varied – conditions varied.

Civil Aviation Act 1988 (Cth), s 9A

Civil Aviation Safety Regulations 1998 (Cth), regs 67.010, 67.015, 67.150, 67.155, 67.180, 67.195, 67.240

Attorney-General v Wentworth (1988) 14 NSWLR 481

Ford v Child Support Registrar [2009] FCA 328

Re Reddish and Civil Aviation Safety Authority [1999] AATA 721

Re Williams and Australian Electoral Commission and The Greens (Party joined) (1995) 38 ALD 366

REASONS FOR DECISION

29 June 2011	Ms G Ettinger, Senior Member   Dr M E C Thorpe, Member
SUMMARY

1. Mr Jeremy James Hackett is a Second Officer with Qantas, and flies internationally. On the night of 22 March 2010, while on an overnight trip in Buenos Aires, and after he had spent the evening dining with his captain and fellow flight officers, he continued to party with First Officer Simon Redhead. We are satisfied from the evidence that both men had been drinking, talking, and exchanging views. We are mindful also, that based on the subjects raised by Mr Hackett during those late night and early morning conversations, such as adverse environmental impacts on the future of the planet and his children, death and reincarnation, and Mr Hackett’s robust emphasis of his views with gestures such as banging his fist on a table, Mr Redhead became concerned for Mr Hackett’s safety. Mr Redhead, accordingly made contact with the Qantas welfare officer, Captain Steven Anderson of the Australian and International Pilots Association (AIPA) in Sydney, reporting that Mr Hackett was delusional and suicidal. Matters moved quickly from there, Qantas doctors became involved, and Mr Hackett was stood down, and then returned to Sydney as a passenger, and accompanied by a psychologist, on the flight he should have been operating on the following day.

2. The Civil Aviation Safety Authority (CASA) subsequently suspended Mr Hackett’s Class 1 and Class 2 medical certificates in April 2010.

3. Mr Hackett appealed the decision, and after a series of medical reports and other internal measures had been taken, a second decision was made in October 2010, which permits him to fly with certain conditions.

4. The matters before us are to determine applications for review of both decisions. CASA’s second decision, to allow Mr Hackett to fly with conditions, renders the first, made on 21 April 2010, nugatory, and the appeal from it is therefore dismissed pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

5. As to the second decision of CASA; we are satisfied that the correct or preferable decision is to vary it, and to continue with certain conditions on Mr Hackett’s Class 1 and Class 2 medical certificates. Our reasons follow.

ISSUES BEFORE THE TRIBUNAL

1. The first issue in this application is to make the correct or preferable decision with regard to application 2010/3211, Mr Hackett’s appeal against the suspension of his Class 1 and Class 2 medical certificates, made on 21 April 2010 pursuant to regulation 67.240 of the Civil Aviation Safety Regulations 1998 (CASR).

2. In order to make the correct or preferable decision in relation to matter 2010/5528, Mr Hackett’s appeal from the decision of CASA dated 22 October 2010, which issued Mr Hackett with Class 1 and Class 2 medical certificates subject to conditions, (and, as amended by the addition of a further condition on 13 January 2011), the Tribunal must decide:

   (a)whether Mr Hackett meets the medical standard for the issue of a Class 1 or Class 2 medical certificate;

   (b)whether any conditions should be imposed upon his medical certificates.

THE LEGISLATIVE ENVIRONMENT

1. CASA’s role, pursuant to section 9A of the Civil Aviation Act 1988, (the Act), is to ensure the safety of air navigation. Accordingly, this Tribunal, when carrying out its review, and exercising the powers under the Act and the CASR, must treat the safety of air navigation as the most important consideration.

2. A pilot must, pursuant to the relevant regulations, hold a current medical certificate appropriate for the licence sought. In this case, the relevant medical certificates are those referred to under the regulations as Class 1 and Class 2. These two certificates are dealt with under different regulations, which are at Part 67 of the CASR. The same test applies in each case.

3. 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.

4. Regulation 67.180 prevents the Respondent from issuing a medical certificate unless an Applicant meets the relevant medical standard or, if the Applicant does not meet that medical standard, the extent to which the Applicant does not meet that standard is not likely to endanger the safety of air navigation.

5. For the purposes of Part 67 of the CASR, a medically significant condition is safety-relevant if it reduces, or is likely to reduce, the ability of someone who has that condition 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.

6. The relevant medical standards applicable to the Applicant are the following parts of the medical standard 1 (in relation to a Class 1 medical certificate) and medical standard 2 (in relation to a Class 2 medical certificate).

67.150 Who meets medical standard 1

(1)Subject to subregulations (2) to (7), a person who satisfies the criteria in table 67.150 meets medical standard 1.

…

Table 67.150 Criteria for medical standard 1

Item Criterion

…

Mental fitness

1.4Has no established medical history or clinical diagnosis of any of the following conditions, to an extent that is safety-relevant:

(a)psychosis;

(b)significant personality disorder;

(c)significant mental abnormality or neurosis.

1.5Does not engage in any problematic use of substances (within the meaning given by section 1.1 of Annex 1, Personnel Licensing, to the Chicago Convention)

1.6If there is any personal history of problematic use of a substance (within the meaning given by section 1.1 of Annex 1, Personnel Licensing, to the Chicago Convention):

(a)the person’s abstinence from problematic use of the substance is certified by an appropriate specialist medical practitioner; and

(b)the person is not suffering from any safety-related sequelae resulting from the person’s use of the substance; and

(c)the person provides evidence that the person is undertaking, or has successfully completed, an appropriate course of therapy.

Note:  In Annex 1, Personnel Licensing, to the Chicago Convention, ‘Problematic use of substances’ is defined as follows:

‘The use of one or more psychoactive substances by aviation personnel in a way that:

a)constitutes a direct hazard to the user or endangers the lives, health or welfare of others; and/or

b)causes or worsens an occupational, social, mental or physical problem or disorder.’.

‘Psychoactive substances’ is there defined as ‘Alcohol, opioids, cannabinoids, sedatives and hypnotics, cocaine, other psychostimulants, hallucinogens, and volatile solvents, whereas coffee and tobacco are excluded.’.

…

67.155 Who meets medical standard 2

(1)Subject to subregulations (2) to (7), a person who satisfies the criteria in table 67.155 meets medical standard 2.

…

Table 67.155 Criteria for medical standard 2

Item Criterion

…

Mental fitness

2.4Has no established medical history or clinical diagnosis of any of the following conditions, to an extent that is safety-relevant:

(a)psychosis;

(b)significant personality disorder;

(c)significant mental abnormality or neurosis.

2.5Does not engage in any problematic use of substances (within the meaning given by section 1.1 of Annex 1, Personnel Licensing, to the Chicago Convention)

2.6If there is any personal history of problematic use of a substance (within the meaning given by section 1.1 of Annex 1, Personnel Licensing, to the Chicago Convention):

(a)the person’s abstinence from problematic use of the substance is certified by an appropriate specialist medical practitioner; and

(b)the person is not suffering from any safety-related sequelae resulting from the person’s use of the substance; and

(c)the person provides evidence that the person is undertaking, or has successfully completed, an appropriate course of therapy.

