HARVEY and CIVIL AVIATION SAFETY AUTHORITY
[2010] AATA 733
•27 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 733
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1834
GENERAL ADMINISTRATIVE DIVISION ) Re ADAM HARVEY Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Miss E A Shanahan, Member Date27 September 2010
PlaceMelbourne
Decision The Tribunal sets aside the decisions under review and substitutes its decision that the applicant does not and never has suffered from epilepsy. He has had one provoked episode of neurocardiogenic syncope. He is to undergo a tilt test for vasodepressor neurocardiogenic syncope. If this test is negative a Class 1 and/or 2 medical certificate is to be issued to enable him to pursue licencing as a pilot. If the test is positive, medical certification must be denied. .................[signed]...................
Member
CIVIL AVIATION – Civil Aviation Regulations – denied medical certification at Class 1 or Class 2 – medical history of episodes of loss of consciousness – recent syncopal attack – expert opinion precludes a diagnosis of epilepsy and cardiac cause for syncope – decision varied
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 42D
Civil Aviation Safety Act 1988 (Cth) ss 9A, 11
Civil Aviation Safety Regulations 1998 (Cth) regs 67.015, 67.150, 67.155, 67.190
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
Council of Civil Service Unions v Minister for Civil Service [1985] AC 374
Re Hall and Civil Aviation Safety Authority [2004] AATA 21
Re Mulholland and Civil Aviation Safety Authority [2006] AATA 452; [2007] AATA 1952; [2009] AATA 171
Re Window and Civil Aviation Safety Authority [1999] AATA 525
REASONS FOR DECISION
27 September 2010 Miss E A Shanahan, Member 1. This matter was heard on 10 December 2009 and remitted to the Respondent under s 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act) with the directions that the Respondent obtain the Applicant’s entire medical records from the three hospitals in which he had been treated and having examined these records reconsider its decision in light of the content of these records. These records were eventually received. In one instance a hospital administrator had provided only those parts of the records she thought relevant. At the Tribunal’s instruction the entire record was forwarded. Further delay was experienced by the unavailability of Dr Fitzgerald and Dr Navathe in March 2010. The resumed hearing took place on 5 July 2010.
2. Mr Harvey has been denied medical Class 1 and/or Class 2 certification by the Civil Aviation Safety Authority (CASA) based on three medical events over an eight and a half year period wherein he was observed to have transient lowering of his conscious state. He has been extensively investigated and the opinions of three Neurologists, one Neurosurgeon and a Cardiologist obtained. With one exception the specialist opinions are that Mr Harvey is fit to hold a Class 1 and 2 certificate.
3. CASA’s prime role in the medical certification of pilots is to protect the public and air navigation as a whole. The criteria for certification are contained in the Civil Aviation Safety Regulations 1998 (the CASR).
4. The denial of Mr Harvey’s application to CASA was based on the lack of a definitive diagnosis in the medical events of 2001, 2003 and 2009 leading to consideration of four differential diagnoses. These were:
a. Neurocardiogenic Syncope
b. A seizure disorder
c. A biochemical or Infective cause
d. Loss of consciousness due to exhaustion.
5. The decision maker, Dr David Fitzgerald, was unable to rule out any of these differential diagnoses on the evidence before him on 15 April 2009 and reaffirmed his opinion and decision after the provision of the complete hospital records concerning each event. The affirmation decision was issued on 8 April 2010.
6. The Tribunal was provided with documents lodged pursuant to s 37 of the AAT Act (T Documents). Mr Harvey was self represented and Ms Gretchen Bennett, principal lawyer for CASA, appeared for the Respondent. On 10 December 2009 Mr Harvey, Dr David Fitzgerald and Dr Pooshan Navathe gave evidence before the Tribunal. At the resumed hearing of 5 July 2010 Dr David Fitzgerald gave evidence.
7. Mr Harvey lodged the following documents:
Royal Melbourne Hospital Discharge Summary of 9 September 2009 (Exhibit A1)
Report of Dr Daniel Doyle dated 6 August 2009 (Exhibit A2)
Fatigue Management During Operations Manual (Exhibit A3)
Complex Case Management File (Exhibit A4)
Sleep Deprivation EEG dated 15 October 2009 (Exhibit A5)
Report of Professor O’Brien dated 30 March 2010 (Exhibit A6)
Letter of instruction sent to Professor O’Brien (Exhibit A7).
The Respondent tendered the following:
T Documents (Exhibit R1)
Report of Dr William Wallis dated 10 November 2009 (Exhibit R2)
Report of Dr William Wallis dated 24 November 2009 (Exhibit R3)
Statement of Dr David Fitzgerald dated 3 December 2009 (Exhibit R4)
Statement of Dr Pooshan Navathe dated 4 December 2009 (Exhibit R5)
A collection of documents including the hospital medical records from the North Palmerston Hospital; Good Health Whanganui in New Zealand and the Royal Melbourne Hospital (Exhibit R6)
Report of Dr John Cameron dated 19 August 2009 (Exhibit R7).
8. In his evidence, Mr Harvey described the events of 10 May 2001 and 23 August 2003 in detail. On both occasions he was engaged in 14 day Army manoeuvres working 17 to 18 hours per day, carrying heavy packs and digging trenches in simulated war conditions. On the first occasion he felt unwell with flu like symptoms and exhaustion for two days prior to his collapse. He attended the Army Medical Treatment Centre and while sitting on a bed awaiting examination felt flushed and dizzy. He noted he was sensitive to light. He passed out and when consciousness returned he noted that an intravenous line was being inserted. He was transferred to North Palmerston Hospital by helicopter. He felt much improved after a good night sleep and was discharged the next day back to his unit and full duties.
9. The 2003 episode occurred 11 days into a 14 day Army manoeuvre once more involving long hours and extreme physical exertion. Rations had been supplied by the New Zealand Air Force and were not of the normal high carbohydrate content provided by the Army. Mr Harvey believed this collapse had occurred at approximately 11pm as he was returning to his camp site after delivering a message across a distance there and back of 800 metres. He felt fatigued as he had only slept for half an hour in the previous 24 hours. On his way back to his camp site he felt faint and dizzy, fell to his knees and started to remove his heavy army gear (17 kilograms in weight) then lost consciousness. He estimated he was unconscious for 15 to 20 seconds and believes he hit his head when he fell forward. His colleagues came to his assistance, removed his webbing belt and an ambulance was called. He was driven across country in a Land Rover to rendezvous with the ambulance. Mr Harvey estimated that the time from his collapse to his arrival in hospital was of the order of 45 minutes. He described himself as being alert but fuzzy and very sleepy during this period of transfer. He felt much improved following a good night sleep on the night of admission to hospital. He remained in the Good Health Whanganui Hospital for two and a half days following which he was discharged back to his unit to collect his gear before proceeding to Wellington one day ahead of the rest of his unit.
