Healy and Civil Aviation Safety Authority

Healy and Civil Aviation Safety Authority [2017] AATA 741 (19 May 2017)
Division:GENERAL DIVISION
File Number: 2016/6064
Re:Daniel Healy
APPLICANT

AndCivil Aviation Safety Authority
RESPONDENT

DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:19 May 2017
Place:Perth

The decision under review is affirmed.
.........................[sgd].................................
Deputy President Dr Christopher Kendall
CATCHWORDS
CIVIL AVIATION – Class 1 and Class 2 medical standards – risk to the safety of air navigation – whether conditions can be issued that ameliorate any risk posed – Attention Deficit Hyperactivity Disorder – use of Dexamphetamine to control condition – decision under review affirmed
LEGISLATION
Civil Aviation Act 1988 – sections 3(1), 9A, 20AB(1),
Civil Aviation Safety Regulations 1998 – regulations 11.056, 61.410, 61.415, 67.015, 67.150, 67.155, 67.180,
CASES
Re Hall and Civil Aviation Safety Authority [2004] AATA 21
Re Window v Civil Aviation Safety Authority (1999) 56 ALD 316
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
19 May 2017
BACKGROUND

Daniel Healy, age 30, wishes to obtain a Commercial Pilot Licence. On 13 April 2016, Mr Healy applied for a Class 1 and Class 2 medical certificate from the Civil Aviation Safety Authority (“CASA”). As part of that application process, Mr Healy undertook a medical examination by a Designated Aviation Medical Examiner (“DAME”), Dr Mary Cadden.
During this medical examination, Mr Healy stated that he was taking Dexamphetamine for the medical condition Attention Deficit Hyperactivity Disorder (“ADHD”). A series of medical investigations occurred thereafter (discussed further below).
On 2 November 2016, a delegate for CASA refused to issue Mr Healy a Class 1 or a Class 2 medical certificate (the “Reviewable Decision”). Relevantly, the delegate held:
Due to your Attention Deficit Hyperactivity Disorder requiring medication, I have decided that you do not meet the above Class 1 and 2 Medical Standard.
As you do not meet the Medical Standard, CASA may only grant you a Class 1 and 2 Medical Certificate if it is satisfied that, the extent to which you fail to meet the applicable medical is not likely to endanger the safety of air navigation.
Risks to air safety
Your medical condition is associated with a number of potential symptoms and side effects which may adversely affect your ability to safely exercise the privileges of your pilot licence including (but not limited to):
•Premature and ill-considered actions
•Restlessness and excess of movement causing distraction
•Impaired split attention affecting multi-tasking and situational awareness
•Side effects of medication (this list reflects some of the side effects, and is not complete)
omood changes such as depression or irritability
otremor or palpitations
orestlessness, nervousness or insomnia
oheadache
odizziness
Conditional Certificate
I have decided that there is a real and substantial risk that your condition requiring treatment and their [sic] symptoms or side-effects will interfere with your ability to safely pilot aircraft and therefore create an unacceptable risk to the safety of air navigation. I have also concluded that no conditions imposed upon your medical certificate would adequately mitigate the risks to air safety posed by your medical condition.
Decision
The medical information provided to date, indicates to me that, you have demonstrated evidence of Attention Deficit Hyperactivity Disorder requiring medication.
I have therefore decided to refuse to issue you with a Class 1 and 2 Medical Certificate in accordance with regulation 67.180(7) of the CASR. (R3)
ISSUES
As correctly outlined by CASA in a Statement of Facts, Issues and Contentions dated 17 March 2017, in determining whether Mr Healy should be issued a Class 1 or Class 2 medical certificate, the Tribunal must determine:
a)whether Mr Healy meets the medical standard for the issue of a Class 1 or Class 2 medical certificate;
b)if not, whether the extent to which Mr Healy fails to meet those standards is likely to endanger the safety of air navigation; and
c)if so, whether any conditions can be imposed upon a medical certificate which will ameliorate the threat posed to air safety by Mr Healy’s failure to meet the Class 1 and Class 2 medical standard.
EVIDENCE BEFORE THE TRIBUNAL
This matter was heard in Perth on 30 March 2017. Mr Healy attended in person and was self-represented. CASA was represented by Ms Swain.
The Tribunal had before it the following evidence:
·A 163 page set of T-Documents (T1 to T53);
·A Statement of Facts, Issues and Contentions from Mr Healy dated 16 January 2017;
·A Statement of Facts, Issues and Contentions from the Authority dated 17 March 2017;
·A document titled “Loss of Control and Collision with Terrain involving Cessna 182” dated 23 September 2013;
·Independent Medico-Legal Report from Dr Benjamin Duke dated 3 October 1986;
·Statement of Dr Sanjiv Kumar Sharma dated 17 March 2017 with attached medical journal articles;
·Written Closing Submissions from CASA dated 30 March 2017; and
·Written Closing Submissions from Mr Healy dated 12 April 2017.
The Tribunal also heard oral evidence from Mr Healy, Dr Sharma, Dr Duke and Dr Paterson.
CASA provided a detailed summary of the medical evidence in the T documents at paragraphs 7 to 14. Mr Healy did not dispute that summary. The Tribunal notes, relevantly, as follows in that regard.
Dr Roger Paterson has been Mr Healy’s psychiatrist since early 2014. He diagnosed, and has treated, Mr Healy’s ADHD since that time. The Tribunal has reviewed the various letters from Dr Paterson outlining Mr Healy’s treatment with the medication dexamphetamine and Mr Healy’s positive response to that medication at T6, T7, T8, T9, T13 and T29.
A report by Dr Paterson dated 16 July 2016 (T32) states:
Daniel sees me annually for renewal of his medication for Attention Deficit Hyperactivity Disorder (ADHD) which is controlled with dexamphetamine (a mixture of immediate and slow release formulations).
1.Onset of his condition: I first met him on the 14 February 2014 and diagnosed his ADHD at that time. As is typical, his condition was life-long, becoming a problem in early primary school when he was meant to be applying himself to his studies, but found this very difficult.
2.Symptoms including any suicidal ideation, psychosis, mania or anxiety: He had the typical symptoms of ADHD: overactivity, impulsivity, inattention, distractability, disorganisation, emotional lability, stress intolerance, inefficiency and struggling to achieve full potential. There was no evidence of any suicidal ideation, psychosis, mania or anxiety.
3.Psychosocial and functional impact on the condition: His ADHD caused problems both at home and at school/work. He found it difficult to complete tasks and function effectively. He was often in conflict with authority figures as he found it difficult to comply with rules and regulations. His academic performance in year 11 and 12 was poor; leaving high school without any distinction. That said, he enjoyed his aviation experience at his school which had a specialist aviation program (Greenwood SHS) and in fact did get his restricted pilot’s licence. This is typical of ADHD people – if they are interested in something, they can concentrate on it, often hyperfocusing. Unfortunately, subjects that are a little bit less interesting are ignored completely.’
6.Treatment, response to treatment and side effects: After many years of struggling in the workplace without getting any qualifications, he eventually decided that he needed to get things sorted out. With treatment, he has made great advances, eventually passing a shift supervisor certificate. And he is doing well with his aviation studies over the last 6 months. He is currently on compounded dexamphetamine 25mg controlled release capsules, one daily, and very occasional dexamphetamine 5mg tablets as a top up/alternative. These improve his focus and general efficiency with no side-effects.
7.DSM-5 diagnosis – detailing inclusive and exclusive criteria and any diagnosed co-morbidities: As mentioned, he had the typical DSM-5 symptoms, scoring 5/9 inattention and 9/9 hyperactivity-impulsivity symptoms which was well above the diagnostic threshold. There were no associated comorbidities.’
9.Date of cessation of medication: The medication has not been ceased, and l consider that it will be necessary for several years yet while he completes his studies.