Note:  In Annex 1, Personnel Licensing, to the Chicago Convention, ‘Problematic use of substances’ is defined as follows:

‘The use of one or more psychoactive substances by aviation personnel in a way that:

a)constitutes a direct hazard to the user or endangers the lives, health or welfare of others; and/or

b)causes or worsens an occupational, social, mental or physical problem or disorder.

‘Psychoactive substances’ is there defined as ‘Alcohol, opioids, cannabinoids, sedatives and hypnotics, cocaine, other psychostimulants, hallucinogens, and volatile solvents, whereas coffee and tobacco are excluded.’.

1. As defined by regulation 67.015, a condition is safety-relevant if it is likely to reduce the ability of the person to exercise the privileges conferred by the licence (in this case, the Applicant’s commercial pilot licence and private pilot licence respectively).

2. Regulation 67.180 of the CASR requires that a person undergo medical examinations, and then CASA must consider pursuant to regulation 67.180(2)(e), whether:

   (e) either:

   (i)the applicant meets the relevant medical standard; or

   (ii)if the applicant does not meet that medical standard - the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation;

BACKGROUND

1. Mr Hackett is now 40 years of age, and has been flying with the RAAF and with Qantas. He suffered a moderately severe depressive disorder for which he was treated in 2007 by his general practitioner, and from January 2008, by Dr J Phillips, a consultant psychiatrist. Mr Hackett was not able to fly for approximately six months during 2008.

2. However, for purposes of these proceedings, pursuant to CASA’s decision on 22 October 2010 (as amended on 13 January 2011), Mr Hackett has been flying with conditions on his Class 1 and Class 2 medical certificates. Dr Phillips continues to look after Mr Hackett and provide reports to CASA on a monthly basis as required by CASA. A number of Dr Phillips’ reports are before the Tribunal, and he also gave oral evidence which is referred to below.

3. The events concerning us in this application occurred on the night of 22 March 2010 (and into 23 March 2010), in Buenos Aires, after the crew of a Qantas aircraft under the command of Captain B Henwood, dined with him. The account of certain of the events and conversations which follow are not agreed between the parties.

4. It is not in dispute however, that Captain Henwood and one Second Officer retired after dinner. The evidence before us indicates that Second Officer Hackett and First Officer Redhead who had met only for the first time on that occasion, continued to drink and engage in conversation in a local bar/café, and then in the hotel in which the crew was staying. The conversations between Mr Redhead and Mr Hackett continued in both their hotel rooms, and in the hotel foyer, not necessarily in that sequence.

5. It is also clear that both men consumed quantities of alcohol such as wine, beer, and grappa (the latter, a bottle purchased by Mr Redhead), although the amounts drunk by each are not agreed. In his oral evidence which he gave by telephone, Mr Redhead estimated that over a period of approximately eight hours, he consumed the equivalent of about a six pack of beer, (Trs 28.3.2011, page 5). He said: … I certainly wouldn’t say that I was unaffected [by alcohol], (Trs 28.3.2011, page 5), and estimated his alcohol reading would have been within about 0.05 to 0.10, (Trs 28.3.2011, page 5). Mr Redhead also told us that he did not consume any grappa, although it was undisputed that it was he who bought the bottle from which Mr Hackett was drinking. Mr Redhead estimated that Mr Hackett drank half the bottle of grappa between 4:00 am when the two returned to the hotel, and approximately 11:00 am when they retired. Mr Redhead told us that he did not drink any alcohol between 4:00 am and 11:00 am (23 March 2010), and that overall, he drank less than Mr Hackett. Mr Hackett’s recollection was that the pair returned to the hotel at approximately 7:00 am, shortly before sunrise. He described Mr Redhead as rolling drunk, (Trs 28.3.2011, page 64).

6. We have noted that Mr Redhead became concerned at the subjects of conversation Mr Hackett was initiating. He provided his notes recording his impressions of what occurred, dated 23 March 2010, which are before the Tribunal at T4/10, (Exhibit R2).

7. Amongst the many topics which Mr Redhead says Mr Hackett raised were prophets, David Koresh in particular, environmentalism, the occult, moving behind his corporeal shell, mining or simulating mining of Newcastle Harbour, saving Mr Hackett from killing himself, setting up his family for the post environmental apocalypse, and protection of Mr Hackett from his demons.

8. Mr Redhead stated he felt that Mr Hackett was not just drunk, but delusional, quite passionate, animated, and, at times, angry to the point of hitting the table and snarling. Mr Redhead also reported Mr Hackett being morose and tearful, approximately six times. He says that he understood from Mr Hackett’s statement: stop me from killing myself, said near the window in Mr Redhead’s hotel room, that Mr Hackett was suicidal. He said that he saw Mr Hackett looking behind pot plants to see if people were hiding there, that he told Mr Redhead he suspected Mr Redhead was a psychologist planted by Qantas to check on him, and that in the room, he slammed Mr Redhead’s suitcase shut saying that people were in it looking at him.

9. Mr Hackett agreed in evidence that he had, amongst the topics mentioned by Mr Redhead, also raised other subjects, and that he had been upset by the state of the world in relation to the environment. He strongly disagreed however, that he had been suicidal. He said that he did not recall wanting to kill himself. He says that his approach to the window in Mr Redhead’s room was to see if there was a balcony so that he could go outside to smoke a cigarette, and that in the absence of a balcony, he went downstairs outside the hotel to smoke. He said that Mr Redhead was genuinely concerned about him wanting to go out and get breakfast, and would not let him leave the hotel. Mr Hackett said that he did not shout, but that he does speak in a colourful fashion.

10. We noted from Mr Redhead’s replies to questions from Mr Hackett at the hearing that he did not have the same environmental concerns as Mr Hackett, and that he was perhaps not as widely read. We also noted that Mr Redhead agreed with Mr Hackett that the latter had been joking when he slammed down the lid of the suitcase.

11. When Mr Hackett asked Mr Redhead if he really thought that he (Hackett), was intending to kill himself, Mr Redhead answered that he was not in a position to know, but that he felt he had a duty of care, which is what led him to seek assistance from Captain Anderson.

12. Mr Hackett’s evidence regarding his activities and those of Mr Redhead after their return to the hotel at approximately 7:00 am was that they were in the bar of the hotel, then in Mr Redhead’s room, then back playing the piano in the lobby. Mr Hackett told us his recollection was that Mr Redhead wanted to protect him, and he had no idea why. He said that Mr Redhead did not have the background to understand about what he had been speaking, and that made him angry.

13. In his oral evidence, Mr Redhead said that he finally left Mr Hackett in his room at approximately 11:10 am on 23 March 2010. He said he, (Redhead), was quite sober then, as he had not drunk anything for seven hours, and that, after leaving Mr Hackett in his room, he made a telephone call to Captain Anderson (in Sydney), whom he knew to be responsible for the welfare of pilots. It is common ground that Captain Anderson then contacted Dr S Ryan, the Qantas medical officer who made the decision to stand Mr Hackett down.

14. Mr Hackett agreed that the Qantas medical officer in Buenos Aires, Dr R Kelly, (a Federal Aviation Administration Senior Medical Examiner), accompanied by a staff member of the hotel attended at Mr Hackett’s room with Captain Henwood at approximately 2:00 pm on 23 March 2010. This was after unsuccessful attempts had been made to contact Mr Hackett by telephone. Mr Hackett told us that he had been asleep, but awoke, and recalled the telephone ringing on several occasions. However, it appeared the telephone handset had not operated correctly (a button was stuck), so he could not answer the calls, which of course caused further concern to those ringing.