10. Mr Harvey said that on 9 September 2009 he had undergone a flecainide challenge test at the Royal Melbourne Hospital to eliminate the possibility that he suffered from Brugada’s Syndrome (non-ischaemic ST elevation on ECG associated with ventricular arrhythmias leading to syncope). On the day, he had fasted from 6am and arrived at the Royal Melbourne Hospital at 8.30am for the test. At 11.30am a member of the nursing staff had attempted to insert an intravenous needle into a vein on the anterior surface of the radial side of his right wrist. Mr Harvey said the area immediately began to bubble (i.e. swell). He felt woozy and lost consciousness for 17 seconds according to what he was told by the nurse after the event. On regaining consciousness he felt clammy and sweaty. He said he was monitored for 30 minutes by electrocardiograph and oximetry and an intravenous line was inserted into a vein in the cubital fossa (elbow). The test was performed. Mr Harvey said he had informed the Cardiology Registrar of the events occurring prior to the flecainide test.
11. In cross-examination Mr Harvey was asked why Mr R McFarlane, Neurosurgeon (T3, p22), had reported that he, Mr Harvey, had no recollection of the events of 23 August 2003. Mr Harvey said Mr McFarlane had asked him very few questions and had relied mainly on the content of the letter of referral from Dr I Khan (T8, p66). A similar question was posed regarding Mr Harvey’s interview with Dr Wallis. Dr Wallis, a Neurologist, had been given a copy of the discharge summary from the Royal Melbourne Hospital reporting the events of 9 September 2009. Mr Harvey said Dr Wallis had not asked any questions about the syncopal episode presumably because he had the hospital report.
12. The Respondent also queried whether Mr Harvey had ever had a lumbar puncture and the nature of his brother’s neurosurgery. Mr Harvey informed the Tribunal that he had not had a lumbar puncture and his brother had undergone neurosurgery at the age of two for a growth in his anterior fontanelle.
13. Dr Navathe is the Principal Medical Officer of CASA. His statement of 4 December 2009 (Exhibit R5) detailed his experience as an Occupational Health Physician, an Associate Professor in Aviation Safety and his service in the Indian Air Force. In his evidence on 10 December 2009 he described CASA’s decision making process in detail. Initially both he and Dr Fitzgerald had thought Mr Harvey’s syncopal attack of 9 September 2009 was unprovoked but having heard Mr Harvey’s evidence, Dr Navathe said further medical evidence and information regarding this episode was necessary and in the interim the decision regarding certification should stand.
14. Dr Fitzgerald is an Occupational Health Physician, a pilot with a commercial licence and the Senior Medical Officer of CASA. He had provided a statement (Exhibit R4). Dr Fitzgerald made the primary decision on 15 April 2009 assessing Mr Harvey as failing to meet the CASR as he had suffered two periods of loss of consciousness for which there was no satisfactory medical explanation and which may recur (Exhibit R4, p2). Since that decision was made Mr Harvey had suffered the episode of syncope in September 2009, this event reinforcing Dr Fitzgerald’s opinion that Mr Harvey did not qualify for a Class 1 or Class 2 medical certificate in view of the lack of a definitive diagnosis in any of the three events and the differences of opinion obtained from medical consultants. As previously stated the possibly diagnoses Dr Fitzgerald considered were:
a. Neurocardiogenic Syncope
b. A seizure disorder
c. Biochemical or Infective causes
d. Loss of consciousness due to exhaustion.
15. Dr Fitzgerald was not prepared to rule out any of these differential diagnoses but when asked by the Tribunal which was the least likely he nominated a biochemical or infective cause. In cross-examination by Mr Harvey on 10 December 2010 Dr Fitzgerald maintained his opinion that none of the differential diagnoses had been ruled out despite the tests and opinions of various specialists.
16. Dr Fitzgerald gave evidence again on 5 July 2010. In the interval between the hearings he had reviewed the records obtained from the three hospitals. He found Mr Harvey’s description of the 2003 event inconsistent with the statement of Ms Toland dated 27 January 2010 (Exhibit R6) and the medical history recorded by Mr McFarlane, in his report of 15 January 2004 (T8, p68), that Mr Harvey did not recall the 2003 events that had just occurred. Ms Toland’s description, recalling events six or more years previously, covered a period of 20 to 30 minutes of lowered conscious state in Mr Harvey and included the perceived need to give Mr Harvey two breaths of mouth to mouth resuscitation or as described by Dr Fitzgerald expired air resuscitation.
17. Dr Fitzgerald considered there was insufficient objective third party evidence to determine the cause of the third event of 9 September 2009. He thought it unusual that a person of Mr Harvey’s age and fitness levels would experience episodes of loss of consciousness following such provocating experiences. Dr Fitzgerald affirmed the previous decision of 15 April 2009. On 5 July 2010 Dr Fitzgerald confirmed the content of his decision following which he was cross-examined at some length by Mr Harvey.
18. Mr Harvey sought an explanation of what he perceived to be inconsistencies in CASA’s decision making processes based on the provision of Class 1 and 2 medical certificates (albeit with conditions) to Mr Terrence Mulholland despite Mr Mulholland’s well documented episodes of syncope, some of which had resulted in motor vehicle accidents (Re Mulholland and Civil Aviation Safety Authority [2006] AATA 452). Dr Fitzgerald agreed that Mr Mulholland’s medical history with respect to syncopal attacks of unknown cause was similar to Mr Harvey’s, the difference being that Mr Harvey was starting out and had not yet learnt to fly. He agreed that the decisions were inconsistent. Dr Fitzgerald was unable to offer any further explanation regarding the inconsistencies as he was not employed by CASA when the Mulholland decisions were made. He agreed with Mr Harvey that there was a bias against new applications compared to those pilots already certified for Class 1 and 2 medical fitness. Dr Fitzgerald maintained that despite the expert evidence to the contrary there remained a possibility that Mr Harvey suffered from epilepsy particularly as Ms Toland had estimated Mr Harvey’s duration of impaired consciousness at about 20 to 30 minutes. However as there was reasonable doubt that Mr Harvey had suffered a seizure, Dr Fitzgerald had approached his decision from the aspect of a loss of consciousness without a demonstrated cause.
19. Dr Fitzgerald explained that the Authority did not have sufficient funding to follow up all medical opinions or chase down those doctors attending at the 2001 and 2003 episodes and had not sought further details from the Royal Melbourne Hospital as the records were considered sufficient despite the lack of any entries by the nursing staff. He was of the opinion that given the passage of time the nurses might have no memory of the events of 9 September 2009. The opinion of Dr Cameron, Neurologist, had been sought after Mr Harvey lodged his application for review to the Administrative Appeals Tribunal. It appeared that this was the usual practice.