11.Prognosis: l consider his prognosis to be good whichever way his ADHD goes. He may grow out of it over the next few years and not need medication. Or if it does continue, it is well controlled to the level where he functions normally.
A report was also provided by Dr Mary France Cadden dated 17 August 2016 (T41 at 117) which states:
His main problems with ADHD seem to have been poor concentration rather than impulsiveness and he can concentrate very well now with the medication. He manages to drive heavy good vehicles at night and has a good working profile. He denies side effects from the medication and, on reading the literature, these are not common.
On 30 October 2016, Dr Karen Brooker also provided a report (T48) in which she stated:
Thank you for referring Daniel Healy for neuropsychological assessment. I understand that he wishes to gain approval from the Civil Aviation Safety Authority to complete pilot certification. They have apparently raised questions regarding his use of ADHD medication.
…
Medical
Mr. Healy reported that he had not suffered any major psychiatric or medical illnesses or had surgeries which may have negatively affected his cognition. He described minor loss of hearing in his right ear. Completion of the Pittsburgh Sleep Quality Index was not indicative of any sleep disorder. Mr Healy reports that he is a social drinker, occasionally smokes and does not use recreational drugs. He has a diagnosis of Attention Deficit Hyperactivity Disorder. His only current prescribed medication is 25mg slow release dexamphetamine which he takes in the morning.
Mr Healy lives independently and is not currently in a relationship.
BEHAVIOURAL OBSERVATIONS
Mr. Healy arrived on time for all three appointment sessions. He was dressed casually and appropriately. He appeared to enjoy the assessment process, cooperated politely and was fully engaged at all time.
TEST ADMINISTRATION
Mr. Healy attended two testing sessions. On the first day he was assessed he reported that he had taken his ADHD medication as per his normal routine. A week later Mr Healy attended a second session where he reported that he had not taken his ADHD medication. This report therefore examines Mr. Healy’s cognitive performance over these two sessions.
All tests were administered in a standardised manner.
A short break in testing was provided on each day.
…
Summary of Test Performances and Profile
In general Mr. Healy’s fundamental intellectual abilities (as assessed by the WAIS-IV) and other cognitive skills appeared to be congruent with those expected for a young man of his age.
His profile indicated the following:
Sound:
•Speed of information processing
•Verbal and non-verbal reasoning
•Visuo-spatial skills
•Expressive and receptive language abilities
•Impulse control-inhibition
•Cognitive shifting ability
•Verbal fluency
•Visual scanning
•Learning, immediate and delayed recall memory and cognition for structured (short stories) and unstructured (word list) verbally presented material
•Ability to sustain and focus attention
•Task monitoring facility
•Ability to plan and organise material for immediate use or later output
Better than Average range:
•          Verbal and visual working memory ability
Excellent:
•          Verbal generative ability for semantically stored information
Variable:
•          Basic initial auditory attention
o         High Average (medicated) Borderline (Unmedicated)
There appears to be no indication from Mr. Healy’s neuropsychological profile that he would not be able to complete pilot training and certification successfully if given the opportunity.
In a report dated 26 July 2016 (T34 at 95), Mr Ben Bird, Senior Grade 3 instructor, wrote:
... I have conducted most of this students [sic] Ab Initio training both in ground training and in flight training and I can quite confidently recommend him as a candidate for CPL training. I have not seen any evidence of ADHD with this student.
On 21 February 2017, CASA received a report from Dr Benjamin Duke (R5). Dr Duke answered questions put to him by CASA as follows:
1.What are the functional impacts and symptoms of Mr Healy’s diagnosis of ADHD?
When consistently taking his dexamphetamine medication it would appear that Mr Healy suffers from no functional impairment or symptoms related to his ADHD. When not on medication he would appear to suffer from a range of symptoms in both the inattentive and hyperactive impulsive spectrums as reflected in both the initial assessment by Dr Paterson referred to in his report of 16.07.2016 and also in the neuropsychological assessment report of Dr Karen Brooker of 30.10.2016 (with specific reference to the differences between performance when on and off medication).
2.The aviation environment is complex and dynamic, requiring the ability to share attention between multiple sources of information and to make swift decisions under significant pressure. In your professional opinion, could the symptoms of his ADHD pose a significant risk that Mr Healy may not be able to operate safely in such an environment?
Yes
3.In your opinion, would Mr Healy be fit to fly if he was using his prescribed medication (Dexamphetamine) to control the symptoms of his condition? In answering this question, please consider the possibility of missed doses, timezone changes, inter-current illnesses and use or alcohol and/or other stimulants.
Mr Healy’s use of the prescribed dexamphetamine medication appears to fully control his ADHD symptoms. As such, when on medication he does not suffer from any symptoms and would appear to be fit to fly (based on the report from Mr Ben Bird dated 26.07.2016).
I would express concern that his fitness to fly may be compromised in circumstances where there was a requirement for and a reliance on repeated dosing of medication (such as long haul flying or flying at times when he would not normally experience the benefits of medication – such as late in the evening or at night when the effects of the medication would have worn off).
4.What, if any, side effects can occur in a person when the effects of the Dexamphetamine are beginning to wear off? Do you consider that any such effects would be safety relevant if they were to occur while Mr Healy was operating an aircraft?
There are no side effects per say of dexamphetamine wearing off, rather that the underlying symptoms of ADHD recur. Recurrence of symptoms when the dexamphetamine was wearing off would represent a significant safety risk if Mr Healy was operating an aircraft.
5.Do you consider that CASA needs to consider any other issues with respect to ADHD with respect to Mr Healy, such as neurocognitive issues, psychological effects etc, to determine his fitness to fly as an applicant for a class 1 and class 2 medical certificate? Please consider this in light of CASA’s Clinical Practice Guidelines – Attention Deficit Hyperactivity Disorder (ADHD) [available at and the publication titled, “Aeromedical Decision Making in Attention-Deficit/Hyperactivity Disorder” by Dr David Fitzgerald, former SMO, CASA (attached, FITZGERALD DJP, NAVATHE PD, DRANE AM. Aeromedical decision making in attention-deficit/hyperactivity disorder. Aviat Space Environ Med 2011; 82:550-4).
It would appear to me that Mr Healy is not symptom free when off medication and is continuing to require the use of stimulant medication to control the symptoms of his ADHD.
As per both the Guidelines and the recommendations in the referenced publication, these facts would appear to argue against Mr Healy being granted medical certification for either a commercial pilot’s licence or a private pilot licence.
The Tribunal also notes a report from Senior Medical Officer for CASA, Dr Sharma, dated 17 March 2017, as follows:
11.On the basis of the available evidence I am satisfied that Mr Healy has an established medical history of Attention Deficit Hyperactivity Disorder controlled with the use of Dexamphetamine medication.
12.The medical standards applicable to Mr Healy’s application for Class 1 and Class 2 Medical Certificates are Medical Standards 1 set out in Table 67.150, and Medical Standard 2 set out in Table 67.155 of the Civil Aviation Safety Regulations 1998 (CASR). In particular, the following extracts of the medical standard are relevant to his application:
Abnormalities, disabilities and functional capacity
1.1Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
(a)      an abnormality;
(b)      a disability or disease (active or latent);