15. When Dr Kelly and Captain Henwood knocked at his door with a staff member at 2:00 pm, Mr Hackett who had been asleep, woke up and opened the door. Captain Henwood and Dr Kelly were able to speak to him. Captain Henwood’s email of 26 March 2010 to Mr O Miller, Mr Hackett’s fleet manager, reported Mr Hackett as being lucid, no sign of disorientation or confusion although understandably bemused at our attendance, the reason for which he had no idea. In his report of 29 March 2010, Dr Kelly reported that Mr Hackett was under the effect of alcoholic beverages, he was conscious of where he was and his function on board the plain (sic) but his speech was by moments incoherent. He also states in his report that he was told by the Qantas medical officer in Australia, that Mr Hackett was suffering hallucinations, and had been suspected of having a (sic) suicidal conduct.

16. The decision to stand Mr Hackett down had been made by Dr Simone Ryan in Sydney following Mr Redhead’s telephone call to Captain Anderson. In consultation with Sydney, Dr Kelly arranged for his son, a psychologist, to accompany Mr Hackett home as a passenger on Captain Henwood’s scheduled flight the following day.

1. Captain Henwood gave oral evidence at the Tribunal. His report to Mr Miller stated that he received a telephone call in Buenos Aires from Captain Anderson at 11:56 am on 23 March 2010, and that when Dr Kelly arrived at approximately 2:00 pm, he, Dr Kelly and a hotel staff member knocked at Mr Hackett’s door which was answered by Mr Hackett. He reported that: Despite considerable jet lag and lack of sleep S/O Hackett was able to present as lucid, no sign of disorientation or confusion although understandably bemused at our attendance, the reason for which he had no idea.  Captain Henwood noted in his report that Dr Kelly had resolved Mr Hackett was not suicidal, but needed further rest, and that he would meet him again at 7:45 pm, later that day.

2. It is common ground that Mr Hackett met with Dr Kelly and Captain Henwood a second time, at 7:45 pm, and that Mr Hackett was lucid according to Captain Henwood. He was assessed by Dr Kelly as no risk to fly home as an accompanied passenger the following day, which is what occurred, uneventfully. We note there were of course costs incurred, and a rescheduling of the aircraft due to crew numbers. Captain Henwood told us in reply to questioning by Mr Hackett that he spoke to Sydney after Dr Kelly’s second visit, and told them that he did not think there was a problem, and that he would have been content for Mr Hackett to operate with him on the flight. However, he said that the decision to stand Mr Hackett down had already been made, and the discussion focused on getting him back to Sydney.

3. Captain Henwood confirmed that he met Mr Hackett and the crew for dinner at 8:30 pm the evening of 23 March 2010. Captain Henwood noted that Mr Hackett did not drink any alcohol (his own choice). Captain Henwood also reported that he remained normal throughout – though with no recollection of reasons for F/O Redhead’s concern. The Captain also stated that; At all times in my presence S/O Hackett has presented as well balanced, thoughtful, good humoured. He has expressed appreciation at the concern shown for his well being, no anger at the process and understandable concern at the resulting operational difficulty. I look forward to flying with him again.

4. Mr Redhead stated in his notes that he spoke with Mr Hackett before the departure from Buenos Aires on 24 March 2010, noting that:

   He expressed surprise when I told him we had spent nearly 7 hours back at the hotel. He can only recall brief glimpses of events and appears to have lost some 4 hours of time. He seems to remember arriving back at the hotel and coming back up to my room but has compressed these events into a relatively short time frame. He also expressed surprise when I outlined some of the events detailed above as he has no recollection of them.

5. As a result of the events in Buenos Aires and the medical reports, CASA suspended Mr Hackett’s Class 1 and Class 2 medical certificates pursuant to regulation 67.240 of the CASR on 21 April 2010. Mr Hackett appealed that decision to this Tribunal.

6. Then on 22 October 2010, before the appeal at the Tribunal was heard, CASA issued Mr Hackett with Class 1 and Class 2 medical certificates subject to a number of conditions. The conditions are reproduced below.

   ·     You are to provide to CASA a 3 monthly report from a specialist, who is a Fellow of the Chapter of Addiction Medicine specialists, of the RACP. This should include an assessment current status and behavioural change;

   ·     You are to provide to CASA the following 3 monthly blood test results;

   oMCV

   oGGT

   oCDT

   ·     You are to arrange for an accredited testing agency to perform random breath alcohol testing 6 times in the next 6 months, and forward the results to CASA;

   ·     You are to provide to CASA a monthly progress report from Qantas Medical Officer.

   ·     Your Aviation Medical Certificate has been endorsed ‘Renew by CASA Only’. This alerts the Designated Aviation Medical Examiners that only Aviation Medicine can revalidate your certificate after assessment of the required reports.

7. On 13 January 2011, CASA added a further condition, being:

   You are to provide monthly progress reports from Dr Phillips, Psychiatrist

8. Mr Hackett has appealed both CASA decisions, although of course the second, reinstating his Class 1 and Class 2 medical certificates, renders the first, which suspended his certificates, nugatory. Both matters before the Tribunal being applications 2010/3211 and 2010/5528 must be finalised.

Re Application 2010/3211

1. CASA has applied for an order under s 42B(1) of the AAT Act on the ground application 2010/3211 is frivolous because a successful outcome would not be of any practical benefit for Mr Hackett. Section 42B(1) states:

   (1)  Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the - proceeding proceeding, if it is satisfied that the application is frivolous or vexatious:

   (a)  dismiss the application; and

   (b)  …

2. In Re Williams and Australian Electoral Commission and The Greens (Party joined) (1995) 38 ALD 366, at [30], the Tribunal emphasised that the power of dismissal must be exercised cautiously and sparingly. The Tribunal, comprising the then President, Justice Matthews, together with Deputy Presidents Justice Hill and Justice Beaumont, referred to the test to be applied in determining whether proceedings are frivolous or vexatious as set out in Attorney-General v Wentworth(1988) 14 NSWLR 481, where at 491, Roden J said:

   It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:

   1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

   2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

   3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

1. In Re Reddish and Civil Aviation Safety Authority[1999] AATA 721 (cited with approval by Ryan J in Ford v Child Support Registrar[2009] FCA 328, at [35]), Deputy President Blow, in dismissing an application under s 42B, said, at [33]:

   In this context, “frivolous” means “obviously unsustainable”: Attorney-General of the Duchy of Lancaster v London and North Western Railway [1892] 3 Ch. 274. The cases of Gowing, Surf Air and Williams are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant. Plainly this Tribunal will not be able to make a decision that will be of any practical benefit to the applicant, and it would be a waste of everyone’s time and money for any of these three applications to be allowed to remain on foot. I have therefore decided to dismiss them all pursuant to s.42B(1)(a) of the AAT Act.

1. In our view, it is clear from the authorities cited above that the Tribunal has power to dismiss an application under s 42B(1) if an application is devoid of any practical effect: Williams at [39]. While the proceedings in that matter had not been instituted vexatiously, they had become vexatious. The Tribunal commented, at [39]:

   … when the only interest of the applicant that could possibly have been affected by the disputed decision, ceased to exist. It would impose unnecessary expense and hardship upon the respondent and the Greens if the case were to proceed further.