20. Mr Harvey raised the question of differing criteria for medical certification in light of Australia being a signatory to the Chicago Convention of Civil Aviation and thereby subject to the International Civil Aviation Organisation (ICAO) Manual of Civil Aviation Medicine which states: once potentially serious mechanisms of syncope have been ruled out, medical certification can be considered. In regard to seizures the Manual states:
An individual must experience recurrent (i.e. at least two) seizures to qualify for a diagnosis of epilepsy.
…
With normal studies and no risk factors, recurrence risk after four years approximates that of the normal population. Medical certification is appropriate at this juncture.
21. Dr Fitzgerald was acquainted with the ICAO recommendations. He contrasted the European requirements which prevented certification at any time after one epileptic seizure. Australia requires a ten year seizure free period before considering certification and this was based on medical research and statistics. Dr Fitzgerald did not expand on the research or the statistics or their sources. Dr Fitzgerald believed the United States Federal Aviation Agency also used the ten year rule.
22. Dr Fitzgerald had not found the reports of Mr Harvey's designated aeronautical medical examiner (DAME) to be particularly useful and did not consider febrile seizure a likely cause of Mr Harvey's 2003 episode of decreased conscious state.
23. Following the 2003 episode, Mr Harvey was referred to a neurosurgeon, Mr McFarlane, and underwent an electroencephalogram (EEG) and MRI scanning of the brain, both of which showed not significant abnormality. Mr McFarlane thought the likelihood of Mr Harvey having had an epileptic fit would be extremely slim (T3, p23). Mr McFarlane reviewed Mr Harvey on 28 February 2009 with a further MRI performed on 11 February 2009. He concluded that there was no evidence of a brain abnormality and no contra indication to Mr Harvey obtaining a pilot's licence for helicopter or fixed wing aircraft (T8, p65).
24. The respondent obtained opinions from Dr Wallis and Dr Cameron both of whom are neurologists. Dr Cameron believed a seizure disturbance is highly probable and although a syncopal type disturbance is highly improbable further cardiac investigation was indicated. He regarded Mr Harvey as being medically unfit to hold a flying licence.
25. Dr Wallis was of the opinion that epilepsy could be excluded (Exhibit R2) but in view of a lack of a definitive diagnosis, he could not recommend Mr Harvey as being neurologically fit to hold a Class 1 or a Class 2 Certificate. Dr Wallis had based his opinion on the documentation but subsequently spoke with Mr Harvey, obtained more details of the 2001 and 2003 episodes and the results of more recent cardiological investigations. This led him to change his recommendation. He believed Mr Harvey was neurologically fit to hold a Class 1 and a Class 2 Flyer's Licence (Exhibit R3).
26. Dr Doyle is a cardiologist. He investigated Mr Harvey for neurocardiogenic syncope. Physical examination of Mr Harvey was normal. Over the years Mr Harvey had several ECGs, some of which showed a partial right bundle branch block (RBBB). A treadmill exercise test was negative as was the flecainide challenge test for Brugada syndrome. Holter monitoring was performed and was entirely normal. Dr Doyle was unable to find any cardiac reason prohibiting Mr Harvey from obtaining a helicopter licence (Exhibit A2). Mr Harvey underwent a sleep deprivation EEG on 15 October 2009. This was normal (Exhibit A5). Various blood tests have been performed over the years and are of limited assistance in terms of reaching a definitive diagnosis.
27. The T documents contain reports from New Zealand Army sources regarding the 2001 and 2003 episodes of decreased consciousness. These are in the form of original clinical presentations and letters of referral to hospitals in New Zealand and summaries received from these hospitals after Mr Harvey's discharge. The full hospital clinical records from the two New Zealand hospitals and the Royal Melbourne Hospital have since been received and will be considered in detail.
28. Mr Harvey's account of the three episodes of decreased consciousness have been covered above.
29. Dr O'Neill saw Mr Harvey just after midday on 10 May 2001 and obtained a history of one day of sore throat, recent photophobia and neck and back pain and stiffness. Mr Harvey felt cold and was shivering. Physical examination was entirely normal and in particular there were no abnormal neurological signs. Power in all limbs was normal. However the Glascow Coma Score (GCS) was estimated to be 12 to 13 out of 15. Mr Harvey's pulse was 100 beats per minute, temperature 37.4 and blood pressure recorded as 140/100 with an oxygen saturation of 100% on room air. His blood pressure rapidly reduced to 120/70 and his pulse to 80. These observations were recorded between 1220 and 1419 hours while he was awaiting helicopter transfer to North Palmerston Hospital. An intravenous line was established, saline administered at the rate of 200 millilitres per hour and intravenous Ceftriaxone 1 gram, ordered six hourly, was commenced. Dr O'Neill described Mr Harvey's presentation as bizarre and attributed his illness to fatigue or a psychological response. It was felt appropriate to exclude meningitis, hence the transfer to hospital. Dr O'Neill’s recorded diagnosis was fatigue/collapse, R/O [rule out] meningitis.
30. Mr Harvey was assessed at North Palmerston Hospital at 1600 hrs. The symptoms noted on admission were laryngitis, sore neck, back and joints. Night before losing voice. Felt hot in am. Consciousness decreased/drowsy. No headache, photophobia etc. No signs of meningitis. The diagnosis made was that of a viral illness. It was noted that intravenous Ceftriaxone (a broad-spectrum antibiotic) had been given by the army doctor before transfer and this is presumably why tests for infection such as the lumbar puncture and culture were not done. The antibiotic Augmentin was later prescribed in case of a possible bacterial infection and the intravenous Ceftriaxone ceased.
31. Mr Harvey spent the evening of 10 May 2001 watching television in the hospital lounge following which he slept well. He was discharged back to his army unit on 11 May 2001.
32. The blood tests performed in hospital revealed a normal full blood examination and slightly abnormal liver function tests in that the liver enzymes ALP (alkaline phosphatase) and AST (aspartate transferase) were slightly elevated. Creatine Kinase level was elevated at 542 (normal less than 215). Creatine Kinase is a measure of high muscle activity and/or damage.
33. During Mr Harvey's very short hospital stay his temperature, pulse, respiratory rate and blood pressure recordings were normal. Blood cultures taken at the base medi corps unit did not reveal any growth of bacteria.
34. The Tribunal notes that the enzyme AST is elevated in strenuous skeletal muscle activity and the ALP can be raised from its source in bones which are physically stressed or actively growing. Mr Harvey was 18 years old at the time.
35. The second episode on 23 August 2003 occurred in a similar setting to the first that is, after prolonged army manoeuvres associated with high level of physical activity and sleep deprivation.
36. Ms Kimberley Toland provided a statement (Exhibit R6) describing this episode and the ten to twelve days of army manoeuvres leading up to it. She was in the same platoon training group as Mr Harvey. She described the physical activities as draining with the period of sleep being at the maximum five hours per night.