(c)      an injury;
(d)      a sequela of an accident or a surgical operation
1.2Has no physical conditions or limitations that are safety-relevant
1.3Is not using any over-the-counter or prescribed medication or drug (including medication or a drug used to treat a disease or medical disorder) that causes the person to experience any side effects likely to affect the person to an extent that is safety-relevant.
Abnormalities, disabilities and functional capacity
2.1Has no safety-relevant condition of any of the following kind 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 sequelae of an accident or a surgical operation
2.2Has no physical conditions or limitations that are safety-relevant
2.3Is not using any over-the-counter or prescribed medication or drug (including medication or a drug used to treat a disease or medical disorder) that causes the person to experience any side effects likely to affect the person to an extent that is safety-relevant
13.On the basis of the available evidence I believe that there is an established medical history of ADHD and the use of the medication Dexamphetamine to control the symptoms, the details of which, I do not believe are in contention.
Safety Relevance
14.A class 1 and a class 2 medical certificate is required to be held by a person exercising the privileges of a commercial and a private pilot licence, respectively. In accordance with regulation 67.015 of the CASR, a condition is ‘safety relevant’ if it is likely to reduce the ability of the person to exercise the privileges conferred by the licence.
15.On the basis of the available medical evidence, I am satisfied that Mr Healy has an established medical history of ADHD, which constitutes a safety relevant condition as defined in Items 1.1 and 1.2 of Table 67.150 and Items 2.1 and 2.2 of Table 67.155 of the CASR. I am also satisfied that Mr Healy’s condition is controlled with the use of Dexamphetamine medication which is a prescribed medication as defined in item 1.3 of Table 67.150 and 2.3 of Table 67.155 of the CASR.
16.Mr Healy’s medical condition is associated with a number of potential symptoms and side effects which could adversely affect his ability to safely exercise the privileges of a pilot licence, including the following issues which may arise:
a.        Premature and ill-considered actions;
b.        Restlessness and excess movement causing distraction;
c.Impaired split attention affecting multi-tasking and situational awareness;
d.        Side effects of medication such as:
a.        Mood changes such as depression or irritability;
b.        Tremor or palpitations;
c.        Restlessness, nervousness or insomnia;
d.        Headache;
e.        Dizziness.
17.It is considered aeromedically reasonable not to allow a person who suffers from ADHD, and / or who takes a medicine or drug which has known side effects which are likely to affect the person to an extent that is safety relevant, to fly, given that ADHD is a condition that is characterised by inattention, hyperactivity and impulsivity. As is evidenced by Annexure 4, ‘SS4’, to this statement ‘Tucha. L-Neuropsychological assessment of attention in adults with different subtypes of attention-deficit / hyperactivity disorder’, adults with ADHD show impairments of selective attention, vigilance, divided attention, reaction time and flexibility which are neuropsychological characteristics which are critical in many of the functions of flying an aircraft
18.Annexure 5 ‘SS5’ to this statement, entitled, ‘A review of driving risks and impairments associated with attention-deficit/hyperactivity disorder and the effects of stimulant medication on driving performance’, (Russell A. Barkley author), supports the notion that ADHD is, for the reasons discussed above, associated with increased risk.
19.Mr Healy uses Dexamphetamine to control his ADHD. Dexamphetamine is a sympathomimetic amine with a central stimulant and anorectic activity. I refer to Annexure 5 ‘SS6’ to this statement entitled ‘Dexamphetamine Tablets’, in this regard. It produces euphoria in normal adults, which may mask the ability to recognize fatigue.
20.Attached to this statement as Annexure 7, ‘SS7’ is a document entitled ‘College students with and without ADHD: Comparison of self-report of medication usage, study habits, and academic achievement’, (Clair Advokat, Sean M Lane and Chunquio Luo, authors) which supports the notion that while dexamphetamine, may improve attentional capacity, it may not normalise other neuropsychological deficits associated with ADHD.
21Mr Healy is currently on compounded dexamphetamine 25mg controlled release capsule, one daily, and dexamphetamine 5mg tablets as a top up / alternative. Peak plasma concentration of compounded dextroamphetamine is achieved after around 8 hours of ingestion while average maximal dextroamphetamine plasma concentration is achieved at 3 to 4 hours. Choice of compounded dexamphetamine is to obviate short duration of action of dexamphetamine, which has an immediate effect within 30 minutes of the initial dose and continuing for only 3 to 4 hours, to maintain the required therapeutic effect the medication. As a result of this the plasma levels of the, administered drug may not be constant, with gradual rise until it peaks after around 8 hours before the trough, which may be reflected in performance. This also means that every top up or alternative dexamphetamine 5mg tablet taken may alter the drug’s plasma concentration, which may present with variable performance and resurgence of symptoms.
22.CASA requires demonstrable stability of ADHD for a reasonable period of time without medication for consideration of medical certification. This is specified as “absence of symptoms for a minimum of 6 months after treatment completed.” This information is available online at CASA’s Clinical Practice Guidelines on Attention Deficit Hyperactivity Disorder (ADHD) at URL: is all the more important given the possible consequences of suffering from inattention, hyperactivity or impulsiveness while in control of an aircraft, which could result in significant behavioural anomalies and interference with judgement and decision making. Even with no objective evidence of current symptoms or dysfunction, but requiring treatment may have adverse effect of the prescribed stimulant. Hence, a current diagnosis of ADHD requiring pharmacological treatment raises concerns about impairment combined with the issues around the pharmacokinetics and pharmacodynamics of the medications used, besides the use of medication as a proxy measure of severity.
24.Attached to this statement as Annexure 8, ‘SS8’ is a document entitled ‘Aeromedical Decision Making in Attention-Deficit/Hyperactivity Disorder’ which outlines the broad overview of the issues involved and provides certification guidelines as adopted in the Australian Civil Aviation Safety Authority.
25.Mr Healy uses Dexamphetamine to control the effects of the ADHD, which has demonstrated adverse effects both in use, and on withdrawal or cessation. It is my view that these effects would pose a clear threat to the safety of aviation, and he cannot therefore, in my view be issued with a medical certificate.
26.For these reasons, I have concluded that Mr Healy does not meet the Class 1 or Class 2 medical standards.
Issue of Medical Certificate and Risk Analysis
27.I consider that the medical evidence demonstrates that Mr Healy has a history of ADHD treated with the use of Dexamphetamine medication.
28.In light of the fact that Mr Healy does not meet the Class 1 or Class 2 medical standard, I can only issue him with a Class 1 or Class 2 medical certificate if I am satisfied that the extent to which he fails to meet the applicable medical standard is not likely to endanger the safety of air navigation.
29.For the reasons set out above under the heading ‘Safety Relevance’ I consider that Mr Healy’s ADHD, controlled by Dexamphetamine poses a risk that would endanger the safety of air navigation.
Conditional certificate
30.Notwithstanding the conclusion l have reached above, I note that r.11.056 of the CASR allows the issue of a medical certificate subject to any condition which may be necessary in the interests of safety having regard to an applicant’s medical condition.
31.I consider that there are no conditions which could be imposed on the class 1 or class 2 medical certificate issued to Mr Healy which would adequately ameliorate the risks to air safety posed by his medical condition.