2. The Tribunal therefore exercised its power to dismiss the application for review, and we do so similarly in matter 2010/3211.

RAAF

1. For the sake of completeness, and mindful that the objectives in the RAAF and requirements for flying are different from those in a commercial airline, we note that Mr Hackett told us that he is cleared to fly unrestricted and without any periodic specialist review in the RAAF (Exhibit A3, 16 March 2011). At the resumed hearing on 18 May 2011, he also told us that he has taken leave from Qantas from July 2011 to fly with the RAAF.

Ms R Dolton, International Operations Controller

1. We heard oral evidence from Ms R Dolton who was on duty as the International Operations Controller when Mr Redhead telephoned from Buenos Aires to speak to Captain Anderson about Mr Hackett. She said that Mr Redhead expressed concern with Mr Hackett’s mental state. He sounded aggressive, angry, and demanding, and also said at one point: We have been out drinking all night, (Trs 29 March 2011, page 156).

2. Ms Dolton told us that she had spent six hours of her shift connecting international calls and rescheduling the aircraft as a result of Mr Hackett being stood down.

THE MEDICAL EVIDENCE

1. The medical evidence applies equally to the Class 1 and Class 2 medical certificates.

2. We have already noted above the essence of Dr Kelly’s report which is in the T-documents (T5, Exhibit R2). He saw Mr Hackett once at approximately 2:00 pm, and then again at approximately 7:45 pm on 23 March 2010, and his evidence dealt only with the incident in Buenos Aires. He did not give oral evidence. We noted that Dr Kelly and Captain Henwood’s reports of how they found Mr Hackett when they woke him at 2:00 pm on 23 March 2010, differed. As already stated, Dr Kelly reported to Qantas that Mr Hackett was under the effect of alcoholic beverages, he was conscious of where he was and his function on board the plain (sic) but his speech was by moments incoherent. Captain Henwood reported Mr Hackett as being lucid, no sign of disorientation or confusion although understandably bemused at our attendance, the reason for which he had no idea. Dr Kelly’s involvement with Mr Hackett ceased when he saw him at 7:45 pm on the same evening in the company of Captain Henwood, and assessed him as no risk to fly home as an accompanied passenger the following day.

3. There was also oral evidence, and amongst others, medical reports of Dr S Ryan, then Medical Officer, Qantas Aviation Medical Services, Dr P Navathe, CASA Chief Medical Officer, Dr M Frei, Addiction Medicine Specialist, Dr P Haber, Specialist in Gastroenterology and Hepatology, and Dr J Phillips, Mr Hackett’s treating psychiatrist.

Dr S Ryan, Medical Officer, Qantas Aviation Services, and the circumstances of standing Mr Hackett down

1. Dr Ryan was, at the relevant date in March 2010, a medical officer with Qantas Aviation Medical Services, an appointment she no longer holds. She told us that she did not renew the appointment due to family commitments. We note also that she had been Mr Hackett’s (Designated Aviation Medical Examiner) DAME, and that he ceased consulting her for those purposes during 2010. He expressed certain animosity towards Dr Ryan during the hearing, which we note for the sake of completeness, but which is not relevant to our decision making.

2. We had reports and email communications of Dr Ryan in the T-documents, including relevantly her report to Mr Miller, dated 24 March 2010, (Exhibit A4), and at T7/18 (Exhibit R2), a copy of a facsimile dated 20 April 2010 from Dr Ryan to the Aviation Medical Department of CASA. That was the date on which Dr Ryan notified CASA of the incident involving Mr Hackett in Buenos Aires, following which, CASA, on 21 April 2010, suspended his medical certificates. We are mindful Mr Hackett expressed frustration with delays of provision of documents to him, and the notification to CASA. None of that is however, relevant to our decision making.

3. Dr Ryan said that she made the decision to stand down Mr Hackett on 23 March 2010 (Sydney time), because Captain Anderson reported to her that there was a risk of Mr Hackett possibly incurring self harm, because he could not be contacted by telephone in his room, and because there were operational pressures regarding a fourth crew member for the next day’s flight back to Sydney from Buenos Aires. She stated that Dr Kelly’s concerns that Mr Hackett may have been suffering an acute psychotic episode or an adverse reaction to consumption of alcohol were also taken into account.

4. Dr Ryan said that she spoke to a number of people before making the decision to stand Mr Hackett down, and that she had spoken to Dr Kelly after he saw Mr Hackett. She said that she could not be certain if Mr Hackett had suffered an acute psychotic episode, and/or a bad reaction to alcohol. She said that she did not consider drink spiking. However it was her duty to Mr Hackett, and in the interests of aviation safety to stand him down in case the allegations made were substantiated.

5. In her email to Mr Miller (Exhibit A4), dated 24 March 2010, Dr Ryan explained that she relied on information from Dr Kelly stating that Dr Kelly’s assessment that he was in no doubt that there were multiple contributing factors – least of all the alcohol. She also informed Mr Miller that this was not new for Mr Hackett. He had had his Class 1 medical certificate suspended almost two years previously for similar behaviour, unrelated to alcohol however. When questioned, Dr Ryan said that it was in relation to Mr Hackett’s depressive episode. She also recounted that prior to that episode he had undergone two years of extensive CASA review and monitoring.

6. We are satisfied from the evidence of Dr Ryan, Dr Navathe and Dr Phillips that because aviation safety is paramount, Dr Ryan made the most appropriate decision in standing Mr Hackett down on 23 March 2010. We hasten to add that Dr Ryan’s decision at that time, does not influence the decisions we have to make.

Dr P Navathe, Chief Medical Officer, CASA

1. We had before us the report of Dr P Navathe, (Exhibit R4). Dr Navathe also gave oral evidence at the Tribunal. He explained the different levels of risk management with which CASA, as the regulator, is concerned. Dr Navathe emphasised that for CASA, the safety of air navigation is paramount, and that it therefore takes a conservative view. He explained that a medical certificate could still be issued to a person whether or not that person met the standard. Dr Navathe told us that CASA, in coming to a decision about a pilot, employed the opinions of the medical officers of CASA who are trained in aviation medicine, occupational medicine, and risk management combined with the opinions of relevant clinical specialists. In regard to Mr Hackett, he said that they had to assess whether the event in Buenos Aires was a psychotic episode, an unusual response to alcohol, or just a good night out.

2. Dr Navathe spoke in support of the decision Dr Ryan made to stand Mr Hackett down, even though that had perhaps been made without full knowledge of his condition in Buenos Aires. Dr Navathe said that the decision to stand down a pilot was made based on the risk perceived at the relevant time, and emphasised that the decision maker could not wait for any ambiguities in the situation to be resolved.

3. Referring to Mr Hackett’s RAAF clearance to fly, he explained that the risk paradigm in a military situation was quite different.

Dr M Frei, Addiction Medicine Specialist

1. Dr Frei prepared a report dated 10 February 2011 (Exhibit R5), at the request of Dr Navathe on the basis of CASA file notes, discussions with Dr Navathe, and medical reports. He also gave oral evidence before the Tribunal. Dr Frei did not examine Mr Hackett or speak to any of Mr Hackett’s treating doctors. He noted Mr Hackett’s medical background in detail, and with some errors of fact, which do not concern us here. He indicated amongst other things, that Mr Hackett was diagnosed with a depressive disorder and treated by his general practitioner for it from December 2007, and that he was referred to Dr Phillips for treatment from January 2008.