37. Ms Toland had witnessed part of the episode. She stated that at approximately 9.00 pm on 23 August 2003 one of her male colleagues who left the Cam-net found Mr Harvey on the ground face down outside the door. Mr Harvey was not responding to questions other than making moaning noises as if trying to talk. Another soldier monitored Mr Harvey's pulse and breathing, the latter being described as light. Ms Toland devised a means of communication by instructing Mr Harvey to make a moaning noise if the answer to her question was yes. This he did. Mr Harvey was said, at one stage, to have stopped breathing and was given two breaths by the soldier monitoring his pulse following which Mr Harvey was fine again with his light breathing. The colleagues placed Mr Harvey in a sleeping bag while the platoon commander drove to a farmhouse to telephone for an ambulance following which Mr Harvey was taken by four wheel drive to rendezvous with the ambulance. Ms Toland estimated that the entire episode had taken 20 to 30 minutes. She concluded her statement by saying that all of the platoon members were all ready to pass out at any moment from fatigue, but Adam just happened to be the one that did.
38. The ambulance officers who transported Mr Harvey to hospital recorded the comments of his colleagues. On route Mr Harvey complained of head and neck pain and sensitivity to light. Initially the ambulance officers recorded a GCS of 7 out of 15 at 2118 hours and that Mr Harvey was responsive to pain. He improved during transport. His temperature was recorded as 39.3 degrees Celsius by the ambulance officers with an oxygen saturation of 100% on room air. At the time of arrival at hospital the GCS was recorded as 15/15 at 2215 hours that is, over a period of 48 minutes it had returned to normal.
39. The resident medical officer who assessed Mr Harvey on his arrival in the emergency department at 2215 hours noted the above history. Examination was normal except for a temperature of 39.3, respiratory rate of 26, pulse of 102 beats per minute and a normal neurological examination except for the right pupil reactivity to light being slightly sluggish compared to the left. (Tribunal note: Mr Harvey has been well documented in defence records as suffering from astigmatism of the right eye. This would affect the rate of response to light). Chest and cervical spine X-rays were reported as normal and an ECG showed only sinus tachycardia. Blood tests performed in the emergency department were normal except for a serum potassium of 3.2, pH of 7.35 and an oxygen saturation of 80.8%. A full blood examination showed an elevated white cell count due to a neutrophilia. Blood cultures taken on admission were subsequently negative for any growth. A CT scan of the brain was performed in the emergency department and this was normal. An intravenous line was inserted and Mr Harvey received one litre of saline statum followed by a further litre over a period of two hours. He was also given two grams of Ceftriaxone intravenously. The resident medical officer in the emergency department made the provisional diagnosis of ? seizure ? meningitis.
40. Mr Harvey remained febrile until 0315 hours on 24 August 2003. He recovered rapidly and all his observations returned to normal. Antibiotic therapy was continued. Mr Harvey was recorded as having no recollection of the events of the previous day. He was seen by a physician, Dr Khan, on 24 August 2003 and commenced on oral antibiotics. He was discharged on 26 August 2003 with referral to a neurologist in Wellington.
41. Dr Khan's letter of referral to Mr McFarlane, summarises the events but was inaccurate to the extent that it states that Mr Harvey had a single spike of fever in the emergency department. It also stated that Mr Harvey's GCS took several hours in the emergency department to reach 15 over 15. (The GCS score was actually 15/15 at 2215 hours having been 7/15 as assessed by the ambulance officers at 2118 hours that is, less than one hour).
42. Mr McFarlane saw Mr Harvey early September 2003 and arranged an EEG and an MRI brain scan these investigations being based on the possibility that Mr Harvey had had a grand mal seizure. The EEG, while showing mild generalised non-specific disturbance of cerebral activity, did not reveal focal or lateralising features or epileptiform activity. The MRI was reported on as normal.
43. In January 2004 Mr McFarlane considered that the likelihood of an epileptic fit was extremely slim and found Mr Harvey fit to drive a motor car and to be posted overseas.
44. Mr Harvey sought Mr McFarlane's opinion again after CASA's decision. Mr McFarlane reviewed him on 28 February 2009 (T8, p64) and found no central or peripheral neurological abnormality. A further MRI had been performed on 11 February 2009 (T7, p50) showing a 5 millimetre pineal cyst (also present in the MRI of 2004) and a mucosal retention cyst in the right maxiliary sinus. The scan was otherwise normal. Mr McFarlane opined that the 2003 collapse was neither epileptiform or of sinister significance and could find no reason why Mr Harvey should not be able to obtain a pilot licence to fly helicopters or fixed wing aircraft.
45. Following Mr Harvey's application for a review of their decision, CASA sought a neurological opinion from Dr Cameron (Exhibit R7). Dr Cameron did not see or examine Mr Harvey. His opinion was based on the medical reports available prior to 19 August 2009 and these did not contain the full hospital records. In Dr Cameron's opinion the first and second episodes of impaired conscious state during which Mr Harvey's GCS was depressed with a very slow to recover (he was unaware that it was less than one hour) made an underlying epileptical disturbance highly probable and perhaps triggered by sleep deprivation and physical exhaustion on both occasions. Syncopal attacks were considered to be highly unlikely. Dr Cameron interpreted the raised CK and AST levels noted with the first episode as supporting an epileptiform seizure although he also considered that these could be increased after physical activity.
46. Dr Cameron recommended Mr Harvey be assessed by a cardiologist, have an Echocardiogram, and Holter monitoring as well as an EEG, sleep deprivation EEG and EEG telemetry and in the event of a further event should undergo drug screening.
47. As no definite diagnosis had been made on either occasion Dr Cameron found Mr Harvey medically unfit to hold a flying licence.
48. The respondent sought the opinion of Dr William Wallis, a New Zealand neurologist, based on the medical documents then available. He did not see Mr Harvey. Dr Wallis reported on 10 November 2009 (Exhibit R2) and appears to have been unaware of the episode of loss of consciousness on 9 September 2009. Dr Wallis having assessed the records stated: I think that epilepsy can be excluded. He considered there were two likely explanations of Mr Harvey's blackouts namely (Exhibit R2):
1.Syncope or vasovagal syncope provoked by physical stress and associated with an undetected head injury, producing more prolonged drowsiness and confusion than one would normally associate with syncope. . . .
2.Exogenous metabolic encephalopathy caused by either fraudulent intoxication from sedatives or by endozepine stupor/coma. . . .
49. On the information provided by CASA, Dr Wallis was unable to recommend Mr Harvey as being neurologically fit to hold a Class 1 or 2 Certificate.