The Tribunal also notes a report from Dr Cadden dated 17 August 2016 (T41 at 117) that provides:
I write in support of Mr Healy’s appeal on the recent decision to refuse him a Class 1 and Class 2 Pilots’ Licences. He has already been granted a Class 2 Licence in 2002 when he managed to fly solo on several occasions but could not concentrate to do the study for the pilot’s exams. He reached (GFPT (RPL) level before giving it away. He did not know he had ADHD at the time.
His main problems with ADHD seem to have been poor concentration rather than impulsiveness and he can concentrate very well now with the medication. He manages to drive heavy good vehicles at night and has a good working profile. He denies side effects from the medication and, on reading the literature, these are not common.
Dr Paterson, his treating psychiatrist, does not feel that another report from him will reflect anything more than his previous report but suggests that Mr Healy have a neuropsychological assessment on and off the medication and such an assessment will show he has no functional impairment that is considered important eg “premature and ill considered actions; impaired split attention affecting multi-tasking and situational-awareness”. He also suggested that Mr Healy approach his previous employers to attest to his reliability and lack of such actions whilst working for them. Naturally, all that will take time and I ask that you extend his time for appeal to three months to allow him to undergo such testing and gather the references.
Would you consider granting him a restricted licence with regular supervision from his treating psychiatrist and regular drug testing? Review of the licence would be in a year close monitoring is feasible [sic].
The Tribunal heard oral evidence from Dr Sharma, Dr Paterson and Dr Duke. Relevantly, the Tribunal notes the following evidence from these medical witnesses, all of whom are highly regarded:
Witness: Dr Sharma
Ms Swain: .. Can you explain why CASA doesn’t certify sufferers of ADHD even where their symptoms are controlled don medication?
Dr Sharma:..Here our concern is more to do with the medication because one, it being a central nervous system stimulant we do need to worry about its side effects which include over stimulation, restlessness, dizziness, insomnia, a poor control in voluntary movements, what we call dyskinesia, tremors, headache. We also need to be concerned about – because it’s a known fact and it was also brought out in Dr Paterson’s paper, that there is a significantly high incident of abuse of the medication in such cases. There is also likelihood of psychological dependence as well as tolerance, so the medication as such will not – even if it’s kind of controlling or minimising the symptoms, will itself be of – will not allow us to accept his being medically fit.
Witness: Dr Roger Paterson
Ms Swain: …. Are you able to expand on the symptoms of ADHD which are suffered by Mr Healy?
Dr Paterson: Yes. He, when I first met him he complained of both his mind and body rushing, being excessively active and this is very much typical of the hyperactive form of Attention Deficit Hyperactivity Disorder. I then took him through questions and he confirmed that he had difficulty sustaining attention in tasks and leisure activities. He had problems listening when spoken to directly. He avoided tasks that required sustained mental effort, he was easily distracted and forgetful in daily activities. In addition, he complained of a number of overactivity symptoms including feeling generally restless, difficulty doing leisure activities quietly, felt as if he was on the go or driven by a motor, if you like, tended to talk excessively, blurt out answers before questions had been completed and didn’t really wait in turn and tended to interrupt or intrude on others and these symptoms had been present most of his life. ADHD is a lifelong disorder. If you’re lucky it tends to improve as you get older, as you move out of your teens into your 20s but it seemed to be not the case with Mr Healy, that it seemed to be positioning into adult life as it does in about 50 per cent of cases, and was causing him significant problems, so enough to warrant a trial of medication, which we started in 2014 and have continued to the present day.
…
What do you believe the impact would be on Mr Healy if he was to cease the medication and do you think he could function normally without the medication?
Dr Paterson: Well, he’s been functioning reasonably well all his life. He was, you know, able to – as a number of ADHD patients who come to see me say, “Well, I’ve been functioning but I’m not functioning ultimately” and this is the problem, trying to work out whether it is worthwhile treating or not. In his case he thought “Well, yes, I could be doing better”. I mean, without it he can still function. He can get by in life, he was holding down a job and you know, no major disasters to his life. He was progressing but it was extra effort. He was labouring under a handicap and it was good to be able to remove that handicap so that he could function at a better level and without as much frustration.
Ms Swain: You’ve mentioned the benefit for Mr Healy of waking up the executive part of the brain. Is there any other benefits of taking the medication in a person with ADHD?
Dr Paterson: Well, no. I mean, it’s a pretty good benefit. What more do you want? You know, without an executive part of your brain working each day becomes very difficult. You’re operating at a sort of a secondary level and being able to concentrate and focus on tasks is one of the basic needs of life and you wake up each morning that’s what you need to start doing and without it you are constantly playing catch-up.
Ms Swain: How long do the beneficial effects of the medication last?
Dr Paterson: They last about 12 hours and they are designed to wear off so that the patient can get to sleep each night. Because they’re a stimulant they can be used for alertness and keep people awake and so the tablets are designed to just last daylight hours and then to wear off so that they can get to sleep at night.
Ms Swain: Is there any way of definitely discerning how long the beneficial effects of the dose will last for?
Dr Paterson: Well, I mean, you get feedback from the patient of course as to when it is wearing off. Some patients complain it’s a little short so – then you have to adjust the medication, some think it’s a little bit long and it’s the finer adjustments. You can actually do a laboratory test where you can actually plot the levels of dexamphetamine in the blood, if you can see it wearing off there you could potentially do neuropsychometric testing I suppose, and do it that way but it’s usually just a clinical feedback from the patient that’s sufficient.
Ms Swain: What are the possible effects when the medication is wearing off?
Dr Paterson: Generally the patient just returns to their pre-medication state, so it’s at a lower level of functioning but it may be adequate to get them by. Some patients complain when it’s wearing off they get what’s called (indistinct) causing problems where they drop a little bit of energy or mood and can become a bit irritable.
Ms Swain: Could they suffer breakthrough symptoms of their…. So could they begin to suffer breakthrough symptoms of their (indistinct) ADHD when it’s (indistinct)?   Could they begin to suffer from breakthrough symptoms of their ADHD when the – when it wears off?
Dr Paterson: Well, yes, when it’s wearing off, yes his symptoms could re emerge.
...
Deputy President: ….I just have one question in relation to an extent that the drug wears off and the symptoms reappear to the extent that they do, are those symptoms the type of thing that somebody sitting next to someone in that condition would notice or are they simply something that the person themselves would notice?
Dr Paterson: It’s a good question in that if someone is just having a re-emergence of their poor concentration it may be subtle and it may just be in task completion that it’s seen and someone sitting next to a person with that may not notice it if they just become a bit more inefficient, but sometimes the behavioural symptoms re-emerge and they become more fiddly and move around in their chair or get up and down – walk around, start chatting about topics that are off topic, so you may not notice.
…
Ms Swain: Are there any effects on the performance as per the time of day or the circadian rhythm of the daily dosage of the medication?
Dr Paterson: Generally speaking, the tablets work within about half an hour of taking them and they – it’s a fairly even effect during the day if you get the dosing right and then they wear off after about 12 hours and usually they wear off fairly gradually so that people can – they’re designed to sort of wear off after someone has come home from work and they’re just relaxing in the evening. That’s your ideal scenario but it’s not always the case. I mean, they can wear off a bit too soon or they can persist too long and keep people awake, so the wearing off – it may not always be that smooth during the day and the wearing off but ideally that’s what we’re aiming for.
Witness: Dr Duke