Dr J Phillips, Mr Hackett’s Treating Psychiatrist

1. We had several reports from Dr Phillips regarding Mr Hackett before us. He also gave oral evidence.

2. When Dr Phillips was informed that CASA was, on the basis of Dr Navathe’s observations of Mr Hackett during the course of the Tribunal hearing, seeking a further report from a psychiatrist, (without examination of Mr Hackett), he raised it as a serious challenge to his reports about Mr Hackett. He stated that whilst he found CASA’s actions to be unusual, he supported the notion of peer review. He stated that it would be critical for the reviewing psychiatrist to have access to all 13 of his reports. Dr Phillips also offered in the spirit of openness to speak to the psychiatrist, Dr Chris Bench.

3. We moved then to consider whether Mr Hackett meets the medical standard for the issue of a Class 1 or Class 2 medical certificate.

WHETHER MR HACKETT MEETS THE MEDICAL STANDARD FOR THE ISSUE OF A CLASS 1 OR CLASS 2 MEDICAL CERTIFICATE

1. A pilot must, pursuant to the relevant regulations, hold a current medical certificate appropriate for the licence sought. In this case, the relevant medical certificates are those referred to under the CASR as Class 1 and Class 2. These two certificates are dealt with under different regulations, found at Part 67 of the CASR. However, the same test applies in each case, and allows CASA and therefore the Tribunal 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.

2. We note by way of completeness that Mr Hackett was stood down from duty by Qantas medical officer Dr Ryan on the night of 23 March 2010 following a telephone call from Mr Redhead in Buenos Aires to Captain Anderson in Sydney. After Dr Ryan notified CASA, on 20 April 2010 of the fact Qantas had stood Mr Hackett down, CASA suspended Mr Hackett’s Class 1 and Class 2 medical certificates on 21 April 2010. CASA then issued Class 1 and Class 2 certificates with conditions to Mr Hackett on 22 October 2010, adding a further condition on 13 January 2011.

3. In order to decide whether Mr Hackett meets medical standard 1 and medical standard 2 for the issue of Class 1 and Class 2 medical certificates, we considered the application of relevant parts of tables 67.150 and 67.155. In doing so, we considered all the evidence before us.

Mr Hackett’s evidence regarding his alcohol consumption

1. Mr Hackett gave evidence about the alcohol he drinks, and did not deny that he had drunk a large amount of alcohol on the night of 22 March 2010. He told the Tribunal that he came from a culture of drinking in the RAAF. He also said that his current consumption was two glasses of wine with dinner perhaps every third day, and about three light beers before playing in his band, followed by a few drinks after the gig. He said that he does not consume more than six standard drinks.

Dr S Ryan, Medical Officer, Qantas Aviation Medical Services

1. Dr Ryan told us that after Mr Hackett’s return, she saw him for approximately one and a half hours on 30 March 2010. She said that he told her he could not remember anything which had occurred in Buenos Aires on the night of 22 March 2010. As already noted above, Dr Ryan stated in replies to questioning by Mr Hackett: … my own medical opinion after we spoke at length for one and a half hours was that you had very little recollection of an entire evening where we were all up in the middle of the night, and that was probably due to consumption of alcohol, (Trs 29 March 2011, page 170). Dr Ryan seemed to us to modify that when replying to questions by Mr Hackett regarding monitoring of his alcohol consumption. She stated to Mr Hackett:

   yours and my version of the discussion (of 30 March 2010), is somewhat different – but it was a very patchy evening for you, whether it was complete, you know, non-recollection or very patchy about that night, probably, as we both laughed about, related to a consumption of grappa and alcohol. (Trs 29 March 2011, page 192)

1. In reply to questions from Mr Hackett regarding whether Dr Ryan still thought he had a mental health or drinking problem, Dr Ryan replied that she had not been involved in his case for many months, and that she could not comment further. Dr Ryan said that she was satisfied Mr Hackett could fly with conditions on his medical certificates. She stated that notwithstanding Dr Phillips’ opinion that Mr Hackett no longer suffered a depressive illness, she considered it appropriate that Mr Hackett continue to consult Dr Phillips.

Dr P Navathe, Chief Medical Officer, CASA

1. In relation to tables 67.150 and 67.155, Dr Navathe wrote in his report dated 14 February 2011 that: the applicant has a personal history of problematic use of alcohol in addition to an established medical history of moderately severe depressive disorder. He illustrated that by referring to Dr Ryan’s report to CASA regarding Mr Hackett’s incident of 22 March 2010 in Buenos Aires, and a report of Dr Phillips of 11 May 2010 confirming that Mr Hackett may have consumed alcohol in a potentially hazardous manner … despite at the time of Dr Phillips’ assessment not exhibiting any symptoms or signs to suggest any alcohol related disorder.

2. Dr Navathe also commented on the criteria used for making an aeromedical decision with respect to an applicant who has a history of substance abuse, and the determination of whether a medically significant condition is safety-relevant. He referred to the definition of problematic use of substances, and concluded that binge drinking of alcohol such as exhibited by Mr Hackett in Buenos Aires is associated with a large number of personal health and welfare issues which he listed in his report.

3. Dr Navathe told us that CASA accepted Mr Hackett did not have an active alcohol problem, because if that were the case, he would not hold a licence to fly at all. He also stated that CASA accepted Dr Phillips’ opinion regarding the incident in Buenos Aires, that is, that Mr Hackett did not have a recurrence of his depressive illness.

4. Dr Navathe concluded at paragraph 66 of his report that:

   I consider the consumption of alcohol in the manner described in the incident in Buenos Aires constituted a hazard to the health and welfare of Mr Hackett himself and caused an occupational problem in that he was unfit to exercise the privileges of his licence – that is, he was unable to perform his rostered function as a second officer on the return flight to Australia because he was stood down from the flight deck by his employer.

5. In replies to questions regarding the role of a single elevated GGT reading, and Dr Phillips in his report of 10 June 2010 indicating that: I doubt a single mild elevation of GGT has much value on its own, particularly in the absence of elevation of other liver enzymes, Dr Navathe said that he accepted both the DAME and Dr Phillips’ opinions that Mr Hackett’s medical certificates should be reinstated, but said that no clinical judgement was cut and dried. He stated that further, no report is taken in isolation. Dr Navathe emphasised CASA’s rigorous overview of all the information, and its guarded approach in its decision making, and that results of blood tests would guide the degree and duration of monitoring.

6. Dr Navathe also referred in his report to Mr Hackett having suffered a moderately severe depressive disorder treated by Dr Phillips, and the aviation risks associated with that, which he listed in his report. Those risks, he opined, can be mitigated by the imposition of an appropriate monitoring regime, being conditions on Mr Hackett’s Class 1 and Class 2 medical certificates.

7. Dr Navathe also stated that he relied on the consultation Dr Ryan had with Mr Hackett on 30 March 2010 in which she recorded that Mr Hackett told her he could not recall anything of the night of 22 March 2010.