50. Dr Wallis subsequently spoke with Mr Harvey by telephone and obtained a more detailed clinical history following which he stated he (Exhibit R3):
. . .felt confident that the correct explanation of his turns is a benign form of syncope provoked by a combination of a mild illness and strenuous physical circumstances, leading to vasovagal syncope on the first occasion and vasavagal on the second occasion, probably associated with a head injury. There is no evidence of any other explanation for these attacks. These events occurred under exceptional circumstances, which are unlikely to be present flying an aircraft.
He has had more than adequate investigations for underlying brain disease, . . . as well as extensive cardiac investigations. All of these have been unremarkable. In my opinion, he is neurologically fit to hold a Class I and Class II flier's licence. . . .
51. Mr Harvey pursued the investigations recommended by Dr Cameron and in addition obtained further opinions from Associate Professor Williams, a neurologist at the Alfred Hospital in Melbourne and Professor O'Brien, Professor of Neurology at the Royal Melbourne Hospital and Melbourne University and the Head of Epilepsy.
52. Associate Professor Williams concluded Mr Harvey's blackouts probably were multifactorial in aetiology and related to dehydration, hypoglycaemia or a cardiac arrhythmia and that epilepsy was unlikely. He recommended cardiac assessment and investigation similar to those recommended by Dr Cameron and referred Mr Harvey to Dr Daniel Doyle, a cardiologist.
53. Professor O'Brien saw Mr Harvey at the request of Mr Harvey's general practitioner. Professor O'Brien obtained a history from Mr Harvey and also had the earlier medical reports before him. His neurological examination of Mr Harvey was normal and he noted the EEGs previously performed, a normal sleep deprived EEG he had arranged and reported on, two normal MRIs of the brain (the pineal cyst being of no significance) and the negative results of the cardiological investigations.
54. Professor O'Brien contacted Dr Wallis by telephone to discuss Mr Harvey's case. Professor O'Brien opined that all three episodes were syncopal and that (Exhibit A6):
There is certainly no clinical evidence that they were epileptic in nature. The circumstances of the events, with the presyncopal symptoms and the rapid return to consciousness with no evidence of confusion, combined with the lack of convulsive activity, would make an epileptic loss of consciousness extremely unlikely.
Professor O'Brien concluded:
. . . that there is no clinical evidence that Adam has, or ever has had, epilepsy and that in my opinion he is medically fit to apply for a pilot's licence.
55. Professor O'Brien suggested that Mr Harvey could have a three hour sleep deprived video EEG as further confirmation and see another of Professor Clarke's senior epileptology colleagues.
56. Mr Harvey has not proceeded to video EEG in view of the cost of the study and the time involved. Further second opinions have not been obtained.
57. Dr Daniel Doyle, cardiologist, assessed Mr Harvey on 5 August 2009 (Exhibit A2) and found that: His current examination and history do not suggest any significant cardiac disorder. Several ECGs had shown a partial right bundle branch block and a normal QT interval. Subsequently Mr Harvey underwent Holter monitoring which was normal and an accelerated Bruce Protocol Treadmill exercise test which was negative. The ECG QT shortening was normal. The Flecainide challenge to exclude Brugada syndrome (propensity to ventricular arrhythmias associated with prolonged QT interval) was negative for the syndrome.
58. Dr Doyle had no hesitation, pending the above test being normal, recommending Mr Harvey for any duties or activities including obtaining a helicopter licence.
59. In summary expert neurological opinions have been obtained from one neurosurgeon and four neurologists and four of these consider epilepsy to be extremely unlikely as there was no clinical evidence to support such a diagnosis. Similarly the cardiological opinion and investigations under challenge have shown no evidence of ischaemic heart disease, abnormal cardiac function or arrhythmia.
60. Mr Harvey's New Zealand Army medical records were provided in part in the T-documents and in more detail in Exhibit R6. These contained references to and entries concerning the event of 2001 and 2003 and treatment for traumatic events and minor illnesses. The statement that in August 2003 he had a Grand Mal seizure is regrettable as there is no evidence to support that statement. On two occasions, the first on 6 July 2001 and then again on 4 September 2002, Mr Harvey received medical attention for sore throat and aches and pains in the neck, back and joints and on both occasions was found to have pustular tonsillitis. On the second occasion his temperature was elevated to 38.9 centigrade. The Tribunal is unable to find any record of any doctor examining his tonsils during the episode of May 2001 and that of August 2003.
61. In 2004 Mr Harvey was assigned to a US Marine Corp in Afghanistan where he was deployed for a period of six months and did not suffer any adverse health problems.
LEGISLATION
62. Section 9A of the Civil Aviation Act 1988 (the Act) provides:
(1)In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
. . .
63. Applicants for Class 1 and Class 2 medical certificates must demonstrate that they have no safety-relevant condition capable of producing a functional incapacity or risk of incapacitation. Regulation 67.155 of the CASR states at 2.1:
2.1 Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation
(a) an abnormality;
(b) a disability or disease (active or latent);
(c) an injury;
(d) a sequela of an accident or a surgical operation
Regulation 67.015 defines safety-relevant as meaning:
For the purposes of this Part, a medically significant condition is safety-relevant if it reduces, or is likely to reduce, the ability of someone who has it to exercise a privilege conferred or to be conferred, or perform a duty imposed or to be imposed, by a licence that he or she holds or has applied for.
64. The CASR also require that a holder of a flight crew licence must hold a current medical certificate appropriate to the licence. In the case of a private pilot licence, the appropriate medical certificate is a Class 1 or Class 2 medical certificate.
65. In light of Mr Harvey's medical history the relevant criteria for medical standard 1 relate to the nervous system (reg 67.150 at Table 1.7). These are:
Nervous System
1.7 Has no established medical history or clinical diagnosis of:
(a) a safety-relevant disease of the nervous system; or
(b) epilepsy; or
(c)a disturbance of consciousness for which there is no satisfactory medical explanation and which may recur
66. The criteria for medical standard 2 are the same and are contained in Table 67.155.
SUBMISSIONS
67. Ms Bennett provided a written submission outlining the legislation and its intent, Mr Harvey's medical history and the various expert medical opinions.
68. The respondent contended that Mr Harvey was not a good historian with respect to his medical history given inconsistencies in the history he gave to Mr McFarlane and Dr Khan as opposed to the medical history he gave to Professor Williams and Professor O'Brien. It was submitted that Mr Harvey's description of the 2003 event did not tally with that of Ms Toland.
69. Ms Bennett addressed the risk of Mr Harvey becoming incapacitated if he obtained a pilot's licence concluding that there was an increased risk given his three episodes of loss of consciousness. She also considered the meaning of the term likely when used in the context of the issue of aviation medical certificates relying on the Tribunal decision in Re Window and Civil Aviation Safety Authority [1999] AATA 525 at [60] where the Tribunal said:
Having regard to the need to protect public safety while having regard to a person's entitlement to pursue his or her ambitions, we consider that the word "likely" means "a substantial or real and not remote chance". That is not a matter which can be assessed on statistical likelihood and certainly does not mean "more likely than not", "odds on" or "a more than 50% chance of a thing happening". To adopt those latter three meanings would, in our view, be to place too little weight on the protection of public safety and too much on an individual's entitlements.