Ms Swain: In your report you have expressed some concern that Mr Healy’s fitness to fly may be compromised in circumstances where there was a requirements for over-reliance from repeated doses of medication. Could you please expand on this and explain what your concern would be in those circumstances?
Dr Duke: So normally when somebody with ADHD takes dexamphetamine they get symptomatic improvement for anywhere between two to four hours from that dose of medication, so it’s not – so it’s quite common for people with ADHD to require repeated doses of medication through the day and if someone is attending school or university for instance, they will often take a dose in the morning and then a dose around midday in order to get that symptomatic benefit throughout the academic day as it were. If someone was piloting a plane, whether it was a long haul flight or they were doing a fly out somewhere and they are flying back in, over a time period that exceeded what was any benefit they were going to get from a single dose of medication, then there would be a requirement for them to have repeated doses of medication to continue to get the benefit of the treatment to control symptoms of their ADHD. This – there’s a whole pile of scenarios where there’s a possibility from missed doses of medication, medication not being packed or medication getting lost where the risk is that the symptoms of the ADHD would over time gradually recur as the effects of the medication wore off, and if there was no available medication to take, the risks associated with the symptoms of ADHD would be greater if the individual was then required to fly again or continue to fly for a prolonged period of time.
Ms Swain: So if the dexamphetamine was wearing off while he is operating an aircraft, what are the symptoms that you are referring to that could occur?
Dr Duke: So the symptoms that I refer to are all with respect to inattention or other factors, so poor concentration, inability to follow through or complete his tasks, restlessness, hyperactivity. Those – the symptoms of ADHD type symptoms that would recur as the effect of the medication wore off.
Ms Swain: And is there a way of definitively determining how long the beneficial effects of the dose will last for?
Dr Duke: It’s very subjective. The most accurate way to assess that would be through a combination of history-taking and observation, so asking Mr Healy or in this case, how long he believes that he gets benefit from the medication – doses of medication that he takes, but also complimenting that history-taking with clinical observations based upon his ability to continue to perform at an intellectually demanding level during a period of time when the benefits of the medication would be expected to wear off in order to assess his performance over that period – over that time frame.
Deputy President: … So let’s assume for example that after an assessment it’s determined that roughly the medication might, for example, last anywhere between eight to 12 hours. Can that fluctuate? I mean, is that constant or does the medication work in such a way as it might be either 10 or 12 hours one month but the next month it might be six or 14?
Dr Duke: There is – generally it would be consistent but there are risks that if he is taking other medications or other substances that impact upon the metabolism of the medication that the body may clear the medication at a faster rate and that would reduce the time frame that the medication would have its beneficial effect.
LEGISLATION
A detailed and accurate overview of the relevant legislation was provided by CASA at paragraphs 15 to 24 of CASA’s Statement of Facts, Issues and Contentions dated 17 March 2017 and in CASA’s Written Closing Submissions dated 30 March 2017 at paragraphs 1 to 15. The Tribunal notes relevantly as follows.
Subregulation 61.410 of the Civil Aviation Safety Regulations 1998 (the “CASR”) provides that, in relation to a private pilot licence, the holder of such a licence is only authorised to exercise the privileges of that licence if they also hold a current Class 1 or Class 2 medical certificate.
Subregulation 61.415 of the CASR provides that, in relation to a commercial pilot licence, the holder of such a licence is only authorised to exercise the privileges of that licence if they also hold a current Class 1 medical certificate.
Subsection 20AB(1) of the Civil Aviation Act 1988 (the “CA Act”) provides that a person must not perform any duty that is essential to the operation of an Australian aircraft during flight times if the person does not hold a current civil aviation authorisation that authorises the performance of that duty.
By ss 3(1) of the CA Act, the term ‘civil aviation authorisation’ is defined to include a certificate issued under the Regulations.
The issuing of medical certificates is governed by Part 67 of the CASR. Regulation 11.056 allows the respondent to issue a medical certificate to a person “subject to any condition that CASA is satisfied is necessary in the interests of the safety of air navigation”.
Regulation 67.180 prevents CASA from issuing a medical certificate unless an applicant meets the “relevant medical standard” or the extent to which an applicant does not meet that standard is not “likely to endanger the safety of air navigation”.
As explained by CASA in written final submissions at paragraphs 16 and 17, the term ‘likely’ when used in the context of the issue of aviation medical certificates pursuant to Part 67 of the CASR, should be understood as a reference to a substantial or real and not remote risk of a particular event occurring. As explained in Re Window v Civil Aviation Safety Authority (1999) 56 ALD 316 at [60]:
Having regard to the need to protect public safety while having regard to a person’s entitlement to pursue his or her ambitions, we consider that the word “likely” means “a substantial or real and not a remote chance”. That is not a matter which can be assessed on statistical likelihood and certainly does not mean “more likely than not”, “odds on” or “a more than 50% chance of a thing happening”. To adopt those latter three meanings would, in our view, be to place too little weight on the protection of public safety and too much on an individual’s entitlements.
Further, in Re Hall and Civil Aviation Safety Authority [2004] AATA 21 at [45], the Tribunal explained:
As the Tribunal stated in Re Windows [sic], 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.
By virtue of regulation 11.056 of the CASR, if the extent to which an applicant fails the medical standard is likely to endanger the safety of air navigation, then the relevant certificate must be refused unless it can be issued with conditions which will ameliorate any risk posed.
The Class 1 medical standard
The Class 1 medical standard is set out in Table 67.150 of the CASR. It provides, relevantly, as follows:
Abnormalities, disabilities and functional capacity
1.1 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.
1.3Is not using any over the counter or prescribed medication or drug (including medication or a drug used to treat a disease or medical disorder) that causes the person to experience any side effects likely to affect the person to an extent that is safety relevant.
The Class 2 medical standard
The Class 2 medical standard is set out in Table 67.155 of the CASR, and, as far as is relevant, provides as follows:
Abnormalities, disabilities and functional capacity
2. 1Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
(a)       an abnormality;
(b)       a disability or disease (active or latent);
(c)       an injury;
(d)       a sequela of an accident or a surgical operation.
2.3Is not using any over the counter or prescribed medication or drug (including medication or a drug used to treat a disease or medical disorder) that causes the person to experience any side effects likely to affect the person to an extent that is safety relevant.
By virtue of s 9A of the CA Act, CASA is required to regard the safety of air navigation as the most important consideration in the exercise of its powers and the performance of its functions. Furthermore, in accordance with regulation 67.015 of the CASR, a condition is "safety- relevant’’ if it is likely to reduce the ability of the person to exercise the privileges conferred by the licence.
CONSIDERATION
Overall, the Tribunal must undertake the following decision making process in determining whether Mr Healy should be granted a Class 1 or Class 2 medical certificate:
a.determine whether Mr Healy meets the medical standards in Table 67.150 or 67.155 of the CASR. If the relevant standard is met, the certificate must be granted – r 67.180(1) and (2)(e);
b.if Mr Healy does not meet the relevant medical standard, then the Tribunal must determine whether the extent to which Mr Healy fails the medical standard is likely to pose a risk to the safety of air navigation. If not, then the certificate may be granted – r 67.180(2)(e)(ii) and (f)(ii); and
c.if the extent to which Mr Healy fails the medical standard is likely to endanger the safety of air navigation, then the certificate must be refused unless it can be issued with conditions which will ameliorate any risk posed – r 11.056.
Does Mr Healy meet the class 1 and class 2 medical standards?