8. When asked by Mr Hackett whether he would have suspended him on the basis of Dr Phillips’ report of 12 April 2010, Dr Navathe answered in the affirmative, and referred to the last paragraph of that report. We noted that Dr Phillips had written: Whilst Mr Hackett could resume his normal flying duties immediately, I always prefer to take a conservative approach when dealing with pilots, keeping in mind the paramount issue of public safety. In the context of this, Qantas may wish to give Mr Hackett leave of absence until I can review him. Dr Phillips anticipated returning from a trip on 3 May 2010, and reviewing Mr Hackett after that date.

Dr Frei, Addiction Medicine Specialist

1. Dr Frei said that he could not find any record of significant alcohol or other substance abuse, other than tobacco. He also noted that Mr Hackett ceased flying for sometime, but that by February 2008, Dr Phillips had recommended consideration be given to his re-certification, and that by August 2009, he was discharged from psychiatric treatment.

2. Dr Frei referred to the incident in Buenos Aires on 22 March 2010, stating that it was difficult on the information available, to make detailed or specific comment about the incident. He said that he made an assumption that Mr Hackett’s alcohol consumption on that occasion was at a hazardous level, and that his behaviour while intoxicated raised significant concern. Dr Frei opined that: although there is justifiable concern about chronic alcohol use in safety sensitive workers, given the associated psychiatric, physical and cognitive morbidities, it is also clear that acute problems from single episodes of heavy alcohol use carry significant and specific impairment and risks. He discussed possible monitoring methods including reviews by treating doctors, biochemical monitoring and other reporting.

Dr P Haber, Specialist in Gastroenterology and Hepatology

1. Dr Haber’s report of 5 May 2011 was before the Tribunal as Exhibit A13. He stated that his clinical examination of Mr Hackett was unremarkable, and that there was absolutely no evidence of a mental disorder, or current alcohol use disorder. He opined that there was no evidence to suggest a further psychiatric opinion was desirable, and considered there was no need for continuing monitoring of alcohol beyond the 12 month period ending in June 2011.

2. Dr Haber also wrote, (as did Dr Phillips) regarding Mr Hackett’s preoccupation with his appeal before the Tribunal.

Dr J Phillips, Consultant Psychiatrist

1. We had reports of Dr Phillips before us; he also gave oral evidence. As we have already noted above, Dr Phillips treated Mr Hackett for a moderately severe depressive illness from 30 January 2008. He stated in his letter of 12 April 2010 to Dr Ryan that he had last seen Mr Hackett on 6 August 2009 when he attended for a routine review. Dr Phillips stated in that report that Mr Hackett had made an excellent recovery, he had been entirely free of psychological symptoms at a previous consultation, and was being withdrawn slowly and successfully from anti-depressant medication. Dr Phillips told us in his oral evidence that it was not unusual, and that about half the people who suffered a depressive illness (particularly those who suffered the illness without specific precipitants), recovered, and did not have further episodes. He said that the prognosis for Mr Hackett was therefore good.

2. Dr Phillips wrote that there was no reason why Mr Hackett should not be licensed to fly. He said that alcohol had not been a factor in Mr Hackett’s depressive disorder. He said in his oral evidence that Mr Hackett had a strong personality, but not a personality disorder.

3. Dr Phillips wrote in the letter of 12 April 2010 which he told us was his eighth report, that he saw Mr Hackett for an unscheduled consultation on 8 April 2010 as a result of the Buenos Aires incident, noting that Mr Hackett had a different version of events from that of Mr Redhead. Dr Phillips concluded that:

   Whatever occurred in Buenos Aires was an aberration in Mr Hackett’s recent life. .. Whilst Mr Hackett has a past history of a depressive disorder which has been in remission, there was nothing associated with the recent incident which makes me think that he was developing a further episode of depression…. While Mr Hackett has now returned to normal health and his mental state examination reflects this. He does not require any current psychiatric treatment. He probably will need to address his hazardous drinking however.

4. In his oral evidence Dr Phillips commented that what occurred in Buenos Aires with Mr Hackett may also have been influenced by the drinking over a period of 12 hours but also the change in circadian rhythms and fatigue. He noted from Captain Henwood’s report that Mr Hackett had in fact made a good recovery after some hours of sleep.

5. When asked about the quality of Mr Hackett’s recollection of the events in Buenos Aires, Dr Phillips said that he had been trying hard to put it altogether after a heavy night. When Mr Shields put to Dr Phillips that Dr Ryan had recorded Mr Hackett had no recollection of the night in Buenos Aires, Dr Phillips said that Dr Ryan had not raised that in her letter, adding that Mr Hackett may have dissociated, and that it was often painful to remember such events.

6. The next letter we have of Dr Phillips which was to Dr Ryan, is dated 11 May 2010. He said he had seen the report of Captain Henwood, noting that Captain Henwood did not find Mr Hackett’s presentation or behaviour to have been abnormal in any manner. He commented in his oral evidence that Captain Henwood, being present in Buenos Aires, was better informed than Captain Anderson who had been acting on Mr Redhead’s word.  Dr Phillips stated that:

   Mr Hackett’s problem, whatever it was, is now behind him. He does not suffer currently from any recognisable or diagnosable psychiatric disorder. He is not drinking excessively, or using drugs of any type. Mr Hackett is ready to resume his flying career. I have no hesitation in stating this, and I do not consider him a risk to public safety. 

7. Regarding Mr Hackett’s alcohol consumption, Dr Phillips stated that he had no clinical evidence that the Applicant drinks in a hazardous manner, or that he has an alcohol related problem, and did not think he needed to be enrolled in any alcohol treatment program or alcohol control process. On 11 May 2010, Dr Phillips also wrote to Dr Fitzgerald of CASA in similar terms regarding safety of the public.

8. On 10 June 2010 Dr Phillips wrote to Mr Hackett informing him that his Gamma-Glutamyl Transferase (GGT) was mildly elevated at 49U/L. Dr Phillips concluded by saying that he accepted Mr Hackett drank a little too much from time to time in social situations. He added: I doubt that a single mild elevation of GGT has much value on its own, particularly in the absence of elevation of other liver enzymes. On 17 June 2010 Dr Phillips informed Dr Ryan that he had received Mr Hackett’s latest pathology which appears to be reassuring.

9. On 13 July 2010, Dr Phillips wrote to Mr Hackett, telling him that he had noted the incident in Buenos Aires was an aberration, and informing Mr Hackett his recommendation had been that the Applicant could resume flying immediately. He added: It should be highlighted that I did not find you to suffer any recognisable or diagnosable psychiatric disorder at that time (7 May 2010). He also stated that he did not think there would be any benefit for Mr Hackett to participate in an alcohol program for pilots.

10. On 2 February 2011 Dr Phillips wrote to Mr Hackett stating that if CASA required him to have monthly consultations, then a monthly telephone consultation with a face to face review on a third monthly basis would suffice.

11. On 10 February 2011, Dr Phillips wrote to Dr Drane of CASA regarding Mr Hackett’s consultation of 10 February 2011, stating that: he could not be said to suffer currently from any recognisable or diagnosable psychiatric disorder. Specifically, he does not have any alcohol or drug related disorder. Dr Phillips wrote again to Dr Drane on 3 March 2011 in similar terms. Again on 5 April 2011, following a consultation with Mr Hackett, Dr Phillips wrote to Dr Drane in similar terms, adding that he does not require psychotropic medication of any type, and that he does not have any alcohol related health disorder.