70. Similarly, in Re Hall and Civil Aviation Safety Authority [2004] AATA 21 at [45] the Tribunal stated:
As the Tribunal stated in Re Windows (supra), the assessment of what is "likely" cannot be based on statistical likelihood. In this context, it is a matter of weighing up the requirements of air safety with the applicant's interest in the safe exercise of the privileges and performance of the duties associated with holding a private pilot's licence. The Tribunal's view is that in June 2003, given the medical information available to CASA, a decision to impose a condition on Mr Hall 's Class 2 Medical Certificate was reasonable given the risks associated with his heart condition when considered in the context of air safety. In terms of the medical standard in Schedule 1, Part 1 of the old regulations, and whether his heart condition was likely to interfere with the safe exercise of his privileges or performance of his duties associated with his holding a private pilot's licence, there was a real risk, albeit a small one. When issues of air safety are under consideration, a small risk may be sufficient to trigger the need to take appropriate action to address the risk. This was the case here.
71. Also in Re Mulholland and Civil Aviation Safety Authority [2007] AATA 1952 at [65]:
Whether Mr Mulholland has a high risk or a low risk of losing consciousness while flying an aircraft is simply irrelevant. The fact is that he has a risk of incapacitation which is significantly different to the remainder of the aviator population who do not suffer from syncope or any other safety-relevant medical condition. In our view the risk of incapacitation is real and not an imaginable or fanciful risk nor is it a remote risk.
72. Finally, the respondent contended that the Tribunal could not be satisfied to the requisite standard that Mr Harvey's failure to meet the Class 1 and Class 2 medical standards was not likely to endanger the safety of air navigation.
73. Mr Harvey submitted that he was medically fit to hold a pilot's licence and met the requirements for both Class 1 and 2 certification.
74. He contended that CASA had failed to follow up and/or obtain additional evidence available from the three hospitals; obtain witness statements; had breached the requirements of reg 67.190 which provided that a reconsideration of the primary decision must not be undertaken solely by the maker of the original decision; had been inconsistent in the application of the Regulations in its decision-making process (quoting the Mulholland recertification) and as a result had made an unreasonable decision.
75. Mr Harvey referred to an address given by His Honour Justice Garry Downes on 24 September 2008 on the topic of unreasonableness wherein he described the test, as paraphrased by Mr Harvey, as being the need for facts sufficient to convince the reasonable man. Mr Harvey contended that the evidence before CASA would fail this requirement.
76. In addition he outlined the Wednesbury tests (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 at 229]) of unreasonableness as:
-the making of erroneous findings of fact
-failure to give proper consideration
-not meeting the duty to enquire.
77. Mr Harvey argued that he had undertaken all possible steps to mitigate any perceived risk. All expert opinion, with the exception of Dr Cameron, had been to the effect that he was unlikely to have ever suffered epilepsy. Additionally the Australian Army had passed him as fit for enlistment.
78. As Australia was a signatory to the Chicago Convention Mr Harvey contended that the Manual of Civil Aviation Medicine Preliminary Edition 2008 devised by the International Civil Aviation Organisation, Doc 8984/AN/895 approved by and published under the authority of the Secretary-General and entitled Part 3. Medical Assessment (neurological disorders) was relevant to his application.
79. The relevant sections of the Manual he addressed were:
1. Transient Global Amnesia
2. Syncope
3. Seizures.
Mr Harvey noted that the Manual considered that benign and often situational syncope, a diagnosis made after all known causes had been excluded and after an observation period of up to 12 months had occurred, should result in medical certification being considered.
80. Epilepsy was defined as a tendency toward recurrent unprovoked seizures requiring at least two seizures to qualify for such diagnosis. Mr Harvey read from the Manual which states that:
Medical certification is appropriate following a single seizure when all studies are normal and there are no risk factors for recurrence. Consideration should not be given until a four year seizure-free and medication free observation period has been achieved. With normal studies and no risk factors recurrence risk after four years approximates to that of the normal population. Medical certification is appropriate at the juncture.
81. Mr Harvey sought payment by the respondent of all his reasonable costs should the Tribunal find the respondent's decision to be unreasonable.
82. On completion of his submissions, the Tribunal requested Mr Harvey to provide it with a copy of all the manuals to which he had referred. The respondent indicated that they were in possession of these manuals.
TRIBUNAL'S DELIBERATIONS
83. CASA is required to regard the safety of air navigation as the most important consideration (s 9A of the Act). The same Act provides that any individual who performs a duty essential to the operation of Australian aircraft during flight must also hold a medical certificate issued under the CASR. A Class 1 medical certificate is required for airline transport pilots, commercial pilots or flight engineers. A Class 2 medical certificate is the requirement for a private pilot licence or any person who wishes to fly solo.
84. In the year 2009 approximately 42,000 Australian Civil Aviation Medical Certificates were issued and approximately 8500 of these were first time certifications (Exhibit R4).
85. The onus placed on the medical staff of CASA is obviously considerable particularly as there are only four full time medical officers all of whom are occupational health physicians. The Tribunal is aware that nominated specialist consultants such as nephrologists, cardiologists, urologists and neurologists are available and paid to provide advice to the permanent medical staff of CASA. Dr Fitzgerald informed the Tribunal that funding concerns limited the acquisition of specialist opinion until an applicant lodged an appeal for review following a CASA decision to deny them medical certification. Any pre-decision follow up of medical data was similarly restrained.
86. The medical norm in reaching a diagnosis is to consider all possible differential diagnoses based on the individual's clinical history, physical examination findings and the results of clinically indicated investigations. Where a definitive diagnosis is not possible the approach taken is to exclude, as far as is possible, serious and life threatening disease processes. This has been the approach taken by the neurologists Dr Wallis, Associate Professor Williams and Professor O'Brien, the neurosurgeon Mr McFarlane and the cardiologist Dr Doyle. Dr Cameron, a CASA nominated specialist neurologist, and Dr Fitzgerald have understandably approached the diagnostic dilemma from the diametrically opposite position on the basis that as no definitive diagnosis has been made in Mr Harvey, he presents a safety-relevant risk.
87. The CASR provide for such an approach. Regulation 67.150 Table 1.7(c) and regulation 67.155 Table 2.7(c) both address a disturbance of consciousness for which there is no satisfactory medical explanation and which may recur as precluding medical Class 1 and 2 certification. The operative word, in the Tribunal's opinion, is the term satisfactory and satisfactory in medical terms.