In relation to this issue, CASA argued as follows in its Statement of Facts, Issues and Contentions:
Established medical history
31.The respondent contends that the available medical evidence supports the following findings:
(a)in 2014, at the age of 27 years old, the applicant was diagnosed as having ADHD, which had been a life-long condition and was prescribed the stimulant, Dexamphetamine, 25mg controlled release capsules, one daily, and very occasional dexamphetamine 5mg tablets as a top up / alternative.
(b)The applicant’s use of Dexamphetamine has assisted the applicant to improve his focus and general efficiency.
(c)The applicant undertook two testing sessions by Dr Karen Booker, one whilst on medication, and another a week later having not taken his medication. The report dated 30 October 2016 with respect to these sessions indicated that the applicant’s fundamental intellectual abilities, as assessed by the WAIS-IV, and other cognitive skills appeared to be as expected for a man of his age.
(d)On 21 February 2017, Dr Duke reported that the applicant does not appear to be symptom free when off medication, and that he continues to require the use of stimulant medication to control the symptoms of his ADHD.
The medical standard
32.In light of the above facts, the respondent contends that the applicant fails to meet the class 1 and class 2 medical standards in the following regard:
1.he does not meet items 1.1(b) or 2.1(b) in that he has an established history of diagnosis for ADHD, which is a disability or disease (active or latent), which produces a degree of functional incapacity or risk of incapacitation:
2.he does not meet items 1.3 or 2.3 in that he is prescribed, and continues to take, the stimulant Dexamphetamine for his condition, and this stimulant may cause the applicant to experience side effects which are likely to effect the applicant to an extent which is safety relevant.
CASA further contended in written closing submissions as follows:
23.As indicated in the respondent’s statement of facts and contentions, it is submitted that the applicant fails to meet the Class 1 and Class 2 Medical Standard on the basis that the applicant has a safety relevant medical history of ADHD which is controlled with the medication Dexamphetamine.
24.The applicant’s medical history carries with it a risk, if the applicant is unmedicated, of cognitive impairments such as selective attention, vigilance, divided attention, reaction time and flexibility, which are neuropsychological characteristics which are critical in many of the functions of flying an aircraft, such as planning, situational awareness and appropriate response to emergency situations, means that this condition has the potential to adversely affect the applicant’s flying performance. Inattention is one of the most common contributors to traffic accidents, and therefore ADHD is associated with increased accident risk.
25.However, if the applicant takes stimulant medication for his condition, then the issues associated with that medication, including short duration of action, and demonstrated adverse effects both in use and on withdrawal or cessation would result in the applicant’s cognition being fluctuant with dosage.
Items 1.1 and 2.1 of the relevant medical standards
27.In considering whether the applicant fails to meet the standard at Item 1.1 of Table 67.150, and Item 2.1 of Table 67.155 on account of his medical history, there are a number of separate matters which need to be considered:
(i)the applicant must suffer a condition as defined in sub-paragraphs (a)- (d) of Item 1.1 and 2.1 of the standard;
(ii)the condition must be ‘safety relevant’ and;
(iii)the condition must produce a risk of incapacitation.
Condition
28.In the respondent’s submission, the applicant’s medical history of ADHD with treatment by Dexamphetamine is clearly capable of coming within the notion of a disability or disease (active or latent) (sub-paragraph (b)) and is thus a ‘condition’ within the meaning of Items 1.1 and 2.1.
Safety relevant
29.Similarly, the nature of ADHD is clearly ‘safety relevant’ within the meaning of the definition of that term in r.67.015 because, if the applicant were to be unmedicated he could suffer cognitive impairments such as selective attention, vigilance, divided attention, reaction time and flexibility, which are neuropsychological characteristics which are critical in many of the functions of flying an aircraft, such as planning, situational awareness and appropriate response to emergency situations. Inattention is one of the most common contributors to traffic accidents, and therefore ADHD is associated with increased accident risk, and as such, would not only reduce, but would potentially be totally destructive of his capacity to exercise the privileges or perform the duties of his pilot’s licence. Even if the applicant takes stimulant medication for his condition, then the issues associated with that medication, including short duration of action, and demonstrated adverse effects both in use and on withdrawal or cessation would result in the applicant’s cognition being fluctuant with dosage, and again be clearly safety relevant and potentially destructive of his capacity to safely exercise the privileges or perform the duties of his pilot’s licence.
Risk of incapacitation
30.In the respondent’s submission, the Tribunal would be satisfied that the applicant’s medical history as set out at paragraph 23 above, which carries with it a risk of suffering from cognitive impairments, is therefore a risk of incapacitation within the meaning of Item 1.1 and 2.1 of the relevant medical standard.
31.On this basis, it is submitted that the Tribunal would be satisfied that, by reason of his medical history, that the applicant fails to meet Item 1.1 of the Class 1 Medical Standard and 2.1 of the Class 2 Medical Standard.
Item 1.3 and 2.3 of the relevant medical standard
32.Items 1.3 and 2.3 of the medical standards provide that a person must not be using any medication or drug which causes side effects likely to affect the person to an extent that is safety relevant. The applicant’s use of the medication Dexamphetamine to control his ADHD, is clearly capable of coming within the definition since the applicant’s cognitive performance may be fluctuant on dosage.
The Tribunal agrees with this overview. On the evidence, it is clear that without his medication, Mr Healy’s ADHD condition is not controlled, with the result that he suffers from a range of symptoms. These symptoms include “mind and body rushing”, “being excessively active”, “difficulty sustaining attention in tasks” “being easily distracted” and “forgetful” (noting the oral evidence of Dr Paterson at page 12 of hearing transcript). This results in functional incapacity or a risk of incapacitation. In the circumstances, this condition is clearly safety relevant.
On the evidence, the Tribunal also finds that there are safety risks even when Mr Healy is medicated. In that regard, the Tribunal notes the evidence of Mr Healy’s own psychiatrist, Dr Paterson, in relation to the risks associated with this medication.   To repeat, Dr Paterson explained some of these side effects as follows:
Deputy President: ….I just have one question in relation to an extent that the drug wears off and the symptoms reappear to the extent that they do, are those symptoms the type of thing that somebody sitting next to someone in that condition would notice or are they simply something that the person themselves would notice?
Dr Paterson: It’s a good question in that if someone is just having a re-emergence of their poor concentration it may be subtle and it may just be in task completion that it’s seen and someone sitting next to a person with that may not notice it if they just become a bit more inefficient, but sometimes the behavioural symptoms re-emerge and they become more fiddly and move around in their chair or get up and down – walk around, start chatting about topics that are off topic, so you may not notice.
…
Ms Swain: Are there any effects on the performance as per the time of day or the circadian rhythm of the daily dosage of the medication?
Dr Paterson: Generally speaking, the tablets work within about half an hour of taking them and they – it’s a fairly even effect during the day if you get the dosing right and then they wear off after about 12 hours and usually they wear off fairly gradually so that people can – they’re designed to sort of wear off after someone has come home from work and they’re just relaxing in the evening. That’s your ideal scenario but it’s not always the case. I mean, they can wear off a bit too soon or they can persist too long and keep people awake, so the wearing off – it may not always be that smooth during the day and the wearing off but ideally that’s what we’re aiming for.
In the circumstances, the Tribunal finds that, by reason of his medical history, Mr Healy fails to meet Item 1.1 of the Class 1 Medical Standard and Item 2.1 of the Class 2 Medical Standard. Further, Items 1.3 and 2.3 of the medical standards provide that a person must not be using any medication or drug which causes side effects likely to affect the person to an extent that is safety relevant. Mr Healy’s use of the medication Dexamphetamine to control his ADHD falls within the definition since Mr Healy’s cognitive performance may be fluctuant on dosage and throughout the day. Dr Paterson’s evidence makes this clear.
The Tribunal thus finds that Mr Healy does not meet the medical standard for the issue of a Class 1 or Class 2 medical certificate because of his condition of ADHD and the effects of the medication (Dexamphetamine) used to control that condition.
Is Mr Healy’s medical condition likely to endanger air navigation safety?
Having found that Mr Healy does not meet the relevant medical standard, the Tribunal must determine whether the extent to which Mr Healy fails the medical standard is likely to pose a risk to the safety of air navigation. If not, then the certificate can be granted.
In relation to this issue, Mr Healy contended as follows in a Statement dated 16 January 2017:
Issues/Questions
1)I applied for my Class 1 medical in March 2016, where I disclosed my Attention Deficit Hyperactive Disorder (ADHD) and the medications I was taking. Over the following 8 months I was asked to provide further information from Doctors, Instructors etc. Please explain why my medical application was not immediately denied in March when my ADHD was disclosed.
2)T34 Page 93 is the questionnaire my flight instructor was asked to complete. In the top right hand corner is says “ADHD information required” (extract from assessment protocol). What is CASA ADHD protocol?
3)Can CASA provide me with a statutory declaration stating that there are no ADHD pilots on medications currently holding Class 1 medicals? Please provide written confirmation that no pilot’s currently holding Class 1 medicals have ADHD.
4)In 2002 I held a class 2 aviation medical while I had ADHD but I was not diagnosed with it, but I am being denied it now because I am diagnosed with ADHD, how is this possible?
FACTS
1)I am 30 years of age, I struggled with studying all my life and never did very well in school. In October 2002 at 16 years of age I started learning to fly.
2) In November I was issued with a class 2 aviation medical and flew my first solo on 31 December 2002.