12. A further letter of 9 May 2011 to Dr Drane confirmed that Mr Hackett was not drinking alcohol in a hazardous manner, that he was maintaining contact with Dr Haber, and that Mr Hackett had requested a 12 month absence from Qantas beginning 5 July 2011 in connection with the RAAF.

13. Dr Phillips concluded by stating that recognising that public safety is the paramount concern, he did not believe, that Mr Hackett was likely to place the public in danger in the course of his normal flying duties and added that he could find no current medical or psychiatric reason why Mr Hackett should not fly commercially or with the RAAF. He acknowledged that Mr Hackett was preoccupied with his appeal  before the Tribunal.

14. In his oral evidence Dr Phillips told us that he stood by what he had said in his reports, that Mr Hackett was fit to fly, and that public safety would not be at risk, further that he did not require participation in an alcohol management program.

The Tribunal’s Conclusions

1. We have considered the medical evidence specifically in relation to Tables 67.150, and 67.155. We are satisfied from the evidence of Dr Phillips, who treated Mr Hackett for moderately severe depressive illness on referral from his general practitioner from 30 January 2008, that Mr Hackett has made an excellent recovery from that illness. Dr Phillips’ opinion as related to Dr Ryan on 12 April 2010 was that when he last saw Mr Hackett on 6 August 2009, Mr Hackett had made an excellent recovery, he had been entirely free of psychological symptoms at a previous consultation, and was being withdrawn slowly and successfully from anti-depressant medication. He said that alcohol had not been a factor in Mr Hackett’s depressive disorder.

2. In relation to the episode of drinking in Buenos Aires, Dr Phillips’ opinion was:

   Whatever occurred in Buenos Aires was an aberration in Mr Hackett’s recent life. .. Whilst Mr Hackett has a past history of a depressive disorder which has been in remission, there was nothing associated with the recent incident which makes me think that he was developing a further episode of depression…. While Mr Hackett has now returned to normal health and his mental state examination reflects this. He does not require any current psychiatric treatment.

3. Dr Phillips, in successive letters written to Mr Hackett, Dr Ryan and CASA doctors, as noted above, and in particular on 12 April 2010, stated that:

   Mr Hackett’s problem, whatever it was, is now behind him. He does not suffer currently from any recognisable or diagnosable psychiatric disorder. He is not drinking excessively, or using drugs of any type. Mr Hackett is ready to resume his flying career. I have no hesitation in stating this, and I do not consider him a risk to public safety.

1. We also accepted the opinions of Drs Frei and Haber, Dr Haber stating that:

   … there was absolutely no evidence of a mental disorder, or current alcohol use disorder.

1. Dr Haber’s opinion was that there was no evidence to suggest a further psychiatric opinion was desirable, and considered there was no need for continuing monitoring of alcohol beyond the 12 month period ending in June 2011. Dr Frei suggested conditions be imposed.

2. For the sake of completeness we felt we needed to address Mr Hackett’s recollections of his episode of what can only be described as heavy drinking in Buenos Aires on the night of 22 March 2010. Captain Henwood was the first to address this when he wrote to Mr Miller, and reported Mr Hackett (when first awoken by him and Dr Kelly at 2:00 pm on 23 March 2010), as being lucid, no sign of disorientation or confusion although understandably bemused at our attendance, the reason for which he had no idea.

3. Mr Redhead wrote in his notes regarding Mr Hackett:

   He expressed surprise when I told him we had spent nearly 7 hours back at the hotel. He can only recall brief glimpses of events and appears to have lost some 4 hours of time. He seems to remember arriving back at the hotel and coming back up to my room but has compressed these events into a relatively short time frame. He also expressed surprise when I outlined some of the events detailed above as he has no recollection of them.

4. Dr Navathe stated that he relied on the consultation Dr Ryan had with Mr Hackett on 30 March 2010 in which she recorded that Mr Hackett told her he could not recall anything of the night of 22 March 2010.

5. Dr Phillips, when asked about the quality of Mr Hackett’s recollection of the events in Buenos Aires, said that he had been trying hard to put it altogether after a heavy night. Further, when Mr Shields put to Dr Phillips that Dr Ryan had recorded Mr Hackett had no recollection of the night in Buenos Aires, Dr Phillips said that Dr Ryan had not raised that in her letter, adding that Mr Hackett may have dissociated and that it was often painful to remember such events.

6. Mr Hackett told us at the hearing that he had a clear recollection of the events in Buenos Aires although they had occurred over a year ago. He gave an account of the amounts of alcohol both he and Mr Redhead had drunk. We do not intend to analyse that, suffice to say both men had drunk large amounts of alcohol, and that Mr Hackett was before the Tribunal as a consequence of concerns which arose for his safety and aviation safety.

7. We also take into account the opinion of Captain Henwood, not a doctor but a very experienced pilot and captain, whose evidence regarding the events in Buenos Aires is noted above. He told us that he would have been happy for Mr Hackett to operate the aircraft as scheduled, but realised that once he had been stood down, other arrangements had to be made.

8. Ultimately we can conclude that whilst Mr Hackett and Mr Redhead had a heavy night’s drinking on 22 March 2010, Mr Hackett appears to have made a quick recovery. We decline to comment on Mr Redhead’s situation as he is not the subject of these proceedings.

9. As to Tables 67.150 and 67.155, in regard to 1.4 and 2.4, mental fitness; we are satisfied that Mr Hackett has no established medical history or clinical diagnosis of psychosis, significant personality disorder or significant mental abnormality or neurosis. We are mindful, as already stated, that the Applicant suffered a depressive disorder in 2008 from which Dr Phillips opined he made an excellent recovery back in 2009.

10. As to problematic use of substances, alcohol was the only one relevant to our decision making (Table 67.150, 1.5). In his report of 12 April 2010, date, Dr Phillips stated that Mr Hackett probably will need to address his hazardous drinking … In subsequent correspondence with Dr Drane of CASA, dated 9 May 2011, Dr Phillips confirmed that Mr Hackett was not drinking alcohol in a hazardous manner, and noted that Mr Hackett was maintaining contact with Dr Haber (Exhibit A13). Dr Haber stated that his clinical examination of Mr Hackett in May 2011 was unremarkable, and that there was absolutely no evidence of a mental disorder, or current alcohol use disorder. He opined that there was no evidence to suggest a further psychiatric opinion was desirable, and considered there was no need for continuing monitoring of alcohol beyond the 12 month period ending in June 2011.

11. We noted also the report of Dr Frei in which he said that he made an assumption that Mr Hackett’s alcohol consumption in Buenos Aires was at a hazardous level, and that his behaviour while intoxicated raised significant concern. He discussed possible monitoring methods including reviews by treating doctors, biochemical monitoring and other reporting.

12. Dr Phillips concluded by stating that recognising that public safety is the paramount concern, he did not believe, that Mr Hackett was likely to place the public in danger in the course of his normal flying duties, and added that he could find no current medical or psychiatric reason why Mr Hackett should not fly commercially or with the RAAF. In his oral evidence Dr Phillips told us that he stood by what he had said in his reports, that Mr Hackett was fit to fly, and that public safety would not be at risk, further, that he did not require participation in an alcohol management program.