88. Dr Navathe in his statement of 4 December 2009 (Exhibit R4) outlined the legal framework for regulatory aviation medicine. On an international basis the so called Chicago Convention (the 1944 Convention on International Civil Aviation) has provided the basis for unification of standardisation of civil aviation law. Australia is a signatory to the Chicago Convention and where a contracting State does not adhere to these standards it must notify the International Civil Aviation Organisation (ICAO) of the differences between the ICAO standards and those of the member States. According to Dr Navathe the standards contained within Chapter 6 of Annex 1 addressing personnel licensing have generally been implemented into Australian Law. The Tribunal notes that there are some 83 pages listing differences between the Australian national legislation and the ICAO standards and recommended practices. Fortunately only two of these 83 pages relate to medical provisions for licensing and none of these are directly relevant to Mr Harvey's postulated medical conditions.
89. Dr Navathe described the systematic process followed by CASA's medical officers and provided a summary of the condition known as neurocardiogenic syncope and the particular risks this attracts in terms of pilot's licensing. This will be considered in more detail further in these deliberations.
90. Mr McFarlane, having seen Mr Harvey on two occasions and after reviewing the 2004 and 2009 MRIs of his brain, was convinced that there was no neurological contra indication to Mr Harvey qualifying for a pilot's licence.
91. Associate Professor Williams favoured a diagnosis of syncope as he did not consider epilepsy likely.
92. Dr Wallis, having spoken at length with Mr Harvey after his first report, wrote on 24 November 2009:
I am now confident that the correct explanation of his turns was a benign form of syncope provoked by a combination of a mild illness and strenuous physical circumstances, leading to vasovagal syncope on the first occasion and vasovagal syncope on the second occasion, probably associated with a head injury. There is no evidence of any explanation for these attacks. These events occurred under exceptional circumstances, which are unlikely to be present flying an aircraft.
93. Professor O'Brien stated his opinion quite categorically:
I would support that there is no clinical evidence that Adam has, or ever has had, epilepsy and that in my opinion is medically fit to apply for a pilot's licence.
94. Dr Cameron's opinion was given without the opportunity to assess Mr Harvey in person and without access to the above opinions or the complete medical records. He was thus unable to exclude epilepsy. He considered syncope to be unlikely.
95. As no person, medically trained or otherwise has seen Mr Harvey suffer a seizure or what is commonly termed a fit, or reported the common sequelae of fitting such as incontinence of urine and faeces and tongue biting and in light of the majority expert opinion, the Tribunal is satisfied that Mr Harvey does not suffer from epilepsy.
96. Dr Navathe appears to have favoured a diagnosis of syncope as that is the only provisional diagnosis he has considered in detail in his report (Exhibit R4). Dr Doyle has not found any underlying cardiac condition predisposing Mr Harvey to syncopal attacks.
97. Is there an explanation, based on the evidence before the Tribunal, of Mr Harvey's three episodes of impaired consciousness?
(a)Episode 1. There is insufficient medical data to make a definitive diagnosis. Be that as it may the illness was apparently not considered serious as Mr Harvey was discharged from hospital in under 24 hours and without medical follow up being advised or arranged. Investigations done during this episode were consistent with extreme muscle activity. The episode of diminished consciousness (Glasgow Coma Score (GCS) was 13 out of 15) occurred in a camp medical centre. Had Mr Harvey suffered a grand mal type seizure this would have been recorded. Syncope results in unconsciousness and this was not reported.
(b)Episode 2. This event was characterised by a decreased conscious state and fever of 39.3 degrees centigrade on the background of intense prolonged physical exertion and exhaustion. Other non specific symptoms such as aches and pains in the neck, back and joints were as in the earlier event. A fever of this degree is not a feature of either epilepsy or syncope but may provoke epileptiform seizures in children and occasional syncope in any age group as well as mental confusion. For example, the often described delirium associated with high fevers. None of the in hospital investigations performed indicated other than a response to an infective process and all investigations for epilepsy even although they were delayed, were negative.
98. On both occasions Mr Harvey's GCS was decreased but the method of calculation was not recorded. There are three aspects to determining the GCS. The examiner is to record eye opening; verbal response to command and painful stimuli and motor activity which are measured on a scale of 1 to 4, 1 to 5 and 1 to 6 respectively. Given Ms Toland’s evidence it is difficult to accept a score of 7/15 as calculated by the ambulance officers on 23 August 2003 with a return to 15/15 in less than an hour. The ambulance officers described Mr Harvey as responding to painful stimuli and mumbling. Both episodes occurred in a setting of physical exhaustion confirmed by Ms Toland with respect to the second episode.
99. On both occasions Mr Harvey was given, as an initial treatment measure, intravenous Ceftriaxone. Ceftriaxone is a broad spectrum cephalosporin available only in the intravenous form and restricted in its use in Australia to severe infections such as septicaemia. It is administered, preferably, after positive cultures have shown the bacterium to be sensitive to Ceftriaxone. The likelihood of positive tissue and blood culture after such administration can be greatly decreased.
100. The physical examination of Mr Harvey on both occasions was incomplete. In particular an examination of the mouth, head and neck to exclude tonsillitis, from which he suffered in 2001 and 2002, was not performed.
101. The third episode occurred in hospital under observation and on Mr Harvey's evidence, which the Tribunal accepts as being reliable, was provoked by the inappropriate placement of an intravenous access line on the lower aspect of the right wrist in close proximity to radial artery and median nerve. There is no nursing record or description of this event as there should be but it was perceived to be of sufficient severity to trigger a MET call. The MET medical registrar team leader has recorded that nursing staff said that Mr Harvey was very pale before he lost consciousness and that the period of loss of consciousness was seven seconds. Despite the lack of documentation by nursing staff, this episode, as described by Mr Harvey and documented by Dr Michael Low, is an almost classical description of a provoked vasovagal syncopal attack (a faint) or in the ICAO terminology benign and often situational syncope.
102. While there are similarities in the three episodes to the extent that they all involved a diminished conscious state the differences both medical and situational are such that a definite diagnosis of the type of syncope, excluding a cardiac cause, cannot and has not been made. All episodes occurred in a setting that should not occur in flight, that is, severe physical exhaustion, high fever or failed venipuncture.
103. Dr Navathe at paragraph 60 of his report dated 4 December 2009 wrote:
However, sometimes the situation can arise, where clinical information, investigations, and specialist opinions do not lead to an unequivocal diagnostic formulation. In these situations, a point is sometimes made, that nothing more can be done, and therefore a medical certificate must be issued.
It was however CASA that needed to be satisfied that issuing a medical certificate would not adversely affect the safety of air navigation.