3)Over the next 2 years I excelled in the practical side of flying and earned my GFPT which is now called a RPL.
4) I then needed to start the theory courses but I didn’t do very well and eventually gave up flying.
5) At 27 I was diagnosed with ADHD which I had all my life and after 9 years of mining I decided to start studying my Underground Shift Supervisors certificate of competency which I passed. At 29 I also completed a special tertiary admissions test to be able to enrol in a university course which I scored in the 96th percentile in English.
6) In 2016 as I was very happy with my results and studying wasn’t a problem anymore, I decided now was the best time to finish my commercial pilot licence.
7)I contacted the ATSB and asked for any accidents, incidence or near misses where ADHD pilots were directly at fault the attached report is the ONLY ONE provided by the ATSB. As the report doesn’t directly state that the pilots ADHD was the issue, it clearly states the pilots heart condition was a primary factor in this accident.
8)T15 P26 From 2002-2006 I held a class 2 aviation medical without the ADHD diagnosis but have been denied one with the ADHD diagnosis.
9)I have the full support and endorsement of my DAME DR Francis Cadden T41 p117, DR Karen Brooker T48 P137 and my instructor Ben Bird T34 P93.
Contentions
As I have had a long history with ADHD without a diagnosis and I held an aviation medical from 2002-2006, but as stated previously after I have been diagnosed I am being denied now. I believe over the last 8 months I have seen Doctors, psychiatrists, and have had neuropsychological assessments done at a great expense I had proven that I do not pose any risk to myself and others.
Furthermore I can only find ONE instance that indirectly links ADHD pilots to support CASA position, it seems it is a lot easier to discriminate against a whole group of people instead of looking into each person’s application independently.
As it shows in my work history T52 P159 my whole working life I have always been in positions of responsibility from my 9 years underground in senior roles to now operating road trains and have had no issues and a clean record.
The decision I seek from the AAT is to reverse CASA refusal and be granted a Class 1 aviation medical.
Mr Healy further submitted as follows in written closing submissions dated 12 April 2017:
1)        Throughout my schooling I never passed any subjects especially English where I received an ‘E’ but after my diagnosis in 2014 I studied and sat my Underground Shift Supervisors Certificate of Competence and passed both the written underground practical exam and the underground law exam (T12, also please see attached Pass result for Underground Supervisors Practical). Also in 2016 I sat the Special Tertiary Admissions Test where I achieved a score in the top 5 percentile in English. (please see attached copy of STAT test results)
2)        I have previously held a Class 2 aviation medical (T15 Pg26) and flown many solo flights in 2002/2003 prior to my diagnosis and also 10 months prior to me even being able to drive a car by myself. (please see attached first solo certificate)
3)        My main issue with ADHD is being able to study books and pass exams not the actual practical side of flying as is stated by my instructor Ben Bird (T34), Dr Karen Brooker(T48) and Dr Francis Cadden my DAME (T41).
4)        Absence of any documentation proving that there has been any near misses, significants incidence or accidents in Australia that shows that the primary cause was a medicated ADHD pilot other than the information I have provided from the ATSB.
5)        Dr Roger Paterson’s gave evidence by telephone stating that he has been treating me since February 2014 and stated that I can function quiet normally off the medication but I do have to work harder at it, but I function at an optimal level on the medication and that he sees no issues with me being able to complete my Commercial Pilot Licence which is also backed up by my flying instructor Ben Bird and my Dame DR France Cadden. (Please refer to respondents statement of facts and contentions document points 8 through to 11)
6)        In response to Question 1 of Dr Dukes report “What are the functional impacts and symptoms of Mr Healy’s diagnosis of ADHD?” Dr Duke states when I consistently take my medication it appears I suffer from no functional impairment or symptoms related to my ADHD which is backed up by (T34,48,41) DR Duke also states when I’m not on medication I would appear to suffer a range of symptoms in both the inattentive and hyperactive impulsive spectrums as reflected by DR Paterson report (T32) but fails to mention that in point 3 of the report that I enjoyed my aviation experience while at high school and that it is typical of ADHD people if they are interested in a something they can concentrate on it, often hyper focusing (which is not a bad thing in aviation) but other subjects that are less interesting are ignored completely. Also in point 6 Dr Paterson states “with treatment he has made great advances, passing Shift Supervisor Certificate and doing well with his aviation studies over the last six months”. (evidence of this please see attached first solo certificate, STAT test results, Underground Supervisors Practical exam results and T12) Furthermore DR Duke made reference to the neuropsychological testing I did with DR Karen Brooker (T48) if you could read this 9 page report it would be appreciated.
7)        In response to question 2 of Dr Duke’s report I would like to refer to my work history document again (T52). Throughout my working life I have constantly been in complex and dynamic environments please note my 8.5 years of underground mining operating every piece of underground heavy mobile equipment, over 4 years of being the underground shot firer where I was responsible for all explosive operations in the mine, firing of all underground shots at the of end of each shift, re-entering the mine at the beginning of each shift checking levels of blast fumes before all other personnel. And as a current operator of road trains at night on long hauls where on a daily basis I must be extremely vigilant of my immediate surroundings and traffic but also aware of other traffic 2-3kms to my rear and ahead of me as the stopping distance of a road train is extremely long as I can weigh from 90-120T I also must pay attention to all my temperature and brake pressure gauges, ensure all air and brake lines are connected and secured properly.
8)        In response to Question 3 of Dr Dukes report in which he states “I am in full control and do not suffer from any symptoms and would appear fit to fly but does say he would express concern where I would need repeated doses of medication such as long haul flying or at times such as late in the evening where the medications may have worn off”. As the medication prescribed to me is a compound dexamphetamine that is slow a release over 12 hours I must point out that pilots are restricted to a maximum of 12 hours duty time which includes 8 hours flight time. (please note that this can be extended to 14 hours under certain circumstances) Furthermore the mention of flights late in the evening contradicts the hours I currently operate heavy vehicles where my start times are between 9 and 10pm in the evening 3 times a week.
9)        In response to Question 4 of DR Dukes report “What, if any, side effects can occur in a person when the effects of the Dexamphetamine are beginning to wear off? Do you consider that any such effects would be relevant if they were to occur while Mr Healy was operating an aircraft”? Dr Dukes states that there are no side effects of the Dexamphetamine wearing off, rather that the underlying symptoms of ADHD recur. And that I would present a significant risk. I would like to point out that I have always had ADHD As stated in DR Paterson report (T32 point 1) “As is typical, his condition was lifelong” and (T32 point 3) ADHD people – if they are interested in something, they can concentrate on it” I believe the evidence of my work history suggests otherwise as well as my previous flying experience prior to my diagnosis. (see attached solo certificate)
10)      The respondent provided me with a List of Authorities which I had a look through and a few others, the case of Dixon and civil aviation authority (2011) AATA 332 caught my attention. In short Mr Dixon was 63 years old and had been flying aircraft for over 28 years, has close to 2000 hours of flying experience and his flying record is unblemished. In 2010 he was refused a medical certificate because of an ADHD diagnosis. He was originally diagnosed in 2005 and commenced taking Ritalin shortly after. As you can recall in the hearing I asked Dr Paterson if a person was diagnosed later in life as was the case with Mr Dixon could the person have had the symptoms of ADHD throughout their entire life? As you can recall he replied yes. My point here is you can have a 28 year unblemished flying record but soon as you get diagnosed you automatically become a risk? It doesn’t make much sense to me. The other case I would like to bring to your attention is that of Jonathan Walker and civil aviation safety authority (2014) AATA 169 I touched on this case during the hearing where I asked DR Sharma how can Mr Walker who has been diagnosed with Juvenile Myoclonic Epilepsy be allowed to complete his PPL in 2006 and his CPL in 2012? As I was informed it is unfair to ask DR Sharma about this case as he is not familiar with it. I would like to re word the question to DR Sharma, can a person with Juvenile Myoclonic Epilepsy be granted a Class 1 or Class 2 medical certificate bearing in mind that the condition starts in childhood and the symptoms include but not limited to muscle twitching or jerking, seizures, full blown convulsions and absence seizures (staring spells)?
11)      Document SS5 provided by the respondent is a review of driving risks and impairments associated with ADHD and the effects of stimulant medication on driving performance.
•          ADHD people are not disqualified from holding a licence.
•          By providing this report I’m assuming that none of the respondents personally drive a car because of the risk ADHD people pose on the roads? Is this correct?
Conclusion
In summary, I find that the more I read over my case and that of other cases It seems CASA has somewhat of a magic box labelled Abnormalities, disabilities and functional capacity and they can put anyone in that box no matter what evidence to the contrary is provided. I ask that you look over the List of Authorities presented by the respondent and see if my case should be put into the same box as them. There is absolutely no doubt that had I not been diagnosed with ADHD in 2014 I would of have a Class 1 medical issued to me without no issues what so ever as it was in 2002, but that doesn’t mean I didn’t have ADHD in 2002 or now does it? As DR Paterson pointed out when giving evidence I can function without the medications I just have to work harder but I just function at a more optimal level on the medications and I would have thought that’s what we would want in a pilot, an optimal functioning person behind the controls? At least I would. I just really hope my whole case is reviewed in its entirety by DR Sharma and the AAT before final direction is given and I’m not just automatically put in that magic box just because my only fault is I have ADHD.