1. We were satisfied at the time of making our decision, and taking into account the medical opinions of Dr Phillips, Dr Frei and Dr Haber as well as the results of the monitoring Mr Hackett has had imposed since the October 2010 decision reinstating his medical certificates, that Mr Hackett’s alcohol consumption does not constitute a direct hazard to him or endangers the lives, health or welfare of others. We are satisfied that Mr Hackett’s drinking in Buenos Aires was excessive, and that it has triggered for him, a chain of events in order to monitor whether his behaviour is likely to endanger the safety of air navigation. We are satisfied that Mr Hackett meets the medical standard for the issue of a Class 1 or Class 2 medical certificate.

2. However, as the paramount consideration is the safety of air navigation, and in order to ensure that Mr Hackett does not compromise the safety of air navigation, we intend to continue with the imposition of various conditions on his medical certificates.

CONDITIONS ON MR HACKETT’S MEDICAL CERTIFICATES

1. In order to consider which conditions should be imposed on Mr Hackett’s medical certificates, we again took into account the medical evidence which was before us. Dr Navathe told us that CASA accepted Mr Hackett did not have an active alcohol problem because if that were the case, he would not hold a licence to fly at all. He also stated that CASA accepted Dr Phillips’ opinion regarding the incident in Buenos Aires, that is, that Mr Hackett did not have a recurrence of his depressive illness. He expressed the opinion that CASA in imposing conditions on Mr Hackett’s medical certificates, was monitoring him, and that future reports such as the results of blood tests would lead to decisions regarding the duration of the monitoring.

2. Dr Navathe referred in his report to Mr Hackett having suffered problematic use of alcohol, and having suffered a moderately severe depressive disorder treated by Dr Phillips, and the aviation risks associated with those, which he listed. Those risks, he opined, could be mitigated by the imposition of an appropriate monitoring regime, being conditions on Mr Hackett’s Class 1 and Class 2 medical certificates.

3. Dr Navathe said in response to Dr Thorpe’s questions about the conditions imposed on Mr Hackett’s medical certificates, that CASA considered them reasonable, and when appropriate, they could be removed or changed. He said that CASA would identify from as many sources as possible, confirmation that Mr Hackett did not have a problem with alcohol. He said CASA would seek to rely on medical reports such as those of Dr Phillips. As to the cost to Mr Hackett of having the tests, he considered that it was reasonable given the balance of cost to the individual versus safety of the flying public. He added that in any case Mr Hackett did not have to pay for the blood tests or consultations with the Qantas Medical Officer.

4. Dr Ryan said in reference to the conditions imposed on the issue of Mr Hackett’s medical certificates, that the alcohol program to which she referred in her evidence was a Qantas in-house program, and not to do with CASA. She maintained the view that a three monthly report from an addiction medicine specialist was a suitable condition for Mr Hackett to observe. She spoke in support of the other conditions imposed upon Mr Hackett’s medical certificates, but added, noting that Dr Phillips had cleared Mr Hackett to fly, that whether he required a monthly report from Dr Phillips was a matter for Dr Phillips. However, she agreed Mr Hackett should remain under the care of Dr Phillips. She also said that she had not been involved with Mr Hackett’s case for some time.

5. We were satisfied from Dr Phillips’ evidence that although Mr Hackett suffered a moderately severe depressive illness and been treated by Dr Phillips from early 2008, he has made an excellent recovery. We accepted Dr Phillips’ opinion in regard to the episode in Buenos Aires that Mr Hackett’s problem, whatever it was, is now behind him. He does not suffer currently from any recognisable or diagnosable psychiatric disorder. He is not drinking excessively, or using drugs of any type.

6. We have noted Dr Frei and Dr Haber’s opinions above, noting Dr Frei opined that possible monitoring methods including reviews by treating doctors, biochemical monitoring and other reporting would be appropriate, whereas Dr Haber was satisfied that there was no need for continuing the monitoring of alcohol beyond June 2011.

7. The monthly medical reports from the Qantas in house doctor have been clear, and the blood tests undertaken have indicated a single elevated GGT reading (in June 2010). We accept Dr Phillips who in his report of 10 June 2010 indicated that: I doubt a single mild elevation of GGT has much value on its own, particularly in the absence of elevation of other liver enzymes.

8. In reliance on the medical evidence, in particular that of Dr Phillips regarding Mr Hackett’s psychiatric condition, we are satisfied that Mr Hackett does not suffer currently from any recognisable or diagnosable psychiatric disorder. We are however with the paramount concern for aviation safety, concerned that he remain monitored in order to maintain that safety. Accordingly, we intend to vary the reviewable decision, and impose certain conditions on Mr Hackett’s Class 1 and Class 2 medical certificates.

FOR NOTING

1. The hearing in this matter took place over three days in March 2011, and was listed to resume on 18 May 2011 to hear Dr Phillips’ oral evidence and closing submissions. In correspondence dated 4 May 2011 CASA notified the Tribunal that pursuant to Dr Navathe’s observation of Mr Hackett during the hearing, he had formed the view that CASA required further psychiatric evidence in addition to that of Dr Phillips.

2. CASA notified the Tribunal that it had briefed Dr Chris Bench a forensic psychiatrist of Hamilton NSW to comment on Mr Hackett’s psychiatric state based on written documentation which was before the Tribunal, including the reports of Dr Phillips and Mr Redhead’s testimony. CASA stated that it did not require Dr Bench to examine Mr Hackett.

3. The Tribunal conducted a Directions Hearing in order to ascertain whether the resumed hearing of 18 May 2011 should proceed as listed, or whether the matter should be stood over pending the report of Dr Bench. Mr Hackett was unable to attend the Directions Hearing, and was represented by Ms Thomas, a legal practitioner, and senior associate at Duncan Cotterill. Mr Shields attended on behalf of CASA.

4. Both parties expressed the desire to proceed with the hearing as planned. I agreed, and on 18 May 2011, the evidence of Dr Phillips was taken, and closing submissions were made. We record without further comment that Dr Phillips was displeased that a further psychiatric report had been commissioned.

DECISION

1. Pursuant to section 42B of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses Mr Hackett’s application for review, (matter 2010/3211), of the decision of CASA dated 21 April 2010 which suspended his Class 1 and Class 2 medical certificates.

2. In matter 2010/5528, the Tribunal varies the decision under review dated 22 October 2010 as amended on 13 January 2011 by replacing the conditions imposed on Mr Hackett’s Class 1 and Class 2 medical certificates with the following conditions:

   A)Mr Hackett must provide to CASA the following 3 monthly blood test results;

   §MCV

   §GGT

   §CDT

   B)Mr Hackett must provide to CASA a three monthly progress report from the Qantas Medical Officer.

   C)Mr Hackett must provide a three monthly progress report from his psychiatrist, Dr Phillips.

   D)Mr Hackett’s Aviation Medical Certificates should be endorsed ‘Renew by CASA Only’. This alerts the DAME that only Aviation Medicine can revalidate the certificate after assessment of the required reports.

I certify that the 127 preceding paragraphs are a true copy of the reasons for the decision herein of, Senior Member Ms G Ettinger, and Dr M E C Thorpe, Member.

Signed:   ...............[sgd].............................................................

Associate

Dates of Hearing  28, 29, 30 March 2011; 18 May 2011
Date of Decision  29 June 2011
The Applicant  Mr J Hackett, self represented
Respondent’s Counsel             Mr B Shields

Respondent’s Solicitor              Ms G Bennett, Civil Aviation Safety Authority, Legal Services Group