104. Dr Navathe went on to consider syncope in detail and in doing so referred to Harrison's Text Book of Internal Medicine (Harrison's Principles of Internal Medicine) for the definition and other aspects such as the incidence, diagnosis and investigation of syncope before addressing the aero-medical risk assessment of an applicant who has syncope. According to Dr Navathe's sources up to one third of the population experience an attack of vasovagal neurocardiogenic syncope in their lifetime. The Tribunal notes Harrison's Text Book quotes the incidences as three percent of the population. He said the condition may be provoked by fatigue, emotional disturbance or anxiety, dehydration, pain, visual stimuli, vomiting and diarrhoea and heat and humidity. As attacks may recur and cluster, and can be triggered as above, Dr Navathe considered disturbances of consciousness due to syncope to result in the total failure to meet the criteria for Class 1 and 2 medical certification.
105. Dr Navathe considered performance of a tilt test to be essential in the diagnosis of neurocardiogenic syncope. The Tribunal member has consulted her own copy of Harrison's Text Book (16th Edn with internet updates). The text recommends tilt testing in high risk settings such as pilots. It is more likely to be positive in vasodepressor syncope where reduced sympathetic activity results in vasodilatation, than in vasovagal syncope where there are both parasympathetic effects, such as bradycardia, and reduced sympathetic effect producing vasodilatation. Positive tilt tests are reproduceable in 62 to 88 percent of persons and negative tests are reproduceable in 85 to 100 percent of persons.
106. Dr Navathe wrote that the aviation environment is one that is marked by fatigue due to disrupted sleep and circadian stress, at times warm temperatures and humidity differences in places that are visited. There is no documented evidence of Mr Harvey having lost consciousness on 10 May 2001, 23 August 2003 or 9 September 2009, that is no observer documented loss of consciousness. Dr O'Neill (Exhibit R6) described Mr Harvey as opening his eyes on command, speaking when asked and moving his limbs to commands. Ms Toland described Mr Harvey when found on 23 August 2003 as collapsed but moaning as if trying to talk and able to communicate with her by making a moaning noise to indicate a positive reply to her questions.
107. The event of 9 September 2009 was presumably witnessed but not recorded by the nurse concerned. This was indeed an episode of syncope but one that was provoked by an inappropriately placed venipuncture. The doctor recording the incident did so when they saw him at which time he was fully recovered after seven seconds of unconsciousness.
108. Australia, being a signatory to the Chicago Convention, is said to accept the medical assessment standards of the ICAO. Section 11 of the Act states:
CASA shall perform its functions in a manner consistent with the obligations of Australia under the Chicago Convention . . .
109. In this era of frequent international air passenger transport the need for and expectations of the flying public for such international standards is obvious. The Part 3 Medical Assessment Section of the ICAO Manual of Civil Aviation Medicine 2008 states:
Fortunately syncope is mostly benign and often situational. Medical certification is appropriate when the benign nature of the event has been identified and potentially serious mechanisms of syncope have been considered and excluded.
…
Once potentially serious mechanisms of syncope have been ruled out, medical certification can be considered.
It also says:
A three month period might be appropriate when one or two fully explained benign events have occurred over time whereas multiple recurrent episodes requiring treatment may warrant a six to 12 months period of observation before medical certification is considered. Restriction to multicrew operations and non-safety-sensitive air traffic control duties, at least for a period, may further mitigate the risk.
110. On the evidence before it the Tribunal identifies one episode of syncope in 2009 which required no treatment. There is no evidence to support a greater than 1% risk of recurrence. Mr Harvey is required to undergo a tilt test and if this is negative medical certification of a Class 1 and 2 status should follow. If the tilt test is positive certification should be denied.
111. Mr Harvey's submission that CASA's decision-making has been inconsistent in its approach to himself compared to that of Mr Terrence Mulholland is well founded. Mr Mulholland reportedly suffered repeated syncope attacks, occurring every one to two months which had on occasion resulted in motor vehicle accidents. Despite this he had not undergone the level of investigation to which Mr Harvey has been subjected. Mr Mulholland continues to fly albeit with certain restrictions in the form of flying with a co-pilot and when conducting his teaching activities is required to inform his flying instruction students of his health status and the attendant risks (Re Mulholland and Civil Aviation Safety Authority [2006] AATA 452 and Re Mulholland v Safety Authority [2009] AATA 171). In his evidence Dr Fitzgerald agreed that such an inconsistency existed.
112. Mr Harvey also argued that CASA's decision was so unreasonable that should his application for review by this Tribunal be successful he should be awarded costs covering his expenses and in particular his medical expenses. While there were delays in the conduct of the reconsideration these resulted from Dr Navathe and Dr Fitzgerald being involved in other CASA duties. The Tribunal is of the opinion, rightly or wrongly, that the Wednesbury rules cannot apply in the safety relevant arena of civil aviation regulation. CASA’s decision does not meet Lord Green's suggestion that to be unreasonable the decision should be absurd or outrageous or that of Lord Diplock in Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 equating unreasonableness with irrationality.
113. Of some concern is the apparent breach of reg 67.190(3) which requires that a reconsideration of a decision must not be made solely by the officer who made the decision being reconsidered. Dr Fitzgerald made both decisions and there was no evidence before the Tribunal, either in Dr Fitzgerald's reconsideration decision nor in his oral evidence, that indicated his decision had been reached with the collaboration of any other CASA medical officer. Regulation 67.190 refers to reconsiderations requested by the person to whom CASA has refused to issue a medical certificate. This appears to relate to an internal review process similar to that conducted by authorised review officers in other government departments. The Regulations do not address the situation where the AAT remits the reviewable decision for reconsideration. The Tribunal is of the opinion that the same principles should apply. However, the primary decision and the internal reconsideration were both made by Dr David Fitzgerald in consultation with a panel of CASA doctors. The reconsideration as directed by the Tribunal appears to have been made, by Dr Fitzgerald alone. The reconsideration decision of 8 April 2010 is far more detailed than that of the internal reconsideration of 15 May 2009 (T11, p73). The Tribunal does not see this as a substantive issue given the doubt as to whether a reconsideration directed by the Tribunal should attract the same regulations as an internal review.
114. The Tribunal sets aside the reviewable decision and the reconsideration of 8 April 2010 and substitutes its decision that Mr Harvey does not, and never has, suffered from epilepsy. He has suffered one provoked episode of neurocardiogenic syncope. He is to undergo a tilt test for vasodepressor neurocardiogenic syncope. If this test is negative a Class 1 and/or Class 2 medical certificate is to be issued to enable him to pursue licensing as a pilot. If the test is positive medical certification must be denied.
I certify that the 114 preceding paragraphs are a true copy of the reasons for the decision herein of:
Miss E A Shanahan, Member
Signed: ..........................[signed]..............................................
Associate Grace HorzitskiDates of Hearing 10 December 2009 and 5 July 2010
Date of Decision 27 September 2010
Advocate for the Applicant Self-represented
Solicitor for the Respondent Ms G. Bennett, Civil Aviation Safety Authority
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