CASA, in turn, provided the following closing submissions:
Likely to endanger the safety of air navigation
33.The applicant’s diagnosis of ADHD, and his use of Dexamphetamine poses a real and not remote risk to the safety of air navigation.
34.The nature of this disorder including impairment in attention is an issue, if the applicant is unmedicated then the cognitive impairments such as selective attention, vigilance, divided attention, reaction time and flexibility, which are neuropsychological characteristics which are critical in many of the functions of flying an aircraft, such as planning, situational awareness and appropriate response to emergency situations, means that this condition has the potential to adversely affect the applicant’s flying performance. Inattention is one of the most common contributors to traffic accidents, and therefore ADHD is associated with increased accident risk.
35.However, if the applicant takes stimulant medication for his condition, then the issues associated with that medication, including short duration of action, and demonstrated adverse effects both in use and on withdrawal or cessation would result in the applicant’s cognition being fluctuant with dosage.
The Tribunal agrees with CASA’s assessment of the risk to the safety of air navigation. The relevant medical evidence from those doctors who appeared before the Tribunal raises concerns that, even when medicated, there is a very real possibility Mr Healy will suffer adverse consequences that will endanger both himself and others. In addition to the comments made by Dr Paterson above in relation to withdrawal and the risk of his medication wearing off throughout the day, the Tribunal notes that Dr Duke stated in oral evidence (transcript at pages 20 and 21):
Ms Swain: In your report you have expressed some concern that Mr Healy’s fitness to fly may be compromised in circumstances where there was a requirements for over-reliance from repeated doses of medication. Could you please expand on this and explain what your concern would be in those circumstances?
Dr Duke: So normally when somebody with ADHD takes dexamphetamine they get symptomatic improvement for anywhere between two to four hours from that dose of medication, so it’s not – so it’s quite common for people with ADHD to require repeated doses of medication through the day and if someone is attending school or university for instance, they will often take a dose in the morning and then a dose around midday in order to get that symptomatic benefit throughout the academic day as it were. If someone was piloting a plane, whether it was a long haul flight or they were doing a fly out somewhere and they are flying back in, over a time period that exceeded what was any benefit they were going to get from a single dose of medication, then there would be a requirement for them to have repeated doses of medication to continue to get the benefit of the treatment to control symptoms of their ADHD. This – there’s a whole pile of scenarios where there’s a possibility from missed doses of medication, medication not being packed or medication getting lost where the risk is that the symptoms of the ADHD would over time gradually recur as the effects of the medication wore off, and if there was no available medication to take, the risks associated with the symptoms of ADHD would be greater if the individual was then required to fly again or continue to fly for a prolonged period of time.
Ms Swain: So if the dexamphetamine was wearing off while he is operating an aircraft, what are the symptoms that you are referring to that could occur?
Dr Duke: So the symptoms that I refer to are all with respect to inattention or other factors, so poor concentration, inability to follow through or complete his tasks, restlessness, hyperactivity. Those – the symptoms of ADHD type symptoms that would recur as the effect of the medication wore off.
Ms Swain: And is there a way of definitively determining how long the beneficial effects of the dose will last for?
Dr Duke: It’s very subjective. The most accurate way to assess that would be through a combination of history-taking and observation, so asking Mr Healy or in this case, how long he believes that he gets benefit from the medication – doses of medication that he takes, but also complimenting that history-taking with clinical observations based upon his ability to continue to perform at an intellectually demanding level during a period of time when the benefits of the medication would be expected to wear off in order to assess his performance over that period – over that time frame.
Deputy President: … So let’s assume for example that after an assessment it’s determined that roughly the medication might, for example, last anywhere between eight to 12 hours. Can that fluctuate? I mean, is that constant or does the medication work in such a way as it might be either 10 or 12 hours one month but the next month it might be six or 14?
Dr Duke: There is – generally it would be consistent but there are risks that if he is taking other medications or other substances that impact upon the metabolism of the medication that the body may clear the medication at a faster rate and that would reduce the time frame that the medication would have its beneficial effect.
In the circumstances, the Tribunal finds that even if Mr Healy takes his medication as prescribed and required, the issues associated with the use of that medication, including short duration of action means that Mr Healy’s cognitive abilities may fluctuate. On the medical evidence before it the Tribunal finds that this this risk is real and not remote. It thus compromises the safety of air navigation.
As correctly highlighted by CASA before the Tribunal, the requirements of section 9A(1) of the CA Act dictate that a cautious approach be taken to assessing the risks posed to the safety of air navigation by Mr Healy’s medical history. In the circumstances of this case, the Tribunal is not satisfied to the requisite standard that Mr Healy’s failure to meet the Class 1 and Class 2 Medical Standard is not likely to endanger the safety of air navigation.
Can a conditional certificate be issued?
Having found that Mr Healy’s failure to meet the required medical standard is likely to endanger the safety of air navigation, the Tribunal must determine whether conditions can be imposed which will ameliorate any risk. CASA can issue a medical certificate, in accordance with r 11.056 of the CASR, which contains conditions, if those conditions sufficiently ameliorate the danger to air safety posed by Mr Healy’s failure to meet the required medical standard.
In relation to this issue, CASA contended as follows in closing written submissions:
41.Even if the applicant’s relevant medical history gives rise to a real risk that he will endanger the safety of air navigation, a Class 1 or a Class 2 Medical Certificate might still be issued under r.67.180 if a suitable condition can be imposed on the Certificate (under r.11.056) to adequately address that risk.
42.The respondent submits that this is not a matter in which conditions could be imposed on the Class 1 or Class 2 medical certificate issued to the applicant which would adequately ameliorate the risks posed by his condition.
43.As noted above, the extent to which the applicant presents as a risk to aviation safety is real and not remote, and for these reasons, it is submitted that there are no conditions which would adequately ameliorate the risk to air safety with respect to the applicant’s Class 1 or Class 2 Medical Certificate, having regard to the applicant’s medical history and level of risk. Due to the nature of the applicant’s condition, a safety pilot would not necessarily become aware, until it is too late to take corrective action, of any periods of inattention suffered by the applicant and as such, is not an appropriate safety condition for a pilot with ADHD.
The Tribunal agrees with this assessment. This issue was specifically put to the medical witnesses who appeared before the Tribunal. The following evidence was provided:
Dr Sharma
Deputy President: …. your determination was that conditions in this case couldn’t be imposed?
Dr Sharma: That’s right.
Deputy President: That would allow him to fly safely?
Dr Sharma: That’s right.
Deputy President: Can you explain to me why that’s the case?
Dr Sharma: To begin with he – his condition is a behavioural problem where a person with ADHD is known to have mild adaptation of inattention, hyperactivity and impassivity and to control that, as part of the treatment protocol he has been advised the medication that he is taking, so we have two concerns. One, the disease itself and second, the medication that is being taken to control the symptoms of the disease or to treat the disease. Now, when we are looking at inattention that becomes the most important aspect because if one is not fully attentive during the performance of role in the aircraft, one is likely to make errors or lapses and the biggest concern that we have in such a case is vigilance or sustained attention where if you are not attentive about the events – the changing events in the cockpit or outside, it can compromise – affect one’s situation awareness and in turn can result in a catastrophe.
Deputy President: Because I think Mr Healy would accept that one of the problems with ADHD is of course attention and – but I think his response to you would be that that can be managed with the medication. Is it your view that the medication doesn’t manage the inattention or is your view that the medication then leads to a further problem in terms of safety?
Dr Sharma: …. A concern is not so much the behaviour that which the medication will be controlling but a concern is the effect of medication on the cognition and the medication itself, being a central nervous system stimulant, in turn can affect the cognition and it would still will be the concern – if I may add this, that (indistinct) the drug which peaks at around three to four hours and can sustain up to eight hours but what happens when the effect of the medication starts wearing off – and that’s the time when the symptoms of ADHD can reappear and it can affect upon a person who is going to be flying, we do need to consider time of the day, likelihood of missing medication or poor compliance and all this could affect him in the cockpit and in turn can affect the aviation safety.
Ms Swain: Just to expand on that with regard to the safety conditions, often CASA imposes a safety pilot condition. Could you explain why a safety pilot in a person with ADHD on Dex would not be appropriate?
Dr Sharma: To being with safety pilot is applicable only for Class 2 medical certificate but if we have to look at Class 1 it has to be multi crew. However, here is a condition which is permanent and the medication which is required for it is to reduce the symptom – the quantum of the symptom – but it will still continue affecting the uni-cognitive abilities of a person and that may not render him safe even another person is there at times because it is a known fact that if the effect of the medication starts wearing off there could be instances of inattention which may lead a person to lose a situation awareness and if you are the handling pilot and you do not have the situation awareness, it is likely to mislead the other person too. And in that case … I was going to say the problem really is that because of the nature of the disease the safety pilot would –
Deputy President: Is your argument or submission that the safety pilot wouldn’t recognise the symptoms or the problem?
Dr Sharma: The safety pilot is supposed to take over controls if things are not going as planned. But for the safety pilot to understand that there is cognitive detriment in turn affecting the performance may take longer than required in this case.   It’s not a case of, say, a person suffers a heart attack and is, you know, is literally – locks to one side, or the person throwing a fit there, you can see the evidence and you would like to take over control of course and virtually would not even advocate putting a safety pilot. There is a question of a very subtle change gradually happening which may allow the aircraft to continue flying but there will be subtle changes. It could affect the navigation, it could affect the attitude, it could affect monitoring the parameters, so we are basically looking at different aspects of attention, whether it’s focus attention, divided attention or selective attention, as for the phase of the flight as well.
Dr Duke
Ms Swain: If Mr Healy was flying an aircraft and he had a co-pilot or another pilot with him, would it become obvious to that other pilot if the effects of the medication was wearing off?   I would think so. Sorry – yes.
Deputy President: And why would that be obvious?   Well, I think it – my understanding of the role of a pilot is that it requires constant checking of measures such as altitude, speed, thrust, lift – those sorts of things and if somebody was becoming symptomatic with an underlying ADHD as the effects of medication were wearing off their ability to consistently perform those checking tasks would become progressively impaired. I would think that a co-pilot would be able to notice if procedures, policies, check-lists weren’t being carried out to the same standards that they had been carried out earlier in the flight. I think that would be a noticeable change.
Ms Swain: But would the changes though initially be subtle changes that wouldn’t necessarily be obvious?   There would be – it would be a gradual process, yes. So there would be early signs – or early symptoms of the ADHD would come out as the medication was wearing off and as the medication continued to wear out of the system, more of those symptoms would become apparent and obvious over a period of time as the body is cleared from the active component of the dexamphetamine medication.
Ms Swain: So, just to expand on that. If for example it is starting to wear off and you are in a critical phase of flight, is it possible that it could be starting to wear off, you’re in a critical phase and it wouldn’t necessarily be obvious to the co-pilot that there is an issue?
Dr Duke: If there was nothing that the pilot was being required to do at that time of the flight that would be of sufficient perhaps complexity or need sufficient levels of concentration and attention to draw attention to the recurrence of the symptoms by the co-pilot then yes, that would be possible.
CASA has argued that no condition can be imposed on a medical certificate to be issued to Mr Healy which will sufficiently ameliorate the danger to air safety posed by his failure to meet the medical standard. The Tribunal agrees. Due to the nature of Mr Healy’s condition, the medication used to treat that condition (noting, in particular, the unacceptable risk that this medication can wear off) and the possibility that a co-pilot might not notice the effects when this medication wears off, the Tribunal cannot find any conditions that would ameliorate the danger to air safety posed by Mr Healy’s failure to meet the medical standard.
CONCLUSION
Mr Healy struck the Tribunal as a determined and intelligent young man who has, in recent years, overcome some quite significant health issues. His ADHD is now managed and he is determined to excel at all that he endeavours to do. He is to be applauded for his efforts in grappling with this most challenging of health issues.
Unfortunately, Mr Healy’s desire to fly commercially cannot be accommodated by the Tribunal.
The Tribunal must prioritise the safety of air navigation when assessing whether an individual should be awarded a Class 1 and Class 2 medical certificate (pursuant to s 9A(1) of the CA Act). The Tribunal has found that Mr Healy does not meet the medical standard for the issue of a Class 1 or Class 2 medical certificate. Having so found, the Tribunal has also determined that the extent to which Mr Healy fails to meet those standards is likely to endanger the safety of air navigation. Finally, having assessed the nature of the condition and the medicine used to control it, the Tribunal has determined that no conditions can be imposed that would ameliorate the threat posed to air safety by Mr Healy’s failure to meet the Class 1 and Class 2 medical standard.
DECISION
For the reasons outlined above, the Tribunal affirms the decision under review.

I certify that the preceding 52 (fifty two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

.........................[sgd]...............................................
Administrative Assistant
Dated: 19 May 2017

Date of hearing: 30 March 2017

Date final submissions received: 12 April 2017

Applicant: In person (unrepresented)

Representative of the Respondent: Ms C Swain
CASA Legal Services Group

[2017] AATA 741

19 May 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	30 March 2017
Date final submissions received:	12 April 2017
Applicant:	In person (unrepresented)
Representative of the Respondent:	Ms C Swain CASA Legal Services